HKSAR v. TAM WAI TIN

HCMA306/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 306 OF 1999

(On appeal from NKCC 5539 of 1998)

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J U D G M E N T

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1. The appellant, TAM Wai-tin, was convicted after trial on a charge of managing a vice establishment. He now appeals against the conviction.

2. The allegation against the appellant was simple and straightforward. On the date in question, 7 March 1998, two plain-clothes police officers went to the premises on the 2nd floor, Fuk Cheung Building, 314 Portland Street, an establishment called Kam Yee Finger Cure. The two officers were then met by the appellant. The appellant immediately took the two officers into separate rooms and independently offered to provide, without being asked the service of prostitutes. Before that, he did ask the officers if they had any familiar girls. The appellant then brought in the prostitutes to each of the officers and the prostitutes then engaged lewd acts on the two officers.

3. The establishment was shortly thereafter raided by another party of police officers. The appellant was identified as the one who greeted the two police officers and brought in prostitutes to provide services to them. The appellant was arrested, and upon being cautioned, he replied, "Sir, I know I have committed an offence. Please give me a chance", or words to that effect.

4. It is not disputed that the premises in question was searched, and that over 100 condoms were found inside the various places, including 35 which had been used. There were also many bottles of KY jelly and mouthwash. These support the evidence of the officers - that those prostitutes had brought in bottle of mouthwash in connection with the services that they were about to provide for the officers.

5. Having considered the evidence, the learned magistrate accepted the evidence of the prosecution, in particularly those of the two undercover police officers. This is perhaps not too surprising when the appellant chose not to present any evidence to contradict the evidence of the prosecution.

6. Of course, in this appeal, no point was taken on the issues on the finding of the facts by the learned magistrate. Instead, Mr Midgley, on behalf of the appellant, only argued that there was insufficient evidence to show a "habitual", "continuing" or "persistent" use of the premises for the purpose of organising or arranging of prostitution, and hence, there was insufficient evidence of "keeping" within the meaning of the law.

7. The suggestion is that the circumstantial evidence as presented by the prosecution and found to be proved by the learned magistrate could not lead to such an irresistible inference to satisfy the very high standard of proof in criminal proceedings. It is also suggested that the learned magistrate had not taken into consideration the evidence of the two plain-clothes officers - those evidence, it was submitted, appeared to be favourable to the appellant.

8. In the course of cross-examination, the two plain-clothes officers were questioned in details about their knowledge of the nature of business and the like of the premises in question. It appeared these two officers were unable to say much about the extent of the business activities in the said premises and the nature of the appellant's duty, other than those involving the two of them. It was not perhaps surprising at all that there was no direct evidence on those matters, as it was never the prosecution's case that the premises in question had been kept under surveillance for any period of time, or that they had been entered on previous occasions, or indeed on any other occasion.

9. Counsel for both the prosecution and the defence have referred this court to a number of authorities. It may not be necessary to refer to them individually. But those authorities clearly establish that direct evidence is not essential to find a conviction of managing a vice establishment as such. And those authorities also clearly establish - and to that extent Mr Midgley concedes - that evidence of one visit could be sufficient to show that the premises were kept as a vice establishment if there were sufficient circumstantial evidence to justify such an inference. I think factual aspects of previous authorities may not be too helpful, as each case must be looked at to determine if the circumstantial evidence in each case justified the inference in that regard.

10. Insofar as this matter is concerned, I think it is also fair for this court to point out that judges or magistrates do not live in an ivory tower. In this particular case, the learned magistrate took into consideration the way in which the appellant dealt with the two undercover police officers; the conversation that he had with each of these two officers pertaining to the question of whether the officers had familiar girls, the speed in which the girls were brought to the room to provide services for the officers. The learned magistrate also took into consideration the presence of both used and unused condoms in the premises, including their quantity.

11. The learned magistrate concluded, in the absence of evidence from the appellant, that the irresistible inference was that the premises were being kept as a vice establishment.

12. Mr Midgley relied heavily on the decision of Muttrie DJ in the case of Leung Chun-leung, MA No. 466/1998, in which the learned Deputy Judge concluded that the circumstantial evidence in that particular case was not sufficient for him to draw the inference of guilt, so to speak.

13. As I have indicated earlier, each case must be looked at individually to decide if the circumstantial evidence in that particular case justified the inference that we have been talking about. And to that extent, a decision in another case on factual matters may not be that relevant. The learned Deputy Judge referred to the presence of condoms which he thought was not conclusive. He also concluded that the other circumstantial evidence in that particular case was insufficient to enable him to say that the charge against the appellant in that case had been established to the standard required in a criminal case.

14. But if Muttrie DJ's decision is that the presence of condoms or KY jelly or mouthwashes and the like, and the way in which a defendant dealt with the undercover agents, could never have led to the conclusion that the premises had been habitually and continuously used as a vice establishment, I do not agree with his conclusion.

15. The learned magistrate, having taken into consideration the entire factual background of this case, came to the irresistible conclusion as he did. The learned magistrate had clearly applied the correct law; and in my view, he was entitled to come to the conclusion as he did, to draw the inference because of the factual matters in this case that the premises had been habitually and continuously used as a vice establishment. I am also satisfied that the evidence before him was adequate to enable him to conclude as he did.

16. There is, in my view, no valid base upon which this court can interfere with the decision of the learned magistrate. In the circumstances, the appeal against conviction has to be dismissed and I so order.