THE QUEEN v. CHANG MU HUA AND OTHERS

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H E A D N O T E

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Managing vice establishment - six months imprisonment too severe for first offender where no aggravating factors -masseuses not guilty of assisting in management if activities restricted to provision of sexual services.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 1172 of 1988

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J U D G M E N T

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1. 1st appellant was convicted by Mr. Crawshaw at South Kowloon Magistrates Court of managing a vice establishment, contrary to section 139 (b) of the Crimes Ordinance, Cap.200. He was sentenced to six months imprisonment and fined $7.000.

2. 2nd appellant was convicted of assisting in the management of the same establishment and was sentenced to six months imprisonment.

3. Both these appellants appeal against sentence only, having abandoned their appeals against conviction. 1st appellant does not appeal against fines imposed in respect of two further convictions for contravention of the conditions of his licence.

4. 3rd, 4th, 5th and 6th appellants were each convicted of assisting in the management of the establishment. They appeal against conviction only.

5. The premises in question were the Japan Herb Bath and Physical Therapy Company in Austin Road, which is a large and well-appointed licensed massage parlour. It contains twenty inter-connecting cubicle divided by transparent glass partitions, sauna, bathroom, etc.

6. 1st appellant was in charge of the massage parlour, 2nd appellant was an usher, 3rd appellant was the cashier and the other appellants were masseuses.

7. On 22thJuly three undercover police officers visited the premises. They were greeted by 2nd appellant, who escorted them to the changing room where he invited them to take a bath. He later led them to different cubicles and told them a girl would soon arrive.

8. In due course, after massaging the officers for a few minutes, each girl offered to masturbate him for an additional fee. Two officers raid $100 in marked notes before this commenced; the third promised to do so later.

9. Two of the officers said 1st appellant was patrolling the premises and entered their cubicles in the course of masturbation. One of them said he was accompanied by 3rd appellant.

10. The officers each paid 3rd appellant $225 before leaving. They later returned with an Inspector and the appellants were arrested. One of the marked $100 notes was found in a pigeon hole in the storeroom.

11. The appellants did not give or call evidence. The magistrate noted that masturbation was offered do each officer without any prompting. He inferred that the girls were offering this service to all customers and was satisfied that all those working there were aware of the practice He was also satisfied that the additional fee was as much a part of the income of the establishment as the receipts that the cash desk. On the evidence the magistrate was fully entitled to draw these inferences.

12. Counsel for the respondent does not support the convictions of 4th, 5th and 6th appellants. It is rare for prostitutes working in massage parlours to be prosecuted, unless they are also acting as ushers, or otherwise exercising some degree of control in the running of the establishment as in R. v Kung Oi-ho CA747/85. This accords with the line of authorities commencing with R. v Gorman & Parker.(1964)1 QB 294, and including R. v Tam, Kim-leung CA 1081/81. All stress the need to prove a measure of control, as in the case of a cashier or usher, but not a menial employee like a cleaner or the prostitute herself_.

13. In a recent Court of Appeal decision R. v. Cheung Man-ming (1988)1 HKLR 119, in which the court considered whether prostitutes should be treated as accomplices of a person charged with managing the vice establishment where they worked Power J.A. said at P.122-

"The object of the section (S.139) is in our view clear. It is to strike at persons who actively conduct vice establishments. We are satisfied that prostitutes who work at the direction of such persons cannot properly be said to be actively participating in the management so as to make them participes criminis in the offence of "keeping". They are in no different position to that of workers in legitimate industries in whose case no one would suggest that a worker who obeys the orders of his superiors "somehow thereby participates in the management."

14. Finally counsel says that it is new the policy of his chambers that prostitutes, as victims of society, should be taken out of the ambit of the criminal law; only persons who arrange and organise such establishments should be prosecuted henceforth.

15. The appeals of 4th, 5th and 6th appellants are allowed accordingly.

16. Mr. Waley, for 3rd appellant, has sought to persuade me that in the light of the dua1 nature of this establishment, in which legitimate massage was also provided, the magistrate was wrong to draw the inference that 3rd appellant handled the unlawful proceeds of the sexual services or had knowledge of the nature of the girls activities. I do not think this argument is tenable in the face of the unchallenged evidence that she was actually present in one of the cubicles in the company of 1st appellant while masturbation was in progress. Her appeal is dismissed.

17. 1st appellant has a clear record. 2nd appellant has two similar previous convictions, the last in 1983, for which he was fined.

18. Mr. Waley complains that, although prison sentences are clearly justifiable in the case of each appellant, these sentences are out of line with authority. He cites, in particular, R. v Leung Lim-man CA 214/85, in which Jones J. said:-

"........ I agree that an immediate custodial sentence for the 1st appellant was justified for there is evidence that the establishment was likely to earn large profits. Nevertheless taking into account the general range of sentences 9 months imprisonment is too long, for a first offender for this type of offence. 3 months imprisonment would have been quite adequate in this case."

19. In R. v Wong Chi-lung and others CA 285/82 the Court of Appeal reduced a sentence of twelve months, imposed for managing a vice establishment, to one of six months. McMullin V.-P. noted, however, that there had been a rising incidence of this offence in the first four months of 1982 and concluded "should this disreputable trade show further signs of increase or even should it show no appreciable diminution in the months ahead it may well he that still heavier sentences may have to be considered. The present sentences even though reduced are, so far as we are aware, several times greater than anything yet imposed."

20. Counsel for the respondent assures me that he has no instructions that this offence is on the increase. I an satisfied therefore that six months for a first offender is too severe in a case of this nature, where there are no aggravating factors, such as the employment of young persons. It follows that 2nd appellant's sentence must also be reduced.

21. The appeals are allowed. The sentences of 1st and 2nd appellants are reduced to three months and two months imprisonment respectively. 1st appellant's fine will stand.