ATTORNEY GENERAL v. KWUN LUNG CHEONG

Headnote

Crimes Ordinance - S. 145 - Meaning of "tenant" - Tenant not in occupation not liable - SIVIOUR v. NAPOLITANO, [1931] 1KB 636 followed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 283 of 1985

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JUDGMENT

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1. Section 145 of the Crimes Ordinance ("Ordinance") provides as follows:-

"A person who -

(a)     being the tenant or occupier, or person in charge, of any premises permits or Buffers the whole or part of the premises to be used for the purposes of habitual prostitution ........ shall be guilty of an offence .........."

2. The Respondent pleaded not guilty in the Magistrates Court to a charge that he committed an offence against that provision in that -

"being the tenant [of the premises he] did permit [them] to be used for the purpose of habitual prostitution"

3. The evidence adduced by the Prosecution established that the Respondent shortly after becoming the tenant sub-let the whole of the premises to another. The sub-tenant used the premises for the purpose of habitual prostitution. The Respondent was not in occupation of the premises at any time when they were so used.

4. The learned magistrate relied on Siviour v. Napolitano⁽¹⁾ to hold that "section 145(a) ...does not apply to the case of a tenant not in occupation of the premises". He ruled that there was no case to answer. The Appellant now appeals against that decision by way of Case Stated.

5. The Appellant contends that Siviour v. Napolitano provides no guidance in interpreting S.145 of the Ordinance. That decision, so the argument runs, looked at a provision of the Criminal Law Amendment Act, 1885 as amended by the Criminal Law Amendment Act, 1912 ("1885 Act") whereas S.145 of the Ordinance was inspired by, but yet is materially different from, the Sexual Offences Act, 1956 ("1956 Act").

6. The easiest way to demonstrate the extent to which the three legislative enactments correspond is to paraphrase the provisions and tabulate them as follows:-

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7. The provisions which came under scrutiny in Siviour v. Napolitano were subsections 2 and 3 of S.13 of the 1885 Act. The table shows that, if S.36 of the 1956 Act was, according to the marginal note, the model for S.145 of the Ordinance, the provision in its final form bears as close a resemblance to the material part of S.13(2) of the 1885 Act as it does to the model. The only differences between the relevant part of S.13(2) of the 1885 Act and the material part of S.145 of the Ordinance are -

(i)	the addition in the Act of "Lessee" and in the Ordinance of "Occupier" to the category of persons liable; and
(ii)	the omission of "knowingly" from the description of the conduct proscribed by the Ordinance.

8. The decision in Siviour v. Napolitano is consistent with acceptance of a suggestion made during argument in that case that "lessee" was "probably inserted ex abundanti cautela to include a tenant for a longer term than three years". The omission of "lessee" from S.145 is, therefore, of no significance.

9. The absence of "knowingly" from S.145 was one prop used by the Appellant to support the contention that the section embraced tenants not in occupation. The submission was made, however, in the context of a comparison between S.36 of the 1956 Act and S.145 of the Ordinance. That exercise detects the omission of "knowingly" but misses an atavistic feature in the genealogy of S.145, namely, a reproduction of the feature "person in charge" which originally appeared in the grandfather (S.13(2) of the 1885 Act) but was missing from the father (S.36 of the 1956 Act). Having compared the son only with the father the Appellant's argament never saw the striking similarity between the grandfather and the grandson and so it did not recognise that the ejusdem generis disease which afflicted the former might be equally virulent in the latter. The Appellant's submissions regarding the absence of "knowingly" do not assist, therefore, in determining whether that omission creates a significant difference between S.13(2) and S.145.

10. There is authority for saying that "knowingly permitting and permitting simpliciter are the same" ⁽²⁾ Certainly, proof of the commission of an offence under S.145 of the Ordinance involves proof that the person charged knew that the premises were being used for the forbidden Purpose. ⁽³⁾ Consequently, I think that the absence of "knowingly" is of no significance in comparing S.145 with S.13(2) of the 1885 Act. Had the Divisional Court in Siviour v. Napolitano had before it S.13(2) garbed in the verbiage of S.145 (Particularly with the addition of "Occupier") it would have arrived at the same conclusion, namely, that the persons liable must be exercising some form of immediate control over the premises. It therefore follows that I think that the learned magistrate was right in using that decision as a guide to the interpretation of S.145.

11. The question posed by the learned magistrate in the Case Stated asks whether he was "correct in law in ruling that section 145(a) ... does not apply to the case of a tenant. not in occupation of the premises" The answer must be, "Yes, he was correct in law".

12. Appeal dismissed.

(1) [1931] 1 KB 636

(2) Glanville Williams, CRIMINAL LAW, The General Part, 2nd edition, para. 60, note 4 citing Devlin J., in Roper v. Taylor's etc., Ltd. [1951] 2 T.L.R. 284.

(3) R. v. WONG SZE YUN, (FC), (1963) HKLR 68, 72-3.