HONG KONG SPECIAL ADMINISTRATIVE REGION v. LAI WAH

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.456 OF 1997

(On appeal from NKC 1029 of 1997)

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J U D G M E N T

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1. The appellant, LAI Wah, was convicted after trial on a charge of assisting in the management of a vice establishment. He now appeals against such conviction.

2. The prosecution's case against the appellant consists mainly of certain admitted facts under Section 65C of the Criminal Procedures Ordinance. On such admitted facts there could be no doubt that on the dates in question, namely, 12 to 13 February 1997, the premises in question, that is 11th Floor, No. 490 Shanghai Street, Mong Kok, Kowloon, were being used as a vice establishment. There was no dispute that various men went to the said premises and were offered sexual services by women. There was no dispute that the said premises consisted of some five rooms together with a sitting room. And after the police raided this premises, significant numbers of condoms were seized from the living room and various numbers of condoms were also found in at least four of the five rooms in question.

3. It was also agreed that when the party of police officers pressed the doorbell of the said premises with a search warrant, it was the appellant who opened the door initially. But after he was shown a warrant card of the police officer and the search warrant and after the police declared their identity, the appellant closed the door at once and then a man's voice was heard to the effect that, "Police - flee." Because of the closing of the door by the appellant, the police found it necessary to force open the iron gate, the iron grille and the wooden door to gain entrance into the premises.

4. Inside the premises the appellant was found to be present in the living room and there was no dispute that a number of prostitutes and a number of customers were found inside some of the rooms. The appellant together with another person inside the premises were arrested and under caution, the appellant gave a statement in which he admitted to have worked and lived at the said premises for a number of months before the police's raid. I think he said he started working and living there in November of 1996, so until the time of February, he would have been there for a period of about three months.

5. He also said he was responsible for the cleaning of the premises as well as servicing the customers by opening the door sometimes. He said he knew the only purpose that a customer would go to this place was to look for sex with prostitutes. The appellant, in his statement, also admitted that he knew his co-accused would page someone to bring prostitutes to the premises to serve the customers whenever the customers frequented or patronised this particular establishment.

6. He said he himself would not be involved in the collection of money from the customers. It was the co-accused who did it and it is the co-accused who would collect from customers for the services rendered to the customers by the prostitutes who were summoned to the premises. The appellant also admitted that he was aware that condoms would be supplied by his co-accused for customers to use when they were having sex with those prostitutes.

7. I have considered the able argument of Mr WONG, but I am of the view that the evidence by way of the admitted facts alone was overwhelming in support of the charge against the appellant. In my view, from the admissions he made in the record of interview alone, he had in fact admitted to have taken part, a part of some significance, in the running of the vice establishment in question. Those facts as admitted by the appellant himself provide ample evidence to satisfy the criteria as set out in the case of TAM Ping-lam, Criminal Appeal No. 1081 of 1981. Such evidence suggested that the activities on the part of the appellant bore a direct relationship to the provision of the immoral services which were available in the premises in question and that what he did was something which was necessary to the proper functioning of the vice establishment in question. And there was no dispute at all material times, the appellant was fully aware of the nature of the establishment in question and, in my view, what he did, as admitted by him in the record of interview was a clear indication that he was in fact assisting in the running of that establishment.

8. In this appeal it was suggested that the learned Magistrate was wrong in concluding that the appellant was the man who shouted, "Police - flee" and that he closed the door immediately after being told of the police identity in order to prevent and obstruct the police from carrying out their duty and therefore was acting as a lookout.

9. In the course of counsel's argument I have observed that this aspect may not be of such significance as irrespective of the role played by the appellant in this particular establishment or irrespective of the purpose for his presence there, it would be natural for him, bearing in mind his knowledge about the nature of the establishment in question, that he would try to do something to obstruct the police or even try to warn others inside the premises of the presence of the police party.

10. In any event, on the matter before the learned Magistrate, the learned Magistrate was entitled to draw such an inference. I think it's right that when there was no dispute that the appellant opened the door and when being told of the presence of the police office with a search warrant, and then he at once closed the door and then the police heard a man shouting, "Police - flee", it would be an irresistible inference that the learned Magistrate was entitled to draw; namely, that it was in fact the appellant who tried to warn the others inside the premises of the arrival of the police party.

11. I have considered the evidence presented by the prosecution. I am firmly of the view that the matters, as agreed by the appellant, were clearly adequate to enable the learned Magistrate to conclude, as he did, that the appellant was in fact involved in the assisting of the vice establishment in question, when the appellant chose not to give evidence or to call any evidence. Having said that, of course, it doesn't mean that I am imposing any duty on the part of an accused to give an explanation, I just meant that there was no evidence from the defence to undermine or explain the prosecution's case against him. In my view, on the evidence before the learned Magistrate, his conclusion really was an irresistible conclusion. The learned Magistrate, in my view, dealt with the case impeccably and his reason cannot be faulted.

12. It is also suggested as an alternate grounds of appeal that the learned Magistrate had made certain comments in the course of the proceedings, which comments suggested that he might have given the impression that he had taken side with the prosecution and thus lost the appearance of neutrality. Mr WONG referred the court to certain passages in support of his contention on this aspect. I have considered those relevant passages as pointed out by Mr WONG on behalf of the appellant. I do not accept that such passages support the contention that there had been a lack of neutrality on the part of the learned Magistrate. I do not accept the comments by the learned Magistrate support such contention at all. A magistrate, just like any other reasonable tribunal, must ensure that the proceeding before him is proceeded with fairness and that the proceeding must proceed smoothly. The complaint that the learned Magistrate appeared to have lost his sense of neutrality had not been made out. In my view, on the evidence which, as I said, are really unchallenged the appellant was rightly convicted of the charge. There is nothing unsafe and unsatisfactory about such conviction; and in the circumstances, the appeal must be dismissed.