THE QUEEN v. CHENG SUNG HIN

HEADNOTE

                Vice establishment - Wholly or mainly used for prostitution Contemporaneous innocent letting of rooms in apartment house - Conviction quashed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 498/85

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of keeping a vice establishment, contrary to Section 139(a) of the Crimes Ordinance.

2. At 8 p.m. on 14th February this year a police party, led by Inspector LEE Chu-kin, executed a Woman and Juvenile Authorisation at the Yen Yan Apartment House in San Po Kong. The appellant was at the counter when the party entered the premises and admitted, in reply to Inspector Lee's question, that he was the person in charge.

3. There were between 10 - 20 rooms in the apartment house and they were all checked by the police. In one room. Chinese man and a Thai woman were found, both of them gave evidence. Other rooms were occupied, but there was no evidence as to how many persons were present in the premises. According to Inspector Lee there were "genuine" customers in the other rooms.

4. The Chinese man admitted asking the appellant if a woman was available. The appellant replied that both Chinese and Thai women were available, and it was agreed that the man would pay $140 for a Thai girl. She duly appeared and intercourse was taking place when the police arrived.

5. The Thai girl admitted that she was a prostitute. She had visited that apartment on both 13th and 14th February for the purposes of prostitution, entertaining three customers on 13th and two on 14th. She came in response to a phone call and went to the room indicated by the appellant's wife.

6. The appellant did not give evidence or call witnesses.

7. Section 117(3) of the ordinance provides :-

"Premises, vessel or any place shall not be treated as a vice establishment for the purposes of this Part unless -

 

8. There was evidence of a subsequent police raid on 18th February, which related to a similar charge against the appellant's wife, who was also convicted but has not appealed. This evidence showed that two prostitutes were plying their trade in the premises on 18th February. On 14th February there was only one prostitute present.

9. There is no doubt, however, that the procuration of the Thai girl by the appellant was done ''in connection with the organising or arranging of prostitution'. The question is whether the premises were used wholly or mainly for that purpose.

10. The magistrate's only reference to this aspect of the case is in paragraph 11 of his statement of findings, which reads, "Whilst there was some evidence that the apartment house offered accommodation for legitimate purposes, I was satisfied that the services of prostitutes were made readily available to male patrons, and that both defendants carried on business on this basis.' No objection can be taken to this statement so far as it goes, but the magistrate has apparently not gone on to consider the words ''wholly or mainly" in Section 117(3).

11. Their meaning was discussed in Attorney General v. TANG Ping wing, ⁽¹⁾ This was a case in which it was alleged that the premises of an escort agency were used mainly for the purpose of organising or arranging prostitution. The magistrate found no case to answer on the grounds that during the daytime the premises were closed.

12. The Court of Appeal held that this was the wrong approach. Li, J.A. Said at page 3 : -

"In his conclusion the learned magistrate appeared to have erred in his interpretation of the phrase "wholly or mainly". It is implicit in his finding that he required the prosecution to adduce evidence as to the nature of the user of the premises for all 24 hours in a day and to negative any other user than that of organising or arranging prostitution for the major portion of that period. Otherwise he would not have held that there was no case for the respondent to answer in view of his own finding of facts. In our opinion such an approach is wrong. If certain premises were used for organising or arranging prostitution during a portion of a day, say a few hours, or a number of days in a month it cannot be gainsaid that because for the greater portion of the day or month such premises were used for legitimate business and that during those few hours or number of days such premises were not used wholly or mainly as a "vice-establishment? within that portion of the day or month, that set of premises was used "wholly or mainly' for organising or arranging prostitution.".

13. There is, however, a passage in the same judgment on the following page that might be construed as being inconsistent with the earlier dictum. It reads:-

"In our opinion it is never the intention of our legislature to provide an implied defence for any person who uses a set of premises for the purposes of prostitution by arguing that for the greater portion of every day the same set of premises were used for legitimate business.

We are of the opinion that if for any period of time a set of premises is used for the purposes of prostitution or for arranging prostitution such set of premises at that particular period of time must be regarded as a vice establishment.".

14. Here there is no mention of "wholly or mainly". However I think this passage must be read in the context of that case. The court was concerned with premises that were only open at night. During the hours of operation the escort agency was engaged in only one activity, namely the organising and arranging of prostitution.

15. In the present case there was an innocent letting of rooms contemporaneous with the arranging of prostitution. The premises cannot, therefore, in my judgment, be said to be wholly or mainly used for the latter purpose. Were it otherwise, every hotel and apartment house, whose employees complied with a guest's request for female company, would be at risk of being condemned as a vice establishment.

16. For these reasons the appeal is allowed and the conviction quashed.

(1)    1982 HKLR 1