HKSAR v. FOK WAI MAN

HCMA393/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.393 OF 2003

(ON APPEAL FROM KCCC 1421 OF 2003)

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J U D G M E N T

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1. On 24 March 2003, the appellant was convicted after trial of an offence of breaching licensing conditions of a massage establishment, contrary to sections 13(2) and 14 of the Massage Establishments Ordinance, Cap.266.

2. She was fined the sum of $20,000 and she appealed against her conviction. Her initial ground of appeal was that "there was no evidence, or no sufficient evidence whereon to found the said conviction".

3. On 20 May I allowed the appeal, quashed the conviction and set aside the fine saying that I would give my reasons for so doing when time allowed.

4. These are my reasons.

The prosecution case

5. On 24 July 2002, four ICAC officers posing as prospective customers entered the establishment rejoicing in the name of the 'Queenie Court Sauna' in Yau Ma Tei. They were met by a staff member who (upon enquiry) explained that there were three levels of 'services' available and that each masseuse would explain the difference. Each of the four officers was led to a separate room. In their respective rooms two of the officers were told what services were available by their masseuses. Those two officers had with them audio recording equipment which recorded the conversations between each officer and his masseuse. After approximately 30 minutes other ICAC officers came in to raid the premises.

6. The audio recordings of the conversations between the two ICAC officers and their respective masseuses revealed descriptions of the various services available which services were (upon a not unreasonable interpretation) of a sexual nature.

7. The appellant was at all material times the licensee of the sauna/massage parlour, and it was a condition of her licence that "no vice or immoral activities should take place" therein. She was not present at the time of the 'raid' by the ICAC officers.

The trial

8. Evidence for the prosecution came from one witness alone who said he was led to a room and (upon his enquiry) he was told of the services available as confirmed by the audio recording of the conversation. The two recordings referred to in paragraph 5 above were admitted into evidence for the purpose of proving what was said, and not the truth of what was said.

9. A no case submission was made on the basis that no vice or immoral activities had in fact taken place; but on the authority of R. v. de Munck [1918] IKB 635 (see Archbold 2003 paragraph 20-202) and Woodhouse v. Hall, 72 Cr.App.R.39 DC (see Archbold at 11.6/11.7) the magistrate was persuaded that there was a case to answer.

10. The appellant herself gave evidence to the effect that she did not know and had no reason to suspect that there were any vice or immoral activities taking place and that beyond what she had in fact done she could not have prevented the vice or immoral activities (as alleged by the prosecution, i.e. the conversations between the ICAC officers and the masseuses) from taking place.

Additional grounds of appeal

11. Four additional grounds of appeal were advanced before me by Mr Midgley on behalf of the appellant as follows :

"1. There was no, or insufficient, evidence that vice or immoral activities had taken place in the premises.

2. The Learned Trial Magistrate was incorrect in finding that the two masseuses were 'soliciting to offer sexual services', ... and that the masseuses 'initiated the talks, .... This is evident from the transcript of the audio recording.

3. The Learned Trial Magistrate was in error in finding the statutory defence provided by Section 13(2) of the Massage Establishments Ordinance had not been established.

4. The Learned Trial Magistrate erred in finding that the licensee had not taken appropriate preventive or supervisory measures ..."

12. Before going further I should perhaps set out the relevant part of section 13 of Cap.266 which reads as follows :

" (1) Any person who on any occasion operates, keeps, manages, assists in any capacity in the operation of, or assists in the management of, a massage establishment in regard to the operation of which a licence has been issued under this Ordinance otherwise than in accordance with the conditions of the licence commits an offence.

(2) Where a condition of the licence is contravened the licensee shall be guilty of an offence unless he satisfies the court that

(a) he did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention; and

(b) he could not, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising."

13. The particulars of the charge facing the appellant before the magistrate were these :

"FOK Wai-man, on the 24th day of July 2002, in Hong Kong, being the licensee of Queenie Court Sauna situated at Basement and Portions of G/F., Pollock Building, 9-10 Tak Hing Street, Yau Ma Tei, Kowloon, a massage establishment in regard to the operation of which a licence has been issued under the Massage Establishments Ordinance (Cap. 266), contravened a condition of the licence, namely no vice or immoral activities shall take place in the premises."

And it must follow from those particulars that the prosecution was required to prove that on 24 July 2002 there was some vice or immoral activity taking place in the premises.

14. In that context (and although nothing turns upon it as I allowed this appeal based on the magistrate's approach to the defence case) I am bound to say (in relation to the first additional ground of appeal) that I have some difficulty in equating the taped conversations between the ICAC officers and the masseuses with vice or immoral activities. It seems to me that, at most, what took place were conversations of a light hearted nature relating to what might possibly take place and at what cost to the officer. Did those conversations amount (of themselves) to 'vice or immoral activities'? Having looked at the transcripts of those conversations I very much doubt it, as I doubt that the ladies concerned were offering services rather than simply answering questions put to them by the ICAC officers (who might be described as 'agents provocateurs') which answers were subsequently used to found the prosecution of the appellant.

15. What the magistrate said about what the prosecution had to prove was this :

"(i) The Appellant was at the material time the licensee of the Sauna;

(ii) The Sauna was licensed under the Massage Establishment Ordinance;

(iii) It was one of the conditions in the licence that no vice or immoral activities shall take place in the Sauna; and

(iv) Vice or immoral activities did take place in the Sauna at the material time.

There was no dispute on the first 3 matters and those matters were readily proved. What in dispute was whether vice or immoral activities had taken place in the Sauna.

I was [left] in no doubt that both conversations were about provision of immoral service. Having regard to the whole circumstances and the content of the conversation, I was satisfied that I could draw the only irresistible inference that it was the case. What the masseuse said to the ICAC Senior Investigator, ... was indeed far from being implicit. That some of the terms used meant sexual activities was obvious to ordinary decent local people.

In reaching the decision, I took into account that no actual sexual or immoral service had been provided or performed, not even preparatory steps. There was no evidence that condom or any pornographic item was found. There had been no act or attempt to block the view through the window. On the other hand, massage service had only been carried on for about 25 minutes and there would have been time to carry out the immoral activities if intended.

[I just interject here to say that I do not understand the point which the magistrate was seeking to make in that last sentence unless he meant to say 'would not have been time'.]

The Appellant, when testified, said she had queried the two masseuses and both of them told her that they were only joking. Neither party called the two masseuses. I gave this piece of evidence little weight.

...

All in all, despite the setting of the premises on the face was consistent with an innocent establishment, ... I was satisfied beyond reasonable doubt that the two masseuses were soliciting to offer sexual services. By the standard of the community, this was immoral activity. I therefore found that a condition of the massage licence had been contravened."

16. What caused me much more concern (as I have suggested in paragraph 14 above) was the magistrate's approach to the defence case (and in particular to the provisions of subsection (2) of section 13 of the Ordinance set out in paragraph 12 above) as complained of in the 3rd and 4th additional grounds of appeal set out in paragraph 11 above.

17. Inter alia what the magistrate said about that matter was this :

" In considering the case, the fact that the Appellant was a person of clear record remained always at the forefront of my mind. I understood fully this factor was relevant both to her credibility and propensity to commit an offence.

...

The Appellant said she did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention.

In considering this issue, I had had regard to the setting of the premises and all evidence including the following matters.

There was no evidence that the set up of the premises was not in accordance with the legal requirements. Indeed as I have said, its design and setting were consistent with an innocent establishment.

There was no evidence that on this occasion there had been any attempt to block the view into the room. There was no evidence, including the photographs taken of the premises, which showed that there existed any hook or similar items for hanging things to facilitate temporary blocking of sight. Lighting inside the room did not have dimming effect.

The Appellant was not at the scene when the officers posed as customers arrived.

The Appellant said that incident of this nature had never taken place before and there had been no complaint of this nature from any source. There was no evidence to the contrary.

She told the court that preventive or supervisory measures, including mainly the following, had been put in place :

(i) when each masseuse was interviewed during recruitment, she was told that immoral service was forbidden;

(ii) a stipulation to this effect was included in the employment contract with each masseuse, including the two in question;

(iii) when the masseuse first reported to duty, an advice forbidding immoral activities was supplied to her for signature.

(iv) in the formal and informal meetings conducted regularly with the staff including masseuses, staff were frequently reminded not to involve in such activities, records were produced;

(v) the premises were designed and set up according to legal requirement;

(vi) notice forbidding immoral activities was put up in each massage room;

(vii) there were patrols on frequent basis by supervisory staff, record was produced.

I considered the case on the basis that the first six measures had been performed.

I also took into account that employment of the two masseuses in question was suspended after the incident, and indeed terminated after the Appellant was charged."

18. Having apparently then accepted the appellant's evidence regarding the measures (i) to (vi) set out in paragraph 17 above, the magistrate then appears to have engaged in some personal detective work to discredit measure (vii) albeit that there was no real evidence before him permitting him to do so. In effect he set off on a frolic of his own as can be seen from the following passages in his Reasons for Verdict :

" The Defence produced 4 patrol record books. They showed patrols at very frequent intervals on regular basis. The intervals were often less than 10 minutes. These patrolling duties were performed by managerial staff, including sometime the Appellant herself. There were 16 massage rooms in the Sauna. The Appellant said the patrol took about 2 minutes to complete.

...

The patrol records were not too difficult to fabricate. In this regards, I noted two matters. Apparently, same type of ink was used over a relatively long period of time, at different points of time and by different persons. It caused me to suspect that the records were made in one go. A comparison with the record of meetings readily revealed the marked difference. Whilst this might have been a result of a pen provided by the company being put together with the record book, there was no evidence in this respect. This was a factor I borne in mind when considering the issue of reasonable supervision and reasonable diligence. I, however, did not give this matter much weight since it had not been canvassed during the trial.

I was also concerned about the strong smell coming from the three older patrol record books. The smell is consistent with smoke smell. There also appeared to be burnt marks at the edge of these three records. No such feature was noticed in the latest record. I began to consider whether this was indicative of an attempt to make a newly prepared document look old. This matter had not been canvassed during the trial. There was no expert evidence. In the circumstances, I decided not to draw any inference from this observation."

19. I simply ask myself, rhetorically, why then did the magistrate see fit to mention these matters if he was going to ignore them and nobody else had referred to them.

20. In any event he then proceeded to conclude as follows :

" I was satisfied that the Prosecution had proved beyond reasonable doubt that the Appellant was, at the material time, the licensee of the Sauna, which was licensed under the Massage Establishment Ordinance. I was also so satisfied that there was a breach of a licence condition because immoral activities did take place.

I found that, on balance of probabilities, that the Appellant did not know and had no reason to suspect the existence of the circumstance giving rise to the contravention.

I found that, on balance of probabilities, that the Appellant could, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising; but she failed to do so.

Accordingly, I convicted her of the offence charged."

21. Suffice it to say that assuming - as the magistrate plainly did - that the mere conversation between the ICAC officers and the masseuses amounted to a 'vice or immoral activity' (which as I have said I doubt) I cannot think of what the appellant might practically have done to prevent the masseuses from speaking to the ICAC officers (in the terms in which they did speak to them) other than by closing down the business altogether or by stationing somebody from the managerial staff in each of the massage rooms throughout business hours which would doubtless have the effect of closing it down for lack of business.

22. It was for all of these reasons that I allowed this appeal.