THE QUEEN v. KAN CHI YUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 306 OF 1988

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BETWEEN

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J U D G M E N T

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1. The appellants were convicted by Mr Eaton at North Kowloon Magistrates Court of assisting in the operation of an unlicensed massage establishment, contrary to section 4(1) of the Massage Establishments ordinance, Cap. 266. Another defendant, who was convicted of the same charge, has not appealed.

2. On the 31st October, 1987, at about 4.20 p.m., PC 1084 (P.W. 1) went to the second floor, 11 Nelson Street, and pressed the door bell of the Kam Dao Shing Steam, Beauty Agency (the 'agency' ). The door was opened by the 1st Appellant (Dl) , who took him to a seat and asked him if he had a 'familiar masseuse'. He answered "No" and the 1st Appellant said he would introduce a masseuse to him. The 1st Appellant left and returned after about three minutes with the 2nd Appellant (D3), a Chinese female. She sat on P.W.1's left and said:"Is it O.K. for to massage you - does it suit you?." P.W.1 answered "Yes."

3. P.W.1 said that the 2nd Appellant asked him for $200 as the massage fee, of which $10 was the introduction fee. He gave her two $100 notes, the numbers of which he had noted and which were produced as exhibits. The 2nd Appellant then took P.W.1 to a door leading from the agency into Fu Lai Villa, which was opened by D2.

4. After they had entered Fu Lai Villa, P.W.1 the 2nd Appellant hand the $200 he had given her to D2. D2 said to him : "Sir, this $200 includes the massage fee and the introduction fee." D2 then asked P.W.1 to complete a registration form with his name and identity card number which P.W.1 did. This was produced as Exh. P2

5. D2 then took P.W.1 and the 2nd Appellant to Room 18 in Fu Lai Villa and, at the same time, he gave P.W.1 $52 change. P.W.l took four 10 dollar notes and left $12 as a tip. D2 then left P.W.1 with the 2nd Appellant.

6. The 2nd Appellant asked P.W.1 to get changed and take a bath. P.W.1 took a bath which lasted for about ten minutes After the bath he returned to Room 18, where the 2nd Appellant chatted to him and massaged his hands, legs and back while he lay on a mattress on the floor.

7. This continued until 1705 hours, when the 2nd Appellant said she had to leave the room. At this point a police team led by P.W.4, Inspector Nott arrived.

8. Inspector Not tasked who was in charge of the agency and the 1st appellant admitted that he was. He was asked if it had a massage licence and he said no.

9. The police seized the following exhibits in the agency:

a)    An invoice in respect of rent receipts in the name of Fu Lai. Villa..

b)An invoice, headed with the name of the agency, recording, payment of a $10 introduction fee.

c) Employee cards in the names of-the 1st appellant and the 2nd Appellant describing them respectively usher and female beautician.

d)18 sets of keys fitting rooms in Fu La Villa.

In Fu Lai Villa the police found a registration form, which had been completed by P.W.1,showing that the rent for Room 18 was $138. "

10. The critical part of the magistrate's statement of findings reads:

"I found as a fact that the 2/F. at No. 11 Nelson Street was operated as massage Establishment, having regard to he evidence that the keys to the rooms in Fu Lai Villa fifty pads of receipts for Fu lai Villa and the invoice relating to the supply thereof were all found in Kam Dao Shing Steam Beauty Agency.

I was a little troubled by the evidence of P.W.1 that the Appellant, D3, asked him for $200 as the massage fee, of which $10 was the introduction fee and that D2 said after D3 had handed over the $200 to him : "Sir, this $200 includes the massage fee and the introduction fee." while shortly thereafter in evidence in chief P.W.1 said that after he gave $200 to the Appellant, D3, she gave it to D2 who gave him $52 change. Cross examined about this and shown exhibit P.2, which shows the room rent as $138, P.W.1 said that D3 had asked him for $148 and that he gave her $200. Pressed further he said the way he expressed it was wrong. I found that the discrepancy between P.W. l's evidence about being told that the massage fee was $200 and a few sentences later he was given $52 change out of $200 indicating a fee of $148 was difficult to explain. Nevertheless I found from his demeanour in the witness box that P.W.1 was to be regarded as an honest and convincing witness whose evidence on other matters was to be accepted.

I accepted P.W.1's evidence that when he went to the Kam Dao Shing Steam Beauty Agency, he was received by the Appellant, D1 is who asked him whether he had a familiar masseuse and when he said no, produced the Appellant, D3, who asked for payment in advance. I accepted P.W.1's evidence that he was then taken to a room where the Appellant, D3, massaged him. It was apparent from the evidence as a whole that the whole operation of receiving a customer for massage ran like clockwork and that there was more than one masseuse."

11. When convicting the defendants, the magistrate recorded a short oral judgment in these terms :-

"Disturbed about quality of prosecution evidence and $200 spoken to by P.W. 1.but whole operation worked like clockwork for operation of unlicensed massage establishment.

12. Mr Macrae, who also appeared for the appellants in the court below, submits that it was unsatisfactory for the magistrate to accept PW1 as an "honest and convincing witness' in the light of his obvious concern as to the accuracy of what was said about the massage charges.

13. PW1 was clearly in error when he said that the 2nd appellant asked him for $200. Exh. P2 shows that the room rent was $138.  The introduction fee was $10. He received $52 change. It was little wonder that PW1 in cross-examination, after being shown Exh. P2, admitted he was wrong and that the 2nd appellant had asked him for only $148. On this evidence it is surprising that the magistrate found the discrepancy difficult to explain.  It was certainly no reason not to accept his evidence on other matters as the magistrate indeed did.

14. Mr Macrae also complains that the magistrate failed to make any finding as to the lst appellant's knowledge and intention. By his finding that the operation 'ran like clockwork', he presumably means that there was evidence of system. Whether or not he was entitled to come to that conclusion on the evidence, once the magistrate accepted that the 1st appellant offered PW1 a masseuse, it would have been perverse to find that he did not know that PW1 was receiving massage in the adjoining ru Lai Villa. There is no room for the suggestion that the 2nd appellant might have been on a 'frolic of her own'

15. 'Massage establishment' is defined in Section 2 of the ordinance as:-

"...any place used or intended to be used or represented as being used for the reception or treatment of persons requiring massage or other similar service or treatment."

16. There was no burden on the Crown to prove that the 1st appellant was unaware that the premises were unlicensed though there was evidence to that effect,

17. Finally, Mr Macrae submits that there was no evidence that there was more than one masseuse and that the magistrate was therefore unjustified in making such a finding. In my view it makes no difference so far, as the convictions are concerned whether there was one masseuse or more. It merely goes to the size of the operation and therefore to sentence. The magistrate was, however, entitled to find, as against the lst appellant, on the basis of the lst appellant's opening remark to PW1, that more than one masseuse was available.

18. The appeals are dismissed.