HKSAR v. CHAN CHO YIM & ANOTHER

HCMA 476/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 476 OF 2003

(ON APPEAL FROM ESCC 3605 OF 2002)

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J U D G M E N T

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1. There were originally two appellants in this case but on the day of the hearing, the 2nd Appellant did not appear. So I will treat her appeal as having been abandoned and I dismiss her appeal accordingly.

2. 1st Appellant, who will hereinafter be known as "the Appellant", was charged with one charge of "Breach of Licence Condition", contrary to section 46(1) of the Dutiable Commodities Ordinance, Cap. 109. The Appellant was convicted after trial and he now appeals against that conviction.

3. The particulars of the charge was amended on the first day of trial and it reads:

"Chan Cho-yim, you are charged that on the 13th day of September, 2002 inside G/Floor, The Panda Bar, 123 Lockhart Road, Wanchai, in Hong Kong, being the licensee of a liquor licence in respect of the premises, contravened a condition lawfully imposed under the Dutiable Commodities Ordinance, namely, condition 7 of the licensing conditions, by permitting the premises or part thereof to be used for an immoral purpose, namely sexual activities offered to PC 33260 Leung Chun-kit by your staff."

Facts

4. It is not disputed that the Appellant was a licensee of the subject bar since November 1999 and that PC 33260 (PW1) had entered into the said bar posing as a customer. What was in dispute was what happened to him inside the bar, and whether the Appellant knew what was going on and permitted the alleged activities by not taking all reasonable steps to prevent the alleged immoral activities from taking place.

5. The Prosecution relies on the evidence of PW1 to find the conviction against the Appellant and thus the evidence of PW1 had to be looked at closely.

6. On the day in question, PW1 posing as a customer, arrived at the "Panda Bar" at about 10:20 pm by himself. He pretended to be from Mainland China and spoke in Mandarin. He was greeted by a woman subsequently identified as the 2nd Defendant (D2) who asked if he wanted any girls to sit with him as they had Thai girls available. At the bar, he was approached and asked by another woman whether he wanted a drink. He ordered a whisky and she walked away. The 3rd Defendant (D3) then approached him and told him that if he treated her to a drink, she would massage him. She then grabbed hold of his left arm with both her hands. PW1 then replied in Mandarin that that was not necessary. Then D3 pulled up the vest that she was wearing with her hand and pulled down her bra, exposing her right breast. She held her breast with both hands and rubbed her breast against his left upper arm and asked him if she should do it for him in that way. At that time, another girl arrived with the drink that PW1 had ordered and also two other glasses, one containing a glass of transparent liquid which D3 drank down in a gulp and the third was a plastic glass in which there was a piece of paper with the words "WSK77". Then, D3 thanked PW1 for the drink and kissed and licked the left side of his face and his ear, and according to PW1, she also touched his inner thigh and private parts. Then, another drink was brought over and PW1 then protested and said he had not ordered these extra drinks. D3 then drank the drink and continued to kiss and touch PW1 in an intimate manner and took his hand and inserted it inside her underpants and pressed his hand against her buttocks. Finally, some five drinks were consumed by D3. D2 then approached PW1 and asked if he wanted to take the lady out. There is some contention as to what was actually said, and I will refer to it later on in my judgment. D3 also said to him that she would make love with him and make him feel comfortable. When PW1 asked for the bill, D2 went to the cashier's desk and spoke to the Appellant. D2 then returned to PW1 and told PW1 that he had to pay $3,000. When PW1 complained that it was very expensive, she told him that he was being charged $1,000 for the drinks and $2,000 for the "flesh fee". PW1 understood that the "flesh fee" meant fee for sexual intercourse. D2 had told him that the $2,000 was for the girl who will have sexual intercourse with him. PW1 paid the bill with the marked money and D2 then took the money and walked back to the counter and spoke to the Appellant, the Appellant then put the money into a drawer. PW1 said that whilst D3 had done all that he had described to him, the Appellant had been behind the bar counter all along and was about 10 to 15 feet away from them. In total, PW1 was inside the bar for about 40 minutes. Then PW1 left the bar together with D3.

7. On the second day of the hearing, PW1 complained that he was feeling unwell and had also been unwell on the first day of the trial and so the matter was adjourned for 10 days. At the resumed hearing, PW1 then disclosed that he had, prior to coming to court that day, read his statement "seriously". He knew that he should not have done so without the leave of the court and he apologized for not obtaining leave. The learned Magistrate found that there was nothing sinister in his reading the Witness Statement.

8. The learned Magistrate did, in her Statement of Findings, point out that there was a discrepancy as to how long D3 had pulled up her vest exposing her breast. She stated that in the Witness Statement of PW1, he said that D3 had put her breast away when the drinks were served but in court, PW1 said the breast was still exposed when the drinks were served. As for the other discrepancies, she was of the view that they were minor and did not affect the credibility of PW1 and she found as a fact that the solicitations by the 2nd and 3rd Defendants for the 3rd Defendant's to have sexual intercourse with PW1 was immoral, and that the Appellant had failed to take any steps to prevent the breach of the licence condition thereby permitting immoral activities to take place.

Grounds of Appeal

9. Counsel for the Appellant, Mr Grounds submitted a total of 9 grounds of appeal but he opened the submissions with Ground 7. That ground states:

"7.

The learned Magistrate failed (in addition to those matters set out above) to consider in a proper manner or at all the value or weight of PW1's evidence or his reliability in the face of PW1's admission (on 10.2.2003) that he was "not sure" that his evidence given previously (on 29.1.2003) was "full and accurate" (Transcript 152B-D). The evidence given on 29.1.2003 was obviously vital comprising as it did of PW1's evidence-in-chief and cross-examination by the 1st Appellant and clearly the Learned Magistrate relied heavily and acted upon the said evidence, particularly the evidence-in-chief (Transcript 88D-150G; see also Statement of Findings at Transcript 26-29 at paragraphs 4-14)."

10. It is a fact that on the second day of trial, PW1 had complained that he had been feeling unwell both on that day and on the first day of the trial and therefore the hearing was adjourned to 20 February 2003.

11. At page 152 of the Transcript, at C, he was asked this:

"Q.	Yes. And this is why on 29 January this year, when you gave the court your testimony about what D3 have done to you, you told the court fully and accurately.
A.	Well, I'm not sure about this.
Q.	What do you mean by that?
A.	Because, well, my mental condition was not so good on that day."

12. Mr Grounds pointed out the Prosecution did not re-examine on this, so the evidence that the learned Magistrate had in front of her was that, PW1 had said that he was not sure about the evidence that he had given previously on 29 January 2003 as being full and accurate. The evidence given on 29 January 2003 was PW1's evidence-in-chief and cross-examination and Mr Grounds complained that the learned Magistrate, although she relied heavily and acted upon that evidence, had failed to resolve the weight that she should give to the evidence of PW1 given on 29 January 2003 when he had said that he was not sure that the evidence was full and accurate.

13. What the learned Magistrate said in her Statement of Findings can be found in paragraph 14:

"When the hearing resumed on 10/2/2003, Mr. Fu began his cross-examination. PW1 complained of being unwell that day, as well as on the previous occasion when he had testified because he had been working on the night shift and had not rested before coming to Court to testify, and felt there may have been some inconsistencies in his evidence. As he was feeling unwell, the matter was adjourned until 20th February, 2003."

So it is clear from the learned Magistrate's Statement of Findings that she considered that the words of PW1 meant that he felt that there may have been inconsistencies in his evidence as he was feeling unwell and not that he was not sure that his evidence was full and accurate.

14. Now I will turn to the discrepancies that Mr Grounds submits were relevant and had not been fully or satisfactorily resolved by the learned Magistrate in her Statement of Findings. I now turn to Ground 2 of the Grounds of Appeal. Firstly, Mr Grounds complains that the discrepancy as to when D3 put away her breast was not a minor one as it would have affected whether the Appellant would have been able to see this going on at any time, either when he was behind the counter, or walking around.

15. In examination-in-chief, PW1 had said that D3 had her breast out for a considerable length of time before the first drink was served until (it seems) the arrival of D2. It is clear from counsel's cross-examination that PW1 said that he recollected that the breast was still exposed at the time of the service of the third drink and he agreed that he had said in his Witness Statement that the breast was put away after the first round of drink had been served (see Transcript 133D-134H).

16. The other discrepancy that counsel complains of is what D3 actually said to PW1 whether it was: "Fannie Ma negotiates with customers for girls about fees" or "Fannie Ma helps the girls of our premises to arrange girls to go out to receive customers to make love".

17. A further discrepancy which caused counsel to complain is the description of PW1 as to how he was initially touched by D3. The learned Magistrate found as a fact from PW1's evidence that after D3 thanked him for the drinks and kissed him on the left side of his face and ear, she had used her hand to touch his inner thigh and private parts. But in PW1's witness Statement, he never mentioned that D3 had touched his private parts, but rather he said that D3 had taken hold of his left hand and put his hand in her underwear, causing PW1's hand to touch her buttocks.

18. Two other discrepancies complained of by Mr Grounds as to whether drinks were given to D3 against PW1's will and whether acts of indecency involving other girls with other customers were going on at the same time.

19. Counsel for the Appellant complained in Ground 1 that the learned Magistrate had failed to follow or understand the Defence submissions on the law in this case. The learned Magistrate had concluded that counsel submitted, since there were no breaches in the past, then the Appellant did not take steps to prevent breaches of the licensing conditions. But, counsel in fact submitted that if there had been previous breaches, then the Appellant would have had a higher awareness and therefore a heavier burden to take meaningful steps to prevent breaches and not that because there were no previous breaches, he did not need to take reasonable steps to ensure the compliance of the licensing conditions.

20. Counsel also pointed out that as far as the evidence of PW1 was concerned, he says that there was music playing in the bar at the time and that it would be difficult for someone to hear his conversation with D3 if they were more than a few feet away. PW1's evidence was that the Defendant was about 10 to 15 feet away from him and the 1st Defendant was sitting at the cashier's desk with his back to PW1. PW1 also agreed that his concentration was not on the Appellant but he did see the Appellant walking around and notice that the Appellant did look at PW1 on one occasion.

21. Mr Grounds also referred to the photographs adduced in evidence at the trial and it is clear that the desk of the cashier was at a lower level towards the back of the bar, and if the cashier was sitting at the cashier's desk, he would be facing a wall with his back to where PW1 was sitting. The conversations between PW1 and D2 and D3 whilst it was evidence against both the 2nd and 3rd Defendants, it does not directly prove the Appellant's knowledge because there is no evidence that the Appellant could hear what was being said. The learned Magistrate could only draw an inference from the surrounding circumstances whether the Appellant had taken reasonable steps to prevent breach of his licence.

22. In Ground 3, Mr Grounds submits that the particulars of the charge and the Prosecution's opening refers only to the immoral purpose being "namely sexual activities offered to PC 33260, Leung Chun-kit by your staff". So Mr Grounds says that the Prosecution's case was the illegal or immoral activities of the 2nd and 3rd Defendants in the case and not that there was a system in operation. The learned Magistrate however found that there was a system in operation where "the staff would persuade customers to take the girls out for sexual activities by advocating their skills and that the girls would encourage this by sexually suggestive conduct".

23. It is clear that the learned Magistrate was referring in the plural to "girls" and therefore the "girls" were encouraging their being taken out by sexually suggestive conduct. The learned Magistrate rightly concluded from the scene as described by PW1 that the girls approached PW1 in a systematic and open way thus her reference to "a system".

Analysis & Conclusion

24. The Appellant is charged with breach of licence condition in that he had not taken reasonable steps to ensure that no immoral activities would take place in the bar. The actions of the 2nd and 3rd Defendants were relevant to this charge insofar that the Prosecution had to prove that immoral activities were taking place in the bar, which the learned Magistrate found to be so, but their actions does not necessarily impute knowledge to the Appellant. Thus the learned Magistrate had to find separately that she believed that the 1st Defendant or the Appellant could see and knew or believed what was going on and did nothing about it, or he failed to take reasonable steps to prevent it. The fact that she totally believed in PW1's evidence and found him to be entirely credible and reliable is not the end of the matter. She had to make a further finding as to what primary facts she found from which she could draw the inference that the Appellant had failed to take any steps to prevent the breach of the licence conditions. The fact that the services of the D3 was offered to PW1 so openly would suggest that an inference could be drawn that it was a normal service offered.

25. The fact that the 2nd and 3rd Defendants had acted so blatantly, is one of the factors that the learned Magistrate could consider. The learned Magistrate in paragraph 19 of her Statement of Findings said that the only inference to draw from all the evidence was that the bar operated "a system where the staff would persuade customers to take the girls out for sexual activities and that the girls would encourage this by sexually suggestive conduct". If the learned Magistrate inferred a system, it had to be based on primary facts that she had found. The primary facts that she found which she mentioned were the activities of the 2nd and 3rd Defendants, she was also entitled to consider that the only inference to draw for the actions of D2 and D3 that there was a system in place.

26. The other matter in paragraph 19 that the learned Magistrate seemed to rely on was the fact that the Appellant was sitting behind the bar counter for most of the time that PW1 was seated at the bar counter.

27. PW1's evidence was that he did not notice the Appellant, most of the time, as his attention was focused on the 3rd Defendant but he did notice the Appellant walking around at some stage and that the Appellant did look at him and the 3rd Defendant once, but he failed to go on to say at that time what they were doing.

28. The learned Magistrate is an experienced magistrate and it is not necessary for her to write out and identify every fact she had taken into consideration just the main points to give us all an idea what she did rely upon to convict the Appellant. The fact she may have misunderstood the Defence submission is of no great moment as it does not affect her ultimate conclusion that the only inference to draw is the Appellant did not take reasonable steps and permitting the premises to be used for immoral purposes.

29. As for PW1's evidence all his inconsistencies were brought out cross-examination and the learned Magistrate was aware of his reading of his witness statement half-way through his evidence. I see no merit in this ground of appeal.

30. Although the learned Magistrate could have written out more clearly her though process in coming to the conclusion that the Appellant had not taken reasonable steps to prevent the breach, this is a counsel of perfection after the event and there were sufficient evidence to properly support her conviction of the Appellant. It is also worth nothing that the Appellant was represented by counsel in the court below and he had pointed out all the discrepancies and matters in favour of the Appellant in his final submission so the learned Magistrate must have been well aware of all these matters complained of. The learned Magistrate had also directed herself properly on the law in this case.

31. In the event, I find no merit in the grounds of appeal and the appeal is dismissed.