HKSAR v. WONG TAI CHUNG

HCMA 570/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 570 OF 1999

(ON APPEAL FROM ESCC 308/1999)

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on a charge of breaching a licensing condition which applied to a massage establishment, contrary to Section 13(1) Cap. 266C of the Massage Establishments Ordinance.

2. The facts, which were not in dispute, show that in April 1998, 2 warning letters had been sent to the establishment of which the Appellant was the licensee, advising that vice services had taken place on the premises. Undercover police officers were again given vice services on two occasions on 25 September 1998. As a result the present charge was laid.

3. The Magistrate considered the evidence of the Admitted Facts and additional evidence given by the police officers who were present at the raid and by the undercover agents. He also heard evidence from the Appellant.

4. The first ground of appeal was that the Magistrate erred in convicting the Appellant because there was no evidence sufficient to found the conviction; in particular that his finding of guilt was inconsistent with the information laid and contrary to the evidence adduced. It was submitted that the particulars stated that the offence was one of allowing vice or immoral activities to take place in the premises, but there was no such condition in the licence.

5. Although in the charge as laid specific reference was not made to licensing Condition No. 11 which prohibits vice or immoral activities, there is nothing wrong with the charge in the form which is laid. To specify the precise licensing condition may have clarified the matter more particularly, but there could be no doubt in the court's mind or in the mind of the defence as to which licensing condition was in issue. There is no substance in this ground.

6. The second ground was that the Magistrate erred in finding that the Appellant had failed to make out a defence under Section 13(2) of the Massage Establishment Ordinance. That section provides a defence to the charge, if the person charged proved he did not know and had no reason to suspect the existence of the circumstances giving rise to the contravention; and he could not, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising. The evidence at the trial was directed chiefly to whether or not this statutory defence had been made out.

7. Various matters were put before the court by the Appellant, or on his behalf, stating what arrangements had been made by the Appellant for supervision of staff and for the physical conditions provided in the sauna establishment itself. The Magistrate considered those matters carefully but found that the Appellant had failed to establish the defence. In particular, he did not accept the Appellant's evidence that there was a specific notice capping the tips allowed to masseuses; he did not consider that the way the bills were said to be drawn was probable or credible; nor was he satisfied about the visibility of the rooms at the time of the offences. He accepted the evidence of the witnesses that the lights were off in the rooms and that the rooms were dark when vice services were provided. He was not satisfied that the structural changes made to the windows of the masseuse rooms were genuine structural changes, but referred to them in his Statement of Findings as cosmetic changes only.

8. The Magistrate was fully aware of what needed to establish what was a strict liability offence. He took all those matters into account when considering the case against the Appellant and, in my view, correctly exercised his power to convict.

9. It was suggested as a further ground that the Magistrate failed to assess and evaluate various parts of the evidence.

10. Having considered the transcript of the trial and having considered the Magistrate's Statement of Findings, I am satisfied that he did take into account all the matters that he should have evaluated. It was for him to decide, having considered all the evidence, whether or not the statutory defence had been made out. He found that it had not been. The conviction on this case must stand. The appeal is dismissed.