HKSAR v. HEUNG WING KEUNG and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 61 OF 1998

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J U D G M E N T

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1. These Appellants appeal against conviction; Appellant 1 (A1) on a charge of Managing a Vice Establishment and Appellant 2 (A2) on a charge of Assisting in the Management of a Vice Establishment.

2. The grounds of appeal were that the Magistrate erred in finding that at the material time the premises were used wholly or mainly for, or in connection with, the organising or arranging of prostitution; in finding that at the material time the premises were being kept as a vice establishment; in finding that at the material time A1 was managing and A2 was assisting in the management of the said premises kept as a vice establishment, and that the convictions were unsafe and unsatisfactory as a result.

3. The magistrate found the premises to be a vice establishment in terms of Section 117(3)(b) Crimes Ordinance, Cap. 200. Section 117(3) states :

"3. Premises, vessel or any place shall not be treated as a vice establishment for the purposes of this Part unless -

(a) the premises, vessel or place are or is used wholly or mainly by 2 or more persons for the purposes of prostitution; or

(b) the premises, vessel or place are or is used wholly or mainly for or in connexion with the organising or arranging of prostitution."

Facts of the Case

4. An undercover police officer went to the premises at about 4.10 p.m., was greeted by A2 and, after discussion, paid for and was promised a girl for sexual services. The meeting with the girl took place about 10 minutes later, in a room furnished with a bed, condoms and a T.V. showing obscene videos. The customary shower took place after the girl arrived and sexual contact was initiated by the prostitute. At that stage the officer revealed his police identity, having earlier sent a coded message to the raiding party by mobile phone. The police party arrived about 10 to 15 minutes after the officer revealed his police identity - around 4.55 p.m.

5. A second undercover officer had followed the first into the premises at about 4.15 p.m. and a similar transaction was arranged with A2 and paid for. This officer waited in another room similarly furnished, but before any girl was brought to him the raiding party arrived, and he was instructed to arrest A2.

6. Because only one prostitute was on the premises at the time of the raid the prosecution relied in the charges on the definition of vice-establishment set out in S.117(3)(b). The learned magistrate found the premises to be a vice establishment within terms of that section. It was argued that the magistrate erred in law in finding that the facts permitted him to treat the premises as a vice establishment under Section 117(3)(b). It was submitted that Section 117(3)(b) was enacted specifically to deal with offences relating to escort agency premises where the sexual services would take place elsewhere than at the place where the arrangements were made.

7. Counsel submitted that the legislative intention in enacting Section 117g was to deal with two distinct situations; the provision of the facility of prostitution on the premises (S. 117(3)(a)) and to deal with the arranging of prostitution, where the prostitution would take place off the premises (S. 117(3)(b)). It was submitted that to interpret Section 117(3)(b) as the learned magistrate did would render Section 117(3)(a) redundant and with it the statutory requirement of two or more persons.

8. Counsel argued at trial, and it was argued again on appeal, that because the 2 limbs of the section were ambiguous in their meaning the court should resort to purposive statutory interpretation to interpret the section correctly. Reliance was placed on Inspector of Taxes v. Hart [1993] 1 All E.R. 42 (HL) for an exposition of this theory and counsel claimed recourse should be had to what was said by the Attorney General at the second reading of the Crimes (Amendment) Bill when this piece of legislation was being considered in 1978.

9. Although I have read the arguments made before the Magistrate and have listened to counsel's arguments on the same lines, I cannot see that it was necessary to result to complicated methods of interpretation to decide this matter.

10. There is no ambiguity or confusion in the words "the premises, vessel or place are or is used wholly or mainly for or in connexion with the organising or arranging of prostitution". It appears that S. 117(3)(b) contemplates a charge being laid in circumstances where there is some problem in dealing with the offence under (a). It may well be that historically Section 117(3)(b) was designed and used to deal with the problem of escort agencies and vice-establishments where arrangements for services are made on one premises and the "acts of lewdness" are committed elsewhere. Nevertheless, there is no basis for arguing, on the clear language of this section, that any sexual services arranged had to take place in premises other than the one in which the arranging was being done, before S. 117(3)(b) can be used. Here from the evidence the premises were being used mainly or wholly for or in connection with the organising or arranging of prostitution. That the prostitution was to take place in a room on the premises does not preclude the prosecution from charging under S. 117(3)(b) when, because of an accident of timing or other circumstances there was only one girl on the premises.

11. The layout of the premises; the enquiries of and answers to A2 about the sexual services; the payments made; the furnishing of the rooms; the provision of pornographic videos and condoms in the room; the large quantity of condoms kept at the desk were all factors the Magistrate could take into account in assessing whether this was a vice-establishment. The 1st Appellant's statement under caution made his own position and the operating procedures very clear. That the acts of lewdness took place on the premises does not detract from the fact that the premises were used wholly or mainly for the organising of prostitution, nor does it preclude the Prosecution from using this section in such circumstances.

12. The Magistrate heard extensive argument on this point. He found there was ample evidence that allowed him to decide that the premises were used wholly or mainly with the organising or arranging of prostitution.

13. The Magistrate was required to consider in the first instance the ordinary meaning of the words of S. 117(3)(b). Only if there was more than one meaning, or there was ambiguity, or the plain meaning led to absurdity was there a requirement to follow other canons of statutory interpretation, such as suggested by defence and appeal counsel.

14. The legislation here was not "ambiguous or obscure" nor did the "literal meaning lead to an absurdity" which is when Pepper (Inspector of Taxes) v. Hart (supra) allows relaxation of the prohibition against referring to parliamentary materials.

15. The only absurdity would arise if the Prosecution, in a situation such as this, was precluded from charging under S. 117(3)(a) because the requirement as to one or more prostitutes was not satisfied and precluded further from charging under S. 117(3)(b) because, despite undoubted arrangements being made to provide sexual services, the sexual activity took place on the premises where the arranging was done.

16. The grounds of appeal have not been substantiated. This appeal is dismissed.