HKSAR v. LEUNG CHUN KEUNG

HCMA466/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO.466 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of managing a vice establishment, and sentenced to 3 months' imprisonment. He appeals against conviction.

2. This case arose out of a police undercover operation. The evidence for the prosecution was that two undercover police officers went to the steam bath and massage establishment of which the Appellant was in charge. The Appellant asked each of the officers if he had any familiar girls he had played with, and offered him the massage job and "playing the joystick job", i.e. masturbation, for $460. In due course the Appellant brought girls to the officers; they were massaged and then when masturbation commenced, they announced their identities and called the rest of the squad. When the rest of the squad came, they found no other evidence of vice activities in the premises except the presence of 21 condoms in a glass on a shelf in a kitchen. They found 10 customers and 8 girls apart from the undercover officers and their girls but no one gave any indication that he had been offered any sexual services. They found no receipts which might have supported the evidence of massage and masturbation for $460.

3. There is no dispute that the Appellant was in charge of the premises or that the officers were offered masturbation for a fee. What the Appellant argues is that there was insufficient evidence that the premises were wholly or mainly used for the purposes of organising prostitution or that they were "kept" as such.

4. There are four grounds of appeal. The first is that the learned Magistrate erred in law in not considering important evidence from the police officers and their Sergeant. The second is that he failed to consider whether it had been proved that the premises were being "kept" as a vice establishment. The third was that there was insufficient evidence to prove this. The fourth was that the conviction was unsafe and unsatisfactory.

5. In respect of the first ground, the evidence to which the Appellant, through his solicitor Mr Midgley, refers is in effect the negative evidence. It is either what the officers did not see; or what they saw which did not indicate vice; or it is their lack of knowledge of prior use; or it is their conclusions, such as that of PW3 that the premises appeared to have been used mainly for legitimate purposes.

6. The learned Magistrate did not refer exhaustively to this negative evidence. He did not have to. It is clear from his Statement of Findings that he had it in mind. He was not surprised that no vice activities were found to be going on in the other rooms once the police raid started and indeed that is not surprising.

7. The learned Magistrate did not refer specifically to the issues of whether the premises were "wholly or mainly used" for prostitution or "kept" for that purpose. He inferred main user from the fact that the Appellant immediately offered the two officers sexual services and from the presence of condoms in a common part of the premises. He inferred continuous user from the fact that he asked the officers if they had a familiar girl they had played with. He said that -

"... the only irresistible inference of this 'habitual' greeting is that girls had been supplied to customers on previous occasions to play with customers on such thing as 'joystick job'".

8. With respect to the learned Magistrate, I do not see that these findings are supported by the evidence. What the Appellant said to the officers may mean that the premises were run wholly or mainly for prostitution, but in the absence of any other evidence (e.g. obscene videos or the like - cf. R. v. Cheong Luen-shing, M.A. 823 of 1994) it is suspicious rather than conclusive. The presence of condoms again is suspicious but not conclusive. As to continuity of user, it seems to me to go too far to infer this from what the Appellant said. The word "play with" may and indeed probably does refer to masturbation rather than massage; but again this raises a probability rather than an irresistible inference.

9. Overall, it seems to me that while there was ample evidence to raise suspicion that the premises were kept as a vice establishment, there was insufficient evidence on which the learned Magistrate could make the findings which he did.

10. I find that the conviction in this case was unsafe and unsatisfactory. Accordingly the appeal is allowed, the conviction quashed and the sentence set aside. The Appellant is to be released forthwith.