HKSAR v. YIM WAI HAN

HCMA63/2019

[2019] HKCFI 2413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 63 OF 2019

(ON APPEAL FROM KOWLOON CITY MAGISTRACY

CASE NO KCCC 3277 OF 2018)

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REASONS FOR JUDGMENT

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1.  This case concerns an allegation of managing an upstairs pub called “The New King of Thailand” in Tsim Sha Tsui entertainment district by the Appellant, a woman in her late forties, as a vice establishment.

2.  Two undercover police officers posing as partygoers paid a visit to the pub on five separate occasions in the space of two months between May and June 2018, and on each occasion, they were being attended to by the manageress of the pub, the Appellant, who would arrange Thai girls to sit with the officers to play dice.

3.  On the fourth occasion, the officers were accompanied by a woman officer posing also as a customer, and on the last, they were joined by a few more undercover officers, and consequently more Thai girls in the game.

4.  The Appellant would ask the officers to buy coupons at $500, which would then be given to the Thai girls as a reward during the dice game. The girls would cash the coupons from the pub later on.

5.  The rule of the game is very simple: depending on what number comes up when the dice is thrown, either the officer gets the chance to squeeze the breasts of the Thai girls sitting next to him and pays her a coupon as a reward afterwards; or the girl has her head buried in the groin of the officer.

6.  The rules are not strictly followed as the woman officer testified that sometimes the Thai girls might squeeze the breasts of the male officers and then grab the hand of the officer to squeeze hers. However, the main theme of the game is the squeezing of the breasts of the Thai girls. The undercover officers testified that they had done so.

7.  Such a game was played on each and every occasion the undercover officers visited the pub. The appellant once told them that she would reserve two recently arrived pretty Thai girls for them to squeeze in the future and would change the supply of Thai girls fairly often to keep the customers happy.

8.  The police took action on the last occasion which resulted in the Appellant being charged with five counts of managing a vice establishment[1]. The case was heard before Magistrate, Joseph To, sitting in the Kowloon City Magistracy. The Appellant was convicted of all counts following a trial and sentenced to a total term of 8 months’ imprisonment. She now appeals against the conviction.

9.  The Appellant’s represented by Counsel, Oliver Davies, on this appeal as well as in the court below. Mr Davies argues on a very narrow issue on appeal, i.e., the learned magistrate wrongly found that the acts performed by the Thai girls were lewd acts which would amount to prostitution.

10.  First of all, the parties were fully clothed at all times and none of the parties placed their hand inside the clothing of the other party, Mr Davies said. Emphasis was particularly put by Mr Davies on the fact that there was no touching of private parts or masturbation which would be capable of supporting a finding of prostitution; anything short of that, in Mr Davies’s opinion, would not amount to what is commonly understood to be prostitution.

11.  In coming to the conclusion that the acts (breasts squeezing) amount to prostitution, the learned magistrate has this to say:

“36. In the court’s view, what amounts to sexual services capable of supporting of a finding of prostitution is a jury question. It varies from time to time and from place to place, but what the court is concerned with is contemporary standard of decency very much along the lines of R v Court in the context of indecent assault. The question to be dealt with by the jury is this: whether a right-minded or right-thinking ordinary person would regard the act or activities concerned an act or activity of lewdness.”

“37. In this case, the court is concerned with the touching or squeezing of the breasts of females by a stranger, not between parties who are in an intimate relationship. As the court has already found, the game of chance is merely a disguise. The purpose was the provision of the opportunity of breast squeezing. A jury would have no difficulty whatsoever to find that had these kind of activities been performed without the consent of the females, it would have amounted to an act of indecency or lewdness capable of supporting a criminal charge of indecent assault. The nature of the act does not change depending on whether or not it is paid or whether or not the female is a consensual party to it. The court finds beyond all reasonable doubt, exercising its jury function, that the acts and activities complained of by the prosecution amount to acts or activities of lewdness capable of supporting a finding of prosecution.”

12.  Mr Ivan Cheung, Senior Public Prosecutor, for the Respondent, argues that what it boils down to is the question whether the acts in question were acts of lewdness and cites the case of R v De Munck (1919) 13 Cr App R 113 in support, where the court said:

“The court is of the opinion that the term ‘common prostitute’ in the statute is not limited so as to mean only one who permits acts of lewdness with all and sundry, or with such as hire her, when such acts are in the nature of ordinary sexual connection. We are of the opinion that prostitution is proved if it be shown that a woman offers her body commonly for lewdness for payment in return.”

13.  In relation to the imposition of the requirement by the learned Magistrate that the acts involved must be “lewd” by “contemporary standard of decency” or that they were so regarded by “a right - minded or right - thinking ordinary person”, Mr Cheung does not seek to support such a statement saying that the Magistrate has set too high a standard, but in any event, in his view, the Magistrate’s standard would be more beneficial and generous to the Appellant than it otherwise should have been.

14.  Mr Cheung helpfully summarized the acts in question:

(1)  Thai females pressing with their faces against private parts of male customers as part of a game of throwing dice;

(2)  Male customers squeezing the breasts of Thai females as part of a game of throwing dice;

(3)  Thai females on their own volition taking the hands of male customers to touch their breasts.

15.  Mr Cheung submitted that apart from the squeezing or touching of breasts, the Thai females would place themselves apparently in a masturbatory position when they press their faces against the private parts of male customers only but for the fact that the parties were clothed - the above acts are sexual in nature and are definitely acts of lewdness.

16.  I can dispose of this appeal quite quickly. In the examples quoted by Mr Davies, namely, the touching of private parts or masturbation which, he agreed, would be capable of supporting a finding of prostitution, there is a common thread running through them, that’s the physical contacts between a man and a woman. In the present case, the physical contacts are the squeezing of breasts of the girls.

17.  The learned magistrate was right to say that this would have amounted to indecent assault had it not been consensual. With or without consent does not change the nature of the act in question; whichever way one looks at it, to my mind, it is an act of lewdness through and through. The girls are obviously doing it for money - they were rewarded with cash coupons.

18.  Given the evidence before the court, the only inescapable conclusion is that these acts are acts of lewdness capable of supporting a finding of prostitution.

19.  There is no merit in this ground.

20.  The appeal is therefore dismissed.