R. v. LI KWAI HUNG and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 751 OF 1996

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J U D G M E N T

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1. The appellants, respectively D1 and D2 at trial, were each convicted before a magistrate of one charge of managing a vice establishment. Each was sentenced to 3 months imprisonment and ordered to pay $5,000 as costs. They now appeal against their convictions.

2. On the evening of 18th September 1995, PW1 and PW2, both police officers, visited the premises in question, posing as customers. On arrival, PW1 was greeted by D2 and taken to a room. PW2 who arrived about ten minutes later was met by D1 and taken to another room. Before they were taken to their rooms, each officer was asked if they had a familiar girl and whether they wanted the whole set service for $430 which included prummelling and banging. "Banging" was understood to mean sexual intercourse. After the officers had taken a shower and returned to their rooms, a different man brought a girl to PW1 and another man who was neither D1 nor D2 brought another girl to PW2. The men told the girls to go into the rooms and closed the doors before they left. Lewd acts short of sexual intercourse then took place until the officers revealed their identity. A police party arrived and upon enquiries D1 admitted that he was the person in charge of the premises and responsible for greeting customers. D2 admitted that he was the time keeper and responsible for introducing girls and receiving the money. Both were arrested.

3. Neither accused elected to give evidence. Having found the officers to be honest and reliable witnesses, the magistrate made a number of findings. At pp. 49 and 50 of the transcript, he said:

"It was submitted to me that there was insufficient evidence of 'wholly or mainly'. It is trite law that this element of the charge can be established by evidence of only visit. Having considered all the evidence in this case, I considered this was such an instance. Two people entered the premises one shortly after the other, and were separately offered sexual services including sexual intercourse. Arising directly from that, there is a virtually inescapable inference that the premises were being used wholly or mainly in connection with prostitution. This is especially so, when one adds to this the fact that no other services of any kind were offered, and the fact that there were no other persons in the premises. Furthermore, both officers had been asked if they had a familiar girl, and PW1 was additionally asked if he'd been there before."

The magistrate then considered a number of authorities which were also cited before me and continued:

"It was highly apposite, in my view, that nothing other than sexual services were offered at the premises to the two undercover officers.

I considered the element of knowledge the prosecution had to prove as against each accused. It was clear that once the girls had been introduced the room doors were closed. I also considered it important that the accused had explicitly announced to PW1 and PW2 what services they could receive. All these aspects of the evidence, clearly pointed to the accused having full knowledge of what was taking place inside these premises, and having the requisite degree of control over that activity. Another factor I considered was the lay-out of the premises, its location, and the seizure of the various exhibits seized, in particular the two condoms."

4. The facts of this case are not dissimilar from three of the decisions cited before me in argument and these were R. v. Chong Ming-chin, Criminal Appeal No. 294 of 1984; R. v. Tam Wing-kwong and Others, Magistracy Appeal No. 43 of 1988 and R. v. Cheong Luen Shing, Magistracy Appeal No. 823 of 1994. The appeals in all three cases were dismissed. It was submitted by Mr. Marash on behalf of the appellants that the additional evidence of the pornographic video films found in R. v. Cheong Luen Shing was not present in this case. The special feature or additional evidence to be found in this appeal has, perhaps, been either overlooked or ignored. Unlike most of the other cases, the two officers were greeted by two different men, namely the appellants, who introduced the girls to them and the girls were brought to the officers by two completely different men. The availability of a number of people working in the premises suggests that this was a large and well-organized establishment.

5. I would only refer to the concluding paragraphs of the judgment of Fuad, J.A. in R. v. Chong Ming-chin at pp. 3 and 4:

"I, of course, recognise the force of these authorities but it seems to me that it is essential to bear in mind, as Lord Parker indicated in Dudley Holland that it will be a question of fact in each case, when addressing this issue, whether the element of some continuity has been sufficiently established. In my judgment it is dangerous to attempt to lay down a formula that will govern each case from the words used in widely differing cases by individual judges. An event which takes place once, or a number of similar events which take place on a single night may indeed be insufficient to establish that the premises were being 'kept' as a vice establishment, but as common sense would dictate, it cannot be right to say that evidence of the surrounding circumstances in a given case can never lead to a proper inference that the events observed were not merely isolated incidents but indicated that the premises were in fact being kept as a vice establishment with some degree of continuity.

When the evidence is read as a whole, I am left in no doubt that there was ample evidence before the magistrate for him to draw the inference that the appellant was managing premises which were being kept as a vice establishment. Since the appellant chose not to go into the witness box he cannot complain if a proper inference was drawn, and drawn more readily in view of his election. All the evidence was one way and he could easily have said what the premises were in fact being used for if things were not what they seemed."

6. I respectfully agree and adopt every word that was said which are aptly and equally applied to this appeal. The magistrate had before him and considered the authorities and he was aware of the dictum of McMullin V.P. in R. v. Wong Chi Hung [1982] HKLR 361. I am satisfied that on the evidence the magistrate was right to draw the inference that the premises in question were used wholly or mainly in connection with prostitution and that it was kept as a vice establishment.

7. The appeal is dismissed.