HKSAR v. IP TING TAI ROMEO

HCMA740/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 740 OF 1998

(On appeal from NKC 1080 of 1998)

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J U D G M E N T

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1. On 3 July 1998, J LAM Esquire, magistrate, convicted the appellants, designated D1, D2 and D3, after trial: D1 for managing a vice establishment, and Ds 2 and 3 for assisting in the management of a vice establishment.

2. All three appeal conviction upon the grounds, in each case, that the conviction was against the weight of evidence, certain evidence was improperly admitted and there were certain material irregularities that occurred during the trial.

3. The prosecution case was adduced by various members of a police squad whose task was to investigate whether premises called Dolphin Steam Bath operating in Mong Kok was a vice establishment. Two of the squad posed as customers, arriving separately. They gave evidence as PWs 1 and 2. Both were greeted by D1, who was behind the reception counter. D2 and D3 were standing nearby.

4. D1 greeted PW1, telling him it would be $480 for two jobs. He then told D2 to take him to a room. D2 asked PW1 if there were any girls he was familiar with. He went away and returned with a girl and left them together, asking PW1 to enjoy her. She stripped and, in the nude, began massaging PW1 and began fondling his penis. As she was about to perform oral sex, there was a knock on the door signifying police presence.

5. D1 also greeted PW2 and directed D3 to take him to a room. D3 promised to introduce PW2 to a girl who would provide what he said was "a blow job and a fuck job" for $480. He went out and returned with a girl. He left, telling her to provide good service to PW2. She also stripped and began the same activity on PW2 to which PW1 was subjected. Again, she was interrupted by a knock on the door signifying police presence.

6. The remaining witnesses were those of the police party who, led by a sergeant, arrived at the premises about 30 minutes after PW1 and PW2. D1 was still at the counter. A number of males were sitting around the lobby. The sergeant asked who was in charge. All bar one of the officers said that no one replied. That one officer said D1 admitted that he was in charge. The magistrate made an express finding that the officer was mistaken on this point and that, in fact, there was no admission.

7. After inquiry, the defendants were individually questioned. The prosecution sought to adduce what D1 said, but that was ruled inadmissible by the magistrate because it was invited without caution. D2, after caution, said he was responsible for bringing customers into rooms and collecting money. That response was later post-recorded and signed by D2 as correct. In the face of a challenge on admissibility, the magistrate allowed in that evidence. D3's response, after caution, was exculpatory and may be disregarded.

8. After all the evidence was adduced, the magistrate was satisfied that Dolphin Steam Bath was kept as a vice establishment. D1, as he found, was in operational control and D2 and D3, acting on directions given them by D1, had arranged prostitutes to serve the officers who posed as customers. He found they knew well the nature of the vice business that was being conducted.

9. Before me, each appellant has given further or new grounds of appeal.

10. D1, as I shall continue to call him, said he was at the premises visiting a friend who worked there. He had no involvement in the management. Furthermore, he, during the course of the trial, formed the view that the magistrate had taken a personal view of him to find him guilty. I take that to mean he claims the magistrate did not restrict his conclusions solely to the evidence that was before him.

11. D2's grievance is that the magistrate was prejudiced against him.

12. D3 said he was there as a customer.

13. I have considered, but find no substance in any of these grounds.

14. The magistrate took himself through all the evidence with some care. There was, on any account, ample evidence to support the finding that the premises were kept as a vice establishment. He found the police officers gave an honest and accurate account of what took place. There was one officer whose version contained inconsistencies. He resolved that, finding that it did not taint what otherwise he was told. He was required and made findings of facts on all the essential ingredients of the charges and did so in a careful and reasoned judgment without fault.

15. The resultant convictions of all three appellants were neither unsatisfactory nor unsafe, and the appeals against conviction by all three appellants are dismissed.