CHAN SHU KWONG and Another v. R.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 969 OF 1996

------------------

-------------------

----------------------

J U D G M E N T

----------------------

1. The appellants were convicted on 15th July 1996, the 1st appellant in respect of managing a vice establishment and the 2nd appellant in respect of assisting in the management of a vice establishment. In order to prove that premises were being managed as a vice establishment it was pointed out by Keith, J. in R. v. Law Tin Ching Mag.Cri.App.No.368 of 1993 :

" The question whether premises have been kept as a vice establishment involves two issues. First, were the premises a vice establishment? Secondly, if they were, were they kept as a vice establishment? There is a statutory definition on the first issue and authority on the second."

2. Mr Callaghan takes no issue with the fact that on the day in respect of which these charges were brought, the premises were used as a vice establishment. What he does take issue with is that there was no evidence that the premises were kept as a vice establishment, and that secondly, the learned magistrate failed to consider the evidence properly or at all and failed to have in mind which test had to be applied and that he must find specifically that the premises were kept as a vice establishment. In respect of the 2nd appellant, Mr Callaghan argues that there was no evidence to support a finding that he was assisting in the management of a vice establishment were it found that the premises were being so kept.

3. Firstly, I am satisfied that the learned magistrate had in mind that he must consider whether or not the premises were kept as a vice establishment. At p.70 of his Findings, he finds as an element of the offence that the premises were kept :

"(b) it was kept as such on the material day."

Further at para.13, he says :

"All these pointed to one and only one conclusion, namely, that this premises was a vice establishment and was kept as such on the day in question."

4. Mr Callaghan argues that the use of the words "on the day in question" at one point in the Findings and "on the material day" in the first reference in the Findings means that the learned magistrate had directed his mind as to a single day only in respect of finding the premises were kept as a vice establishment. With respect, I do not agree. The learned magistrate was doing no more than fixing a point in time at which he found that the keeping was in progress, necessarily that was the day upon which the offence was alleged to have been committed.

5. The learned magistrate must have had in mind the authorities because he directed himself specifically to whether the premises were being kept as a vice establishment. The leading authority on the matter is the case of Wong Chi Hung v. R. [1982] HKLR 361 where McMullin, V.-P., delivering the judgment of the Court of Appeal, said at p.365 that what was required to prove premises were kept as a vice establishment is :

"... evidence sufficient to show a pattern of main user which will usually involve some degree of persistence in time beyond what would be supplied by evidence of a single transaction."

He went on to add :

"[That] will usually be proved by evidence which results from surveillance of the premises over a relatively protracted period. But it might also, in a given case, be established by proof of what has been observed upon a single occasion where the circumstances are such as to yield no other conclusion than that the conduct of the forbidden kind was not only then going on but (from the layout of the premises, documents, registers, books of account and the like) that the premises had been so used, whether by the accused or some other person, for a considerable period prior to the police raid or whatever intrusion had brought the evidence to light."

I respectfully adopt that passage.

6. Having found that the learned magistrate had the appropriate authorities in mind and had directed his mind as to whether the premises were kept as a vice establishment, it is necessary to look to the evidence to see whether it was sufficient for him to show a pattern of main user necessary to show some degree of persistence of use.

7. The learned magistrate set out the evidence before him. He found that the premises comprised 19 cubicles or bedrooms each with a bed. He found that in each of those rooms were supplied a condom and the only inference which can be drawn from such supply is some sexual activity which amounts to the use of the premises as a vice establishment. Further, at the reception counter where the 2nd appellant was seated were found five unopened boxes of condoms together with ten loose condoms. The inference to be drawn from that is that the loose condoms had come from an opened box. Further, there was a restroom for the use of the girls in the premises and condoms were found in that restroom.

8. In all the circumstances, the magistrate was entitled to find from the layout of the room and the presence of those aids to sexual activity and their distribution that the premises had been persistently used for a sufficient period of time to amount to a keeping of them as a vice establishment.

9. I am minded with the words of Mortimer, J.A. in Cri.App.No.240 of 1996 where he said :

" In substance, this Court is asked to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the judge who heard and saw the witnesses at trial. This is not an exercise that this Court can undertake unless it is shown that the judge in some way failed in his duty. We must ask, has the judge's evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way? In spite of careful, well presented and attractive submissions by Mr Grossman QC, this has not been demonstrated."

10. Mr Callaghan asks me to find that the reasons of the magistrate are lacking, careless or flawed in a substantial way as he does not specifically point out those pieces of evidence which made him sure that the premises were being kept as a vice establishment. It is not necessary for a magistrate to go into such detail and I cannot, on the face of the Findings, find that he has in any way been lacking, careless or flawed in his approach.

11. The last matter I must deal with is that of the 2nd appellant and as to whether there is sufficient evidence to prove that he was assisting in the management of the premises as a vice establishment. He was collecting the money from those who entered the premises. He was found to be sitting at a reception counter in which or on which were found five unopened boxes of condoms and ten loose condoms in premises where condoms were distributed throughout each room of the establishment. There is only one reasonable inference to be drawn from that and that is that he was assisting in the management of the premises which were being kept as a vice establishment.

12. The appeal of each of the appellants in respect to this matter is dismissed.