HKSAR v. MOK YU MING AND OTHERS

HCMA1079/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1079 OF 2000

(ON APPEAL FROM ESCC 2040 OF 2000)

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J U D G M E N T

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1. The 1st appellant was charged with one count of "breach of licensing condition of a massage establishment", contrary to sections 13(2) and 14 of the Massage Establishments Ordinance, Cap.266. The particulars alleged that :

"Mok Yu Ming, on 3 May, 2000, in Hong Kong, you, being the licensee of the Bountiful Sauna, Unit G31, Ground Floor & Unit 101, 1st Floor, Elizabeth House, 250 Gloucester Road, Causeway Bay, a massage establishment in regard to the operation of which a licence had been issued under the Massage Establishments Ordinance, contravened a condition of the licence, by not having ensured that no vice or immoral activities took place in the premises."

2. The 2nd and 3rd appellants were each charged with one count of soliciting for an immoral purpose, contrary to section 147(1)(a) of the Crimes Ordinance, Cap.200. The particulars were stated in similar terms that :

"... on 3 May 2000, at Bountiful Sauna, Elizabeth House, 250 Gloucester Road, in Hong Kong, you solicited police constable ... for an immoral purpose in the said public place."

3. The appellants denied the respective offences and they were convicted after trial. They sought to appeal against their convictions. However, the 2nd appellant was absent on the last occasion. She was absent again at this adjourned hearing. I therefore dismissed her appeal accordingly. The 1st and 3rd appellants proceeded with the appeal. Mr Egan represented the 1st appellant and he had kindly made submissions on behalf of the 3rd appellant, who was unrepresented.

4. The case involved a undercover police operation carried out to check on the activities in Bountiful Sauna ("the Sauna"). On the material date, the two undercover police agents, PW1 and PW3, posed as customers and went to the Sauna. They were led to two separate massage rooms. The 2nd and 3rd appellants were the masseuses attending to the officers. During the massage, both the 2nd and 3rd appellants had offered to masturbate the officers for money. Afterwards, the officers paid with pre-arranged marked money and left the Sauna. On instruction of their senior, they went back to the Sauna for making identification of the persons involved. The 1st appellant, the licence holder, who was elsewhere having dinner, was asked to return to the Sauna. Arrests were then made. According to Mr Egan, this is the first time the masseuses were prosecuted for such an offence.

5. The three appellants all testified at the trial. Their evidence of the case had been clearly summarized by the learned magistrate in the Statement of Findings. Basically, the 1st appellant gave an account as to what he, as the licencee, had done to ensure compliance of the licencing condition. The 2nd appellant denied having masturbated the officer. As to the 3rd appellant, she stated that she merely had a casual conversation with the officer during the massage. The officer had induced her to masturbate him but she refused to do so. Having analysed the relevant factual and legal issues involved, the magistrate concluded that the charges were proved by the prosecution. His reasons were stated in the Statement of Findings.

The grounds of appeal

6. Counsel for the 1st appellant was not defence counsel at the trial. He now raised the following specific grounds of appeal, apart from the general complaint that the conviction was unsafe and unsatisfactory.

(1) The learned magistrate erred in law in finding that the 1st appellant had failed to discharge the onus of proof placed upon him, to the civil standard of proof, of satisfying the court that -

(a) he [the 1st appellant] did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention [of condition 11 of the licence]; and

(b) he [the 1st appellant] could not, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising.

(2) The learned magistrate made findings of fact that were either :

(a) contrary to the evidence;

(b) had no evidential basis in the evidence; or

(c) which speculated on what certain evidence meant, so that the learned magistrate erred in fact in so finding and/or such errors amounted to material irregularities.

(3) The learned magistrate erred in law in finding that each private massage room inside the sauna complex amounted in law to a public place.

It should be noted that the magistrate had found in favour of the 1st appellant on the first limb of the statutory defence of knowledge but against him on the second limb of reasonable supervision and diligence.

Public place

7. As counsel was also arguing the case for the 3rd appellant, I shall deal with her case first. The main point raised by counsel on her behalf was that the massage room could not be held to be a public place. If the place in which the soliciting had allegedly occurred was not a public place, then there would be no contravention of section 147(1)(a) of the Crimes Ordinance. The difference between a public and private place is important as the law is not interested in certain acts if they are done in private. The courts often have to deal with this problem which could arise under very different circumstances. The question now is whether the massage room where the 3rd appellant had served the police officer was, as part of the Sauna, a public place.

8. This issue had already been raised by the defence at the trial. Defence counsel, Mr Poots, had made a very thorough submission on this point before the trial magistrate. Mr Egan said that he would also rely on those submissions, which were, in his view, wrongly rejected by the magistrate. What Mr Poots contented in his written submission was that the two massage rooms in question did not fall within the relevant definition of a public place as stipulated in the Crimes Ordinance. Therefore, even if the alleged act of soliciting had occurred, no offence was committed. The offence in question is listed under Part XII of the Crimes Ordinance. The title of this part is Sexual And Related Offences. In the interpretation section, i.e. section 117, "public place" is widely defined to mean the following :

" a) any place to which for the time being the public or a section of the public are entitled or permitted to have access, whether on payment or otherwise; and

b) a common part of any premises notwithstanding that the public or a section of the public are not entitled or permitted to have access to that common part or those premises;"

9. It may be helpful to recount Mr Poots' analysis. He submitted that :

13) ... whilst the Bountiful Sauna does fall within (a) it is quite another matter when you consider rooms 50 and 53 within the Bountiful Sauna in which the massage service was provided by D2 and D3. Here these are clearly designed to be private and both PW1 and PW3 had exclusive use of the respective rooms for their massage. The definition specifically deals at (b) with 'a common part of any premises' and here the rooms 50 and 53 are clearly NOT a common part. The entrance area, payment area, communal changing room, resting area, and the sauna baths may all well fall within the definition but, for example, the managers office and staff changing room do not. Similarly it follows that the massage rooms by their very design are not public places. I would refer again to the analogy which was used in my 'No Case' submission with an hotel. Undoubtedly the entrance, the ballroom, the restaurants and bars are public places but that does not make the hotel guest rooms public places. From all the evidence before this Court, the massage rooms within the Bountiful Sauna are also not public places within the restricted definition of the Ordinance.

14) PW1 and PW3 went to great lengths to give the impression that they were not in public view when they were receiving service in rooms 50 and 53. They insisted the lighting was dark, the door was closed and no-one else entered the room during the massage."

Mr Egan maintained that defence counsel's analysis was the correct one. He also drew the comparison between the massage room and a hotel room, stating that given the circumstances, the massage room must be a private place.

10. As I pointed out to Mr Egan during his submission, I found that the analogy between the massage room and a hotel room to be inappropriate. There are a number of obvious differences between the two. The guest of a hotel pays for the use of a hotel room. He is given a key to a specific room which establishes his right to its exclusive use. The guest could also, if he wishes, put a sign of "Do not Disturb" outside the door. This would supposedly prevent even the cleaning staff to enter for the time being. However, for a sauna customer who wishes to use the massage service, he is not given a key to the massage room nor was he given the right to exclude staff or other customers. The fact that there is no other customer present in the same room during the course of the massage is neither here nor there.

11. In my view, the learned magistrate had adequately and sufficiently dealt with this issue of public place in his Statement of Findings. He stated :

" .. The two undercover officers had entered, as customers, into the Sauna which is 18,000 square feet in size. It is absurd and in fact wrong to regard the entire Sauna falls within the definition of 'public place'. The management office and staff change-room are examples of private, rather than public place in the premises. I had considered if the rooms where the immoral service provided were a 'public place' within section 117 of the Crimes Ordinance. The evidence of PW1 and PW3 described rooms No.50 and No.53 as each having two beds which suggested that the rooms were not intended for exclusive or private use by PW1 or PW3 who posted as members of the public. The evidence of D1 was that a 'Notice', DE3, was displayed in all massage rooms including rooms No.50 and No.53. The top of the 'Notice' (DE3) stated 'Dear Customers'; it was clearly addressed to the general customers who enjoy massage as members of the public. It was clear that the massage rooms were intended for use by customers who are members of the public; it followed from this that the place where masturbation was performed falls within the meaning of public place. For these reasons, I convicted D2 and D3."

12. In my judgment, the magistrate was right in holding that the room was not a private place. Considering the statutory definition of a public place, as Mr Poots had agreed, the Sauna as a whole would satisfy part (a) of the definition. The question is whether the massage room falls within part (b) as a common part of the Sauna premises. I agree that there must be places inside the Sauna which should be taken as private areas, such as the management officer or the staff changing room. The distinguishing feature, in the present case, is the fact that the massage room was subjected to and regulated by a licence. The conditions of the licence are rather strict and they control different aspects of this massage service. For example, its hours of operation (clause 2), the lighting (clause 14) and even the employment of staff (clause 6), were all subject to the control of the licence. Further, there was the crucial condition that the licencee shall ensure that no vice or immoral activities take place in the premises, i.e. clause 11. Clause 9 is even more restrictive. It stipulates that :

"9. In order that the licensee may adequately supervise the massage establishment, treatment of males by females or vice versa shall only be carried out in those parts of the licensed premises open to general view and with sufficient lighting. No light rheostats are allowed in the premises. No massage treatment shall be conducted in seclusion."

13. The licensee had accepted these conditions for the running of the massage establishment and they are apparently incompatible with the concept of a private place. One may even suggest that the conditions are deliberately designed to prevent the massage rooms to become private places. An indicator of a private place is "seclusion" but here it would be a breach of the licence if the massage is actually carried out in seclusion. Perhaps the main concern of the conditions, apart from regulating the establishment generally, is to ensure that the massage rooms would not deteriorate into a hidden corner of lewd service.

14. I accept Mr Poots' submission that the section primarily aims at cleaning up the streets, so that members of the public could come and go without being troubled by common prostitutes. If the statute intends to prevent members of the public from being embarrassed by the approach of prostitutes in the street, there is all the more reason why this law should be applicable in the massage room where members of the public meet with the staff of the establishment for a massage. When being accosted by a street prostitute, the person may be embarrassed but he could ignore it and walk away, but his situation could be rather awkward when the masseuse makes the offer of an immoral service during the course of a massage. I could see no basis to say that the legislation does not intend to cover such a kind of mischief. The concept of public place should not be construed restrictively in this context.

15. As I said, I agree with the magistrate's conclusion. The massage rooms were correctly held to be public places. The reasons are (1) the magistrate was entitled to find, based on the evidence surrounding the set up of the massage rooms, that they are to be regarded as public places; (2) when the massage rooms were subject to the type of licence conditions in quesiton, they could not be considered as private places and; (3) the statutory definition of a public place is wide enough to cover the massage rooms. Even if the rooms were being used exclusively by the individual officers at the material time, they were nevertheless a common part of the Sauna premises. That being the only substantive issue raised by the 3rd appellant through Mr Egan, her appeal must be dismissed.

16. As to the case of 1st appellant, the gist of the appeal was that the learned magistrate had adopted a speculative approach in the analysis of the evidence. Mr Egan had made the following criticism in his submissions :

"Suffice it to say that the main complaint is that the magistrate speculated about matters that were not put forward as the basis of the prosecution case, were not dealt with by the parties during the course of evidence and which neither counsel dealt with during the course of submissions.

It is as if the learned magistrate, either during the course of the trial or perhaps later when he was considering his verdict, took a view of the case that had never been advanced by either side, and therefore never dealt with by counsel for either side, and decided the case on that basis or these bases."

17. Mr Egan had made reference to the authority of Chan Cheung Chor¹ in which he himself had appeared as counsel for the appellant. In that case, counsel argued, inter alia, that the defence was deprived of the opportunity to address the court on matters relating to the entries in the note books. What transpired in the trial was that the prosecution had produced three note books seized by the ICAC officers after the arrest of the appellant. The prosecution sought to rely on just a few specific entries in these note books but the learned judge had wrongfully made use of other entries to reject the appellant's account. The Court of Appeal held that the learned judge had committed an error although she was entitled to draw inferences from the relevant entries. The Court of Appeal stated the following :

" The samples entries referred to by the judge are clearly not relevant to the offences. The prosecution had never relied on these to establish their case. Clearly these entries were not intended to be evidence at the trial. As may be seen from the transcripts of the trial, only specific entries but not the whole note books were put in evidence. This is made even more clear by the fact that there are no translations certified or otherwise of the other entries in the note books. The judge should not have gone through all the entries contained in the three note books to find supporting evidence. The applicant was never asked about them at the trial. If he were, he might have an innocuous explanation to them. The judge had relied on extraneous matters to conclude that the applicant was telling lies in his evidence and to find the applicant was not credible despite his clear record and to form her opinion of the relationship between PW1 and the applicant. The defence had been deprived of the opportunity to address to these matters. This is a material irregularity which is fatal to the conviction."

18. Counsel also referred to the authority of Chow Kin Lam². In this case, the prosecution had sought to produce a video tape which contained the appellant's confession at the trial. The admissibility was being objected to. The learned judge listened to the tape in her chambers instead of doing it in open court and subsequently made certain findings against the defence based on the contents of the tape. The appeal was allowed as there was a material irregularity in the course of the proceedings.

19. In the present case, none of the circumstances in the two cited authorities had occurred. There was nothing done in the absence of the defence and the magistrate had not referred to evidence which was not meant to be admitted. The learned magistrate had explained why he had found that the defence provided by section 13(2) of the Massage Establishment Ordinance was not made out by the licensee. I believed that the two authorities cited had no application in the present case.

20. The magistrate had found that the overall evidence of the 1st appellant suggested that he had over-delegated his supervisory responsibilities to other staff of the Sauna without having any follow-up system to ensure the delegated work had been effectively performed. He concluded, therefore, that the 1st appellant could have prevented the breach in question by the exercise of reasonable supervision and reasonable diligence. Mr Egan argued that the magistrate had taken a view of the case that had never been advanced by either side and, effectively, he had denied the defence of the opportunity of answering the basis of the conviction.

21. I have taken time to consider the examples cited by counsel in his skeleton submission in support of his contention. I found I was unable to agree with counsel's criticism. It was true that there was the specific reference to condition 5 of the licence by the magistrate. But I could not accept Mr Egan's submission that the magistrate was not entitled to consider any other conditions in the licence except clause 11. As the respondent had stated, the licence was admitted by consent and no restriction was put on the use of its contents. In a case where the defendant was alleged to have breached one of the conditions of a licence, and where the statute provided for a "reasonable diligence" defence, surely the whole circumstances, including all the conditions, would be relevant matters for considerations, for or against the defendant.

22. As to the other matters raised by counsel, they were simply part of the whole factual matrix of the case. The magistrate was really using his common sense to evaluate and assess the evidence. The magistrate was not obliged to discuss all the different angles and permutations of the evidence with the defence. It was up to the licensee to satisfy the court that the statutory defence had been established.

23. Considering the magistrate's analysis, I could not agree that he had actually imposed a near impossible task on the 1st appellant and treated the offence as if it was an absolute offence. The magistrate had simply reached a conclusion based on his view of the evidence of which I could find no basis to interfere. There is no lurking doubt in the circumstances.

24. The 1st appellant's appeal must also be dismissed.

1 HKSAR v. Chan Cheung Chor CA No.441, 1997

2 R v. Chow Kin Lam [1994] 1 HKC 386