THE QUEEN v. HO CHI FAI AND OTHERS

IN THE HIGH COURT OF HONG GONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 825 OF 1984

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BETWEEN

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JUDGMENT

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1. The 1st Appellant was convicted on a charge of Managing a Vice Establishment and the other Appellants on a charge of Assisting in the Management of a Vice Establishment contrary to section 139(b) of the Crimes Ordinance.

2. The first ground of appeal was that:

"there was no or no sufficient evidence that the premises were used wholly or mainly by two or more women for the purposes of prostitution or were used wholly or mainly for or in connexion with the organizing or arranging of prostitution."

The thrust of Mr. Cheng Huan's submission in support of this ground was that use for the purposes of prostitution could be established only if it were proved that two or more women commonly engaged in acts of lewdness, that it was not sufficient if it were merely proved that each female engaged in acts of lewdness on one occasion. In support of that submission he relied on R. v. De Muncle⁽¹⁾ , R. v. Webb⁽²⁾ , and R. v. Morris-Lowe⁽³⁾.

3. In De Munck it vas held that:

"prostitution is Proved if it be shown that a woman offers her body commonly for lewdness payment in return."

In that case, however, the Appellant had been charged under section 2(2) of the Criminal Law Amendment Act, 1865 with attempting to procure her daughter to become a common prostitute. The definition just quoted was given because there was evidence that the girl was "virgo intacta in the limited sense that she had, never had ordinary sexual intercourse with any man" and it was agrued that the offering by a woman of her body for the gratification of the sexual passions of men, even if it is done as a regular trade, indiscriminately and for pain, is not prostitution unless the men's passions are gratified by the act of sexual connection and not otherwise". Insofar as it was concerned with what conduct constituted prostitution the court, in rejecting that argument, held that prostitution could be proved by proving lewd conduct for gain whether that conduct included sexual connection or not. The adverb "commonly" was added to the definition because prostitution without that element was not proscribed by the statutory provision the court had to consider.

4. In Webb, Lord Parker, L.C. J., delivering the judgment of the court, said:

"The words used (sc. in De Munck), namely, that 'prostitution' means 'the offering by a woman of her body commonly for lewdness for payment'............... means no more than 'offers herself' ............."

5. In Morris-Love the Appellant was charged with procuring a woman to become a common prostitute contrary to section 22(1) of the Sexual Offences Act, 1956. He had placed advertisements in a local newspaper for young women to train as masseuses for what he described as "excellent pay". He gave a telephone number which aspirants for the job should call. He hired a room in an hotel and there carried out interviews of some of the girls who had responded to the advertisements. Each girl was told that she would be expected to perform on male clients what he described as "relief massage" for anyone who might request it. He left no doubt that what was meant by relief massage was masturbation. On each of the occasions represented by the charges he also, in effect, invited the girl concerned to masturbate his there and then in the hotel room. His defence was that the advertisements were a ruse to entice each girls who made her way into the hotel room which he had hired into engaging in some sort of indecent behaviour with him in that room. On appeal the question was whether if the facts were, as the Appellant alleged them to be, he was guilty of the offence of procuring a woman to become a common prostitute.

6. Lord Lane, L.C.J., delivering the judgment of the court said:

7. The decisions relied on by the Appellants do not support the contention that there must be proof of "common acts of lewdness" before "prostitution" can be proved. All were concerned with defining the term in a context in which the only form of proscribed conduct was that indulged in by "common prostitutes". Morris-Love, however, makes it clear that whilst all "common prostitutes" must be "prostitutes", not all "prostitutes" are "common prostitutes". The core of the meaning of "common" in this context is illustrated by the Oxford English Dictionary in the following way:

8. The "common" element was lacking in the women in the Morris-Love case because they were not being procured to offer themselves indiscriminately but privately an exclusively to the Appellant. Thus, it is not the number of occasions on which a prostitute offers herself for lewdness for reward which determines whether or not she is a "common prostitute" but the manner in which she practises her profession: she becomes "common" when "she goes public".

9. Section 139 makes no mention of "common prostitutes" but refers to use by women for the purposes of prostitution. Consequently, it seems to me that the forbidden conduct is the offering for lewdness for gain whether the offering is done indiscriminately by common, selectively by discreet or by both common and discreet prostitutes. If there is any use of the premises by women offering themselves for lewdness for gain there is a use for the purposes of prostitution within the meaning of section 139. The learned magistrate found that the premises had been so used and the evidence of what occurred there on 31 August 1984 fully supported that finding. This ground, therefore, fails.

10. There were six other grounds with which I need not deal because I can dispose of this appeal by assuming that the complaint upon which they were founded is valid. The effect of making that assumption is to exclude the evidence of one witness. The remaining ground, namely, that:

"there was no or no sufficient evidence that the premises were kept as a vice establishment"

will, therefore, he considered with that evidence excluded.

11. The remaining evidence consisted of admissions made by each of the Appellants pursuant to section 65C of the Criminal Procedure Ordinance together with certain exhibits. The admissions were as follows:

12. The admissions continued, that the second girl conducted hereself in a similarly lewd manner and asked if he "was willing to double". He asked for and received his bill at 1942 hours.

13. The exhibits consisted of the two bills and a plan and photographs showing  the layout, and the furniture and fittings installed in premises.

14. Each bill had printed headings and handwritten figures as follows:

15. One bill bore the printed number 61965 and other 61967.

16. It was the Appellants' contention that habitual user of the premises for one or other of the purposes mentioned in section 139 bad not been proved and that, therefore, the prosecution had failed to prove that the premises had been "kept" for a forbidden purpose. In support of this proposition counsel for the Appellants' relied on R. v. Wong Chi Hung⁽⁴⁾, R. v. Kwok Ka Leung⁽⁵⁾ , R. v. Tan Wing Kin⁽⁶⁾ and R. v. Chang Ming Chan⁽⁷⁾.

17. Wong Chi Hung was a decision of the Court of Appeal. In that case, Mcmullin, V.P., with whom the other members of the court agreed on this point, said (at p. 7):

18. Here, it was conclusively proved that "conduct of the forbidden kind was going on" on 31 August 1984. The numbers on the bills considered in conjunction with the conclusive evidence regarding the times of the visits by the two police "customers" suggested that those documents were used in numerical order and that they were not bills prepared on the opening day of the "recreation centre".   The layout of the premises and the furniture and fittings installed therein provided convenient accommodation for the routine practice of the type of prostitution observed on 31 August 1984. The conclusive evidence of the conduct of those who found seating accommodation for the two customers that evening suggested that the principal recreation available could not be enjoyed - at least for males - without the company of a female. The routine query about whether the nearly arrived customer favoured a particular girl suggested that whatever the recreation was it had been available for "a considerable time prior to the intrusion." The conclusive evidence of the conduct of the girls suggested that at least one type of recreation available could only be enjoyed with prostitutes.  The structure of the bill providing for the item "Service Expense" as a variable, the handwritten entry of the number 32 and the price 82.30 alongside that item in respect of two customers who sat with different prostitutes at different tables but who were offered the same "recreation" suggested that "Service expense number 32" was one type of "service" routinely available at a set price at the "centre". All those circumstances were "such as to yield no other conclusion than that conduct of the forbidden kind was not only then going on but that the premises had been so used for a considerable time prior to the police intrusion". Thus; even if the learned magistrate had been restricted to a consideration of the truncated version of the evidence herein set out he must stillhave found that the premises had been kept as a vice establishement.

19. In the result, this ground of appeal fails and with it the whole appeal. The appeal of each Appellant is dismissed.

(1) [1918] 1 K.B. 635

(2) [1964] 1 Q.B. 357

(3) The Times Newspaper, Law Report 31st October 1984

(4) Cr. App. 285/82

(5) Cr. App. 198/83

(6) Cr. App. 329/83

(7) Cr. App. 294/84