THE QUEEN v. CHUI SI CHING

MCA No. 852 OF 1987

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HEADNOTE

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Massage establishment – licensee failing to exercise reasonable supervision and diligence to prevent breach of conditions of licence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 852 OF 1987

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J U D G M E N T

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1. The appellant was convicted on three summonses, all alleging breaches of the conditions of his licence to operate a massage establishment, contrary to section 13(2) of the Massage Establishment Ordinance, Cap. 266.

2. These breaches were:-

(1)   Employing persons other than those approved by the Licensing Authority, namely Mr. Tang Kam Shing (Summons 20016).

(2)   Carrying on massage in seclusion (Summons 20018).

(3)   Erecting blinds at the glass panels adjacent to the room doors (Summons 20020).

3. Section 13(2) provides:-

“Where a condition of the licence is contravened the licensee shall be guilty of an offence unless he satisfies the court that-

(a) he did not know and had no reason to suspect the existence of circumstances giving rise to the contravention; and

(b) he could not by the exercise of reasonable supervision and reasonable diligence have prevented those circumstances arising.”

4. The grounds of appeal in Summonses 20016 and 20020 are that the magistrate erred in finding that the appellant had failed to exercise reasonable supervision and reasonable diligence. In Summons 20018 it is claimed that the magistrate erred in holding that the condition was contravened.

5. Dealing with this summons first, it is common ground that the layout of the premises was approved, as shown in Ex. P2A, prior to the issue of the licence. Counsel for the Crown concedes that the premises were not being used as a brothel, or anything of that nature.

6. Condition 7 of the licence provides:-

“In order that the licensee may adequately supervise the massage establishment, treatment of males by females or vice versa shall only be carried on in those parts of the licensed premises open to general view. No such treatment shall be carried on in seclusion.”

7. The sketch shows that the premises are divided into 42 small cubicles separated by several corridors. There is also an “office room”. All the cubicles contain a couch, stool and cupboard. There is a window in the upper part of each door. There is also a larger window in the wall beside the door. Ventilation is provided by a grille at the bottom of the door.

8. The evidence on which the magistrate relied was that of PC 23651, a member of a team that entered the premises under a statutory general authorisation, who said he had had a shower and was then taken to room 23, where he was massaged by a female hostess. White foam partly covered the window on the door, and on the wall window there was a blind in the closed position. The room was very dark. The police constable could not see what was going on outside. He also said - though he did not say he himself had tried to do so - that people outside could not see in. He was not cross-examined.

9. In his evidence the appellant admitted that there were blinds on the windows. He was not asked about the foam.

10. The police constable said the room was dark; presumably therefore the light above the couch was off. Assuming the lights in the corridor were on, it would be difficult for anyone to see into the cubicle unless he peered through the gaps in the foam. Even then it would not be possible to see much in the dark. In these circumstances the magistrate was clearly right to find that massage in this cubicle was carried on in seclusion.

11. The grounds of appeal in relation to summons 20020 are that the learned magistrate erred in holding that the appellant could have prevented the installation of the blinds by the exercise of reasonable supervision and diligence.

12. In his evidence the appellant said he was aware of the conditions of the licence. He visited the premises almost daily at different times. He had delegated some authority to a day manager and a night manager.

13. The appellant was asked when he learnt that blinds had been put up and he said he did not recall. He had not been told about them by Mr. Tam Chung, the night manager who had erected them, and he had not noticed them during his visits. He had had them removed immediately after the police inspection. He had subsequently discovered that they had been erected because customers objected to being seen naked while changing.

14. The latter, to my mind, is not only improbable, it is irrelevant. Blinds are prohibited. A reasonable excuse for breaching the licence condition can go only to mitigation.

15. The question is whether he could reasonably have prevented their installation. There is no evidence as to when this occurred. If it was done on the day of the police raid, the appellant may not have known about it. In those circumstances he probably could not have prevented it. On the other hand, the installation would have involved significant expenditure. It is unlikely, I think, that his delegation of authority would have extended so far. His opinion and approval, as co-proprietor, would have been sought beforehand.

16. Secondly, it would have been an extraordinary coincidence if the blinds had been erected that very day. If that were indeed the case, evidence would doubtless have been given to that effect. Mr. Kwan Ning-hong - a co-defendant, but not charged with this offence - said he was the Day Manager and was on duty 11 a.m. - 9 p.m. He could not recall due to lapse of time whether there were blinds on the windows on 8th January. Unless they were erected between 9 p.m. - 10.55 p.m. - the time of the raid - this was a lie. If they had been erected that day, he would have remembered. If they had been erected earlier, he could not have forgotten that they were there.

17. The appellant having admitted that he visited the premises almost daily, there was ample evidence that the blinds were installed with the appellant’s knowledge and approval. It was something he could easily have prevented had he wished to do so.

18. The grounds of appeal on summons No. 20016 are the same.

19.The prosecution case was that PC123 collected the identity cards of all the employees on the premises during the raid and they included that of a man who was not on the list of staff approved by the Licensing Authority. That was not disputed by the defence.

20. The employee in question, Mr. Tang Kam-shing, also gave evidence for the prosecution. He said he worked in the cloakroom from 9 p.m. - 6 a.m. for $2,000 per month plus allowances, which was paid twice monthly in cash.

21. Mr. Tang, was interviewed for the job by one of the managers, not the proprietor. During the five months he had been working there, up to 8th January, he had never seen the appellant.

22. The appellant's evidence was that he did not know Mr. Tang. He delegated authority to recruit junior staff. He trusted the managers, although he also inspected the staff cards during his visits. He was asked if he checked that the correct procedure was used when employing staff. His reply was, “I do. Whenever approval is not granted, I ask him not to recruit staff” - a meaningless answer.

23. Mr. Kwan knew Mr. Tang, but he had not recruited him. It was the responsibility of the person who employed him on the night shift to seek approval.

24. Mr. Alderdice, for the appellant, submits that he behaved reasonably. He had appointed two managers to run the place. He had never noticed Mr. Tang and did not know he was an employee.

25. That, however, is not the test. There is no doubt that a breach of the condition occurred. Could the appellant have reasonably prevented it?

26. Counsel for the respondent submits that there is a positive duty of diligence; it is not enough to give instructions to a trusted delegate. I agree. It follows that one must ask whether, if the appellant had checked the staff cards against the list of authorised employees (Ex. P4), he must have realised he was in breach of the condition. Unless Mr. Tang's name was not recorded in the books of the establishment, which was not suggested, the answer must be in the affirmative. It was then up to the appellant, exercising reasonable diligence, to follow it up. He did not do so and is therefore also in breach of Condition 4.

27. This appeal is dismissed.