HKSAR v. POON SZE KWAN

HCMA 468/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 468 OF 2001

(ON APPEAL FROM ESCC 4355/2000)

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J U D G M E N T

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1. This is an appeal against a sentence of 4 months imprisonment suspended for 2 years and a fine of $40,000.00 imposed on the appellant by Mr Mackintosh at the Eastern Magistrates Court on 2 April 2001 for the offence that while a licensee of premises licensed under the Massage Establishments Ordinance, condition 10 of the licence was contravened in that he failed to ensure that no vice or immoral activities took place on the premises contrary to s.13(2) of the Massage Establishments Ordinance Cap. 266.

2. The appellant was given leave to abandon his appeal against conviction at the commencement of the hearing of the appeal.

3. The appellant pleaded not guilty to the charge and was convicted after trial. The charge arose as a result of a police undercover operation. A police officer went to the premises in question, the Hong Kong Sauna in Jaffe Road, posing as a customer. He was taken to a massage room where there was a masseuse. She had told him that there were 5 so-called "packages" available which she explained to him. They involved different sexual services. The police officer chose one of the "packages". The masseuse then made an internal telephone call from the massage room giving the number of the "package" selected by the officer. He was asked to confirm over the telephone that he wanted that "package" and he was then told the price which he agreed. He was then provided with sexual services by the masseuse. After showering and dressing, he went to the counter where he paid the agreed amount plus a tip and a changing room charge using marked money. He left the premises. The police raided the premises half an hour later.

4. The appellant himself gave evidence. He admitted that there were "packages" on offer but that they did not involve sexual services. He sought to bring himself within the defence provided by s.13(2) of the Massage Establishments Ordinance, Cap. 266, namely,

(1) that he did not know and had no reason to suspect the existence of circumstances giving rise to the contravention of the license, and

(2) that he could not, by the exercise of reasonable supervision and reasonable diligence, have prevented those circumstances arising.

5. The learned Magistrate understandably rejected the appellant's account. He found that the management of the premises was conniving in the provision of the sexual services by the masseuse.

6. There are 5 grounds of appeal in relation to the sentence. They only relate to the fine that was imposed. The first two relate to an allegation that the learned Magistrate ordered the fine to be taken from the appellant's bail money.

"1. By Section 97 of the Magistrates Court Ordinance, Cap. 227 a Magistrate has the power to fine a defendant in addition to imposing any another penalty, but there is no power to order that the fine be paid out of bail money.

2. The learned Magistrate in this case lacked the jurisdiction and was wrong to have ordered the fine of $40,000 to be paid out of the defendant's bail money without first having obtained the consent of the defendant either directly or through his counsel."

7. Mr Dick for the respondent concedes that the magistrate has no power to order a fine to be paid out of bail money without the consent of the defendant. He says that that consent may either come directly from the defendant or through his counsel.

8. Insofar as these two grounds of the appeal are concerned, I find that they are based upon a misapprehension that the learned Magistrate ordered the fine to be paid out of the defendant's bail money. He did not.

9. Having imposed a fine of $40,000.00, he asked defence counsel, Mr. Hotten:

"Is time required to pay that fine?"

It was therefore the question of whether time to pay was required that concerned the learned Magistrate. After posing the question to which I have referred, the exchange went as follows:

"Mr Hotten: Sir, I'm just getting instructions.

Court: Because I notice.....

Mr Hotten: There is 50,000 bail money, as I understand it.

Court: 50,000 bail? Yes, well it can be paid forthwith.

Mr Hotten: According to the sheet that I have there is 50,000 bail money so we have to take it from the bail.

Court: I don't know how $50,000 bail came to be fixed, simply to ensure the attendance of the defendant at court, or for some other reason?

Mr Hotten: I was not involved at that stage, sir. I don't know."

10. Whether or not the learned Magistrate was himself about to raise the existence of the bail money in the context of whether the appellant needed time to pay, it was the appellant's counsel who, in fact, first did so. While the learned Magistrate commented that as a result of the existence of the bail money, the appellant would not need time to pay and the fine could be paid forthwith, it was his own counsel who expressly stated that "we" (i.e. the defence) "have to take it from the bail."

11. The learned Magistrate did not make an order that the fine should be taken from the bail money. Although someone appears to have made a note upon the Form 19 (Minutes/Deposition of Witnesses) that the fine was payable forthwith from bail, Mr Percy has not suggested that it was the Magistrate who made this note.

12. The order formerly drawn up and signed by the Magistrate in accordance with s.28 of the Magistrates Ordinance made no reference to the fine being payable from bail money. The effect of the order made by the learned Magistrate was that the appellant was entitled to reclaim his bail money but would be under an obligation to pay the fine forthwith.

13. I would add that even if the Magistrate had made an order that the fine was payable out of the bail money, he was entitled to rely on the authority of the appellant's own counsel consenting to such an order.

14. The next 2 grounds of appeal are in the alternative to the first 2 grounds.

"3. Alternatively, the Magistrate when determining the appropriate level of fine did not make adequate enquiry into the defendant's ability to pay such a large fine. It was wrong to fine the defendant at the level he did when the evidence suggested the defendant's earnings were modest and that he had already lost his job.

4. Alternatively, the Magistrate was wrong by giving the impression that when assessing the level of fine, that the fine was not a reflection of the defendant's own means but that it was based upon the owners business profits and the establishment's ability to pay."

15. I am satisfied that there is nothing in either of these 2 grounds of appeal.

16. In his Reasons for Sentence, it is apparent that the learned Magistrate adequately assessed the appellant's personal ability to pay the fine he imposed.

17. A magistrate is not bound to accept what he is told by a prisoner's counsel acting on instructions about the prisoner's financial position, particularly if the magistrate has shortly before heard that person give evidence about the offence and rejected the prisoner's account. The magistrate is entitled to apply his own common sense to what he has heard. The learned Magistrate in this case clearly rejected what he had been told by counsel on instructions about the earnings of the massage establishment and the appellant's own alleged modest earnings. In his Reasons for Sentence, he pointed out that the appellant had been fined $15,000.00 three months previously for committing the same offence at the same premises and had not been deterred by such fine. He concluded that "the motivation for such re-offending can only have been the generation of the substantial profits which must have been available in this very well appointed massage establishment."

18. This was an entirely reasonable conclusion to draw in the circumstances. He was referring to the motives of the appellant in re-offending. It is clear that he was not referring to the profits available to the owner of the premises, but the profits available to the appellant. He was equally justified in viewing with some scepticism the appellant's contention that he would necessarily lose his job. He had not done so on the previous occasion when he had been convicted, and as the learned Magistrate pointed out, the appellant had the resources to pay for private representation at his trial.

19. The final ground of appeal was that having regard to the sentence of imprisonment and the circumstances of the case, a fine of $40,000.00 was manifestly excessive.

20. There is nothing in this ground. The learned Magistrate had found that the motive for the appellant re-offending was the substantial profit which must have been available. A financial penalty was therefore appropriate.

21. The financial penalty imposed on the appellant 3 months previously had not deterred him from re-offending. His decision to impose an enhanced fine of $40,000.00 and a suspended sentence of 4 months imprisonment cannot be faulted.

22. I dismiss the appeal against sentence.