HKSAR v. CHUN KA YEE

[English Translation – 英譯本]

HCMA 271/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 271 OF 2006

(ON APPEAL FROM KCCC NO. 7376 OF 2005)

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

BETWEEN

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

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

JUDGMENT

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

1. The Appellant was convicted after trial on 4 counts of managing a vice establishment. The dates on which the 4 offences were committed are as follows:

(1)     Charge (1) – 8 December 2004;

(2)     Charge (2) – 17 December 2004;

(3)     Charge (3) – 7 January 2005;

(4)     Charge (4) – 13 June 2005.

The offences were all committed at a place called “Hawaii Sauna”. The Appellant was sentenced to 12 months’ imprisonment for each offence, with all sentences to run concurrently. He appealed against conviction and sentence but, at the hearing today, indicated through his Counsel that he had abandoned the appeal against sentence. The appeal against sentence was withdrawn accordingly.

Prosecution case

2. At all material times, the abovementioned place operated under a business registration certificate issued by the relevant government department. The place consisted of 12 rooms equipped with massage facilities.

3. At trial, the prosecution called 5 witnesses, all of whom were police officers.

4. On the dates particularized in Charges (1), (3) and (4), PW1 went to the abovenamed sauna to take part in an undercover operation by the police. On each occasion, PW1 was received by the Appellant, who arranged for prostitutes to provide sexual services to PW1 and explained the relevant charges. On the first two occasions, the Appellant also asked PW1 whether he was satisfied with the services provided by the prostitute.

5. On the date particularized in Charge (2), PW2 went to Hawaii Sauna to take part in an undercover operation by the police. After he took a shower, he was received by the Appellant, who explained the relevant charges and then led PW2 to a room. Thereafter, the Appellant brought in a prostitute and then left the room, closing its door. Afterwards, when PW2 paid the bill, the Appellant asked him whether he was satisfied with the services. She also gave him her name card and told him she would introduce a younger prostitute to him next time.

6. In the final operation, PW1 and PW3 went to the abovenamed premises together as undercover agents and in tandem with an arrest. The Appellant arranged prostitutes for the two witnesses and led them to a room where the two undercover police officers selected two out of 7 females. The Appellant then led one of the females and PW3 to another room. Subsequently, the two rooms lit up and the prostitutes left the rooms, taking their personal belongings and indicating that the police were inspecting the licence.

7. Later on, at a rest room, PW1 and PW3 separately identified the Appellant as the manager who had received them at the abovenamed premises.

8. At the material times and in the abovementioned rooms, PW1 to PW3 were provided with sexual services by various prostitutes.

9. PW5 was responsible for collecting exhibits at the scene on the night of the arrest. Among the exhibits collected was a pile of staff attendance sheets (Exhibit P4), one of which stated the name of Chun Ka Yee as the manager; as well as several packets of condoms which were found from the storage cabinet in the staff room.

Defence case

10. The Appellant neither gave evidence nor called any witness on his behalf.

Grounds of appeal

11. The Appellant’s grounds of appeal are summarized as follows: the magistrate failed to consider the evidence which might show that lawful acts of business and consumer spending were taking place at the premises in question. The magistrate ruled that Exhibit P43 was sheer hearsay evidence and on this basis wrongly concluded that the sauna in question was a “vice establishment”. In doing so, the magistrate failed to follow the legal principles laid down in the cases of Wong Ming Chu and Yeung Mei Ling. While the magistrate indicated that the defence was under no duty to adduce evidence of the other modes of operation at the sauna, he ruled, in the absence of evidence in this regard, that the only reasonable inference was that the premises in question were wholly or mainly used as a vice establishment. This, in the Appellant’s submission, was paying lip service to the above principle and tantamount to reversing the burden of proof.

Respondent’s reply

12. In relation to the element of “wholly or mainly”, Mr Cheung, Counsel for the Respondent, submitted that the magistrate correctly took into account the observation of Deputy Judge Leong in the case of Man Man Kuen (HCMA 1049/2005) that the fact that a place named as a massage establishment was offering both massage services and sexual services did not mean that the place was not wholly or mainly used as a vice establishment. Counsel for the Respondent also submitted that, viewing as a whole the experiences of the undercover police officers and the treatment they received at the premises on each of the occasions, and in the absence of evidence on the spending pattern of other customers, the magistrate was entitled to make the only reasonable inference that the sauna was “wholly or mainly” used as a vice establishment even though there might be other customers at that place.

Judgment

13. In determining whether the Appellant “managed” or “kept” the premises in question as a “vice establishment”, the court has to consider, firstly, whether the premises were a “vice establishment”, and if so, the court should go on to consider whether the premises were “kept” as a “vice establishment” and then whether the Appellant “managed” the premises. The present appeal essentially turns on whether the premises in question were a “vice establishment”.

14. Section 117(3) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, defines “vice establishment” as follows:

(a)     the premises or place are or is used wholly or mainly by 2 or more persons for the purposes of prostitution;

(b)     the premises or place are or is used wholly or mainly for or in connection with the organizing or arranging of prostitution.

15. In R. v. Cheng Sung Hin, HCMA 498/1995, which involved a guesthouse in which prostitution had taken place in some of the rooms but in which guests not involved in prostitution also stayed, Bewley J said:

Where there was innocent letting of rooms contemporaneous with the arranging of prostitution, the premises were not wholly or mainly used for the arranging of prostitution within s. 117(3)(b) of the Crimes Ordinance.

16. In R. v. Li Kin Wai & Another, HCMA 102/1985, de Basto J said:

The Magistrate was entitled to infer from the layout of the agreed plan, the darkness of the booth area, the position, size and design of the booths, the use of torches to guide customers to them, and the behaviour of the two women towards the two police officers who were posing as customers, that the premises were used for the purpose of prostitution; the words ‘wholly or mainly’ were intended to describe the use of the premises rather than the frequency of use.

17. Furthermore, in Tang Ping Wing, CACC 411/1981, the Court of Appeal pointed out that, where there was evidence that premises were used for immoral purposes during a particular period of time of the day, such evidence was sufficient to prove that those premises were wholly or mainly used for the purposes in question:

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 the arranging of prostitution such set of premises at that particular period of time must be regarded as a vice establishment.

18. Counsel for the Appellant contended that there was evidence in the present case — in particular, 27 customer service records dated 13 June 2005 (Exhibit P43), which had been adduced pursuant to section 65C of the Criminal Procedure Ordinance — to show that the layout of the subject premises, the facilities available there and the services being offered there were in accord with a sauna which offered lawful services. Accordingly, even though prostitution had taken place in one or two of the rooms at the premises, it could not be said that the whole premises were wholly or mainly used for prostitution.

19. As detailed in paragraph 57 of the Statement of Findings, the magistrate did consider whether other immoral activities would have taken place at the subject premises. He took into account the fact that food and massage services were on offer at the premises, and he also had in mind the fact that none of the prosecution witnesses was able to give evidence on what happened in the other rooms at the premises. He was of the view that whether the premises were a vice establishment depended on their “mode of operation”.

20. The magistrate stated that, according to the evidence of the undercover police officers, on each occasion in question, soon after they entered the sauna, the Appellant took the initiative to recommend sexual services to them, and the masseuses also took the initiative to offer to have sexual activities with them or suggest having such activities with them. Furthermore, each time after the police officers used the services, the Appellant was concerned about their feedback on the level of satisfaction, in the hope that they would visit the sauna again. All these, in the magistrate’s view, went to show that the modus operandi of the sauna was mainly to arrange immoral services and provide a place for prostitution.

21. Counsel for the Appellant submitted that, in concluding that the only reasonable inference was that the subject premises were a “vice establishment”, the magistrate merely relied on the experiences of the undercover police officers on four occasions and overlooked the nature and contents of Exhibit P43. This, the Appellant submitted, was to take a part as the whole and was also contrary to the judgments of and legal principles in the cases of Yeung Mei Ling (HCMA 1024/2005) and Wong Ming Chu (HCMA 1127/2004). Had the legal principle in Yeung Mei Ling been followed, the 27 customer spending receipts that comprised Exhibit P43 would have served to show that the premises also offered lawful acts and services and hence the provision of immoral services was not the sole or main mode of operation of the premises.

22. In Yeung Mei Ling, one of the reasons for allowing the defendant’s appeal was that there were other customers at the premises in question, namely a bar at a nightclub. The evidence showed that, each time the prosecution witness visited the bar, the defendant recommended sexual services to him with great enthusiasm. The magistrate took the view that, although there was no evidence on the spending pattern of the other customers, such pattern was simply irrelevant to the issue of the case. On appeal, this Court raised doubts about the following:

I respectfully agree with Mr Yuen’s submission that, where certain facts are capable of giving rise to both an inference favourable to the defendant and an inference adverse to him, then the latter is not the only reasonable inference that can be drawn.

23. The present case is different from Yeung Mei Ling. First, the premises in the present case were a sauna, whereas Yeung Mei Ling involved a bar at a nightclub. Second, in the present case, apart from the evidence of the undercover police officers that the Appellant recommended sexual services to them, there was no other evidence to prove the existence of any other spending pattern at the premises when the undercover police officers visited the premises. It was for this reason that the magistrate said: “there was no other substantive evidence to support the existence of other modes of spending at the premises such as pure massage or food and beverage”. On the other hand, there was substantive evidence in Yeung Mei Ling that there were other customers at the bar at the material times.

24. As regards the customer service records (Exhibit P43), the magistrate had this to say:

For example, Exhibit P43; the defence has placed particular emphasis on these documents and contended that, as they are receipts of customer spendings on the day in question in which various sums of money are recorded (there were other figures besides 898 and 498), they constitute evidence of other forms of spending, from which other modes of operation of the sauna can be inferred. I do not agree with this contention. First, there is no evidence whatsoever to assist the court in construing the nature and contents of these documents and in understanding how the figures contained therein are calculated and what they mean. Put simply, these documents are nothing more than hearsay evidence which does not enable the court to infer any mode of operation; and on the basis of circumstantial evidence, all that the court can infer is that the sauna was open on the day in question, and no modus operandi can be inferred. Similarly, having considered all the available evidence, including the layout of and facilities at the sauna, I do not see what other modes of operation can be inferred. The only evidence that goes to indicate the modus operandi of the sauna is the evidence of the undercover police officers.

25. Counsel for the Appellant pointed out that, of the 27 customer service records that comprised Exhibit P43, only two showed a figure of $498 and seven a figure of $898 and the remaining 18 records showed neither of these two figures. Nevertheless, as can be seen from the evidence of the police officers, both $898 and $498 were related to sexual services: the former was for a “whole set” and the latter for “masturbation” only. There was no evidence to indicate what services the other figures were for.

26. In R. v. Chong Kin Cheong, CACC 196/1995, the Court of Appeal said:

As was his right, the applicant chose not to give evidence. This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge’s task when considering the facts put before him to imagine possible defences of which there is no evidence. By the same token it is not his task – nor that of a jury – to speculate upon the absence of possible defence. His duty was to try the case just on the evidence before him.

In other words, although the magistrate has to consider whether an inference made from the evidence before him is the only reasonable inference, he is under no duty to imagine possible defences for the defendant.

27. The facts of the present case were not on all fours with those of Yeung Mei Ling and Wong Ming Chu. As I pointed out above, Yeung Mei Ling involved a bar at a nightclub and at the material times there were indeed other customers at the bar; Wong Ming Chu involved a karaoke-nightclub which consisted of individual karaoke rooms, a bar and a dance floor, and at the material times there were other customers in the main hall of the nightclub using the karaoke facilities and facilities in the hall. Furthermore, in those two cases, the alleged immoral activities were not carried out in the subject premises. The involvement of the appellants was confined to arranging sexual services, and it was the prostitutes who led the undercover police officers to other places to carry out immoral transactions. After the transactions, the appellants neither contacted the undercover officers again nor, as the Appellant in the present case did, showed concern by asking questions in stark terms such as “are the girls’ skills OK?” and “are you exhausted to death?”.

28. On the other hand, the facts of the present case were similar to those of Man Man Kuen (HCMA 1049/2005). That case involved a “Finnish sauna” which comprised two floors of a building, one of which was a proper massage establishment. On appeal, Deputy Judge Leong said:

The magistrate also thoroughly considered whether the ‘Finnish sauna’ premises were wholly or mainly used as a vice establishment. Although two of the three police officers had received massage services at the premises, this does not mean that the premises were wholly used for providing massage services, the reason being that sexual services were also being offered at the premises. That the premises offered both massage services and sexual services does not mean that the premises were not wholly or mainly used for providing sexual services.

29. In Wong Ming Chu and Yeung Mei Ling, the main reason for allowing the appeal was that the magistrate had failed to consider substantive evidence that at the material times there were also other customers using proper facilities at the subject premises. Exhibit P43 in the present case did not fall under this type of substantive evidence because, apart from “masturbation” and “whole set”, it was not known what type(s) of spending pattern the other figures related to. The appellate judgment in Man Man Kuen made it clear that the facilities available at the premises were not conclusive evidence on the true nature of operation of the premises. No reversal of the burden of proof was called into play. It is widely known that there are many vice establishments that disguise themselves as proper establishments. Everything has to depend on the circumstances of the particular case. In Man Man Kuen, Deputy Judge Leong pointed out that, on the evidence in that case, the magistrate was entitled to conclude that the subject premises were wholly or mainly used as a vice establishment. Therefore, a magistrate is perfectly entitled to consider the evidence as a whole and should not jump to the conclusion that the subject premises were not wholly or mainly used as a vice establishment merely on the ground that other spending patterns might exist at the premises. Furthermore, Wong Ming Chu and Yeung Mei Ling are not intended to require a quantification of the ratio between the proper spending pattern and sexual services at the premises.

30. In fact, in Wong Ming Chu, Pang J also said:

It would be impractical and indeed impossible for the court to devise a precise mathematical formula to determine what constitutes wholly or mainly in the definition. One must look at the evidence in each case in order to resolve this issue.

31. The ground of appeal cannot be sustained, and the appeal is dismissed accordingly. The Appellant’s conviction is affirmed and he is to receive immediate imprisonment.