THE QUEEN v. LEE KOK MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISRACY CRIMINAL APPEAL NO. 1492 OF 1989

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BETWEEN

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JUDGMENT

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1. The appellant was convicted on the 8th November 1989 of (A) managing a vice establishment, (B) man living on earnings of prostitution, and (C) man living on earnings of prostitution. He was sentenced to 3 months' imprisonment and a fine of HK$10,000.00 on the (A) charge and 6 months' imprisonment on each of the other two charges, all to run concurrently. He appeals against both conviction and sentence.

2. The facts found by the Magistrate which are not challenged by the appellant are that :-

In addition there was undisputed evidence from PC7236 CHENG Chi-keung that when he arrived at the premises during the police raid, there were two other couples in the premises besides the two police officers and the two prostitutes. However, there was no evidence as to the relationship between the male and female of these two other couples.

3. On these findings and this evidence the Magistrate convicted the appellant on all three charges.

4. The appellant's first and only ground of appeal relating to the (A) charge is that the learned Magistrate erred in his finding that the evidence in respect of this charge is sufficient to prove that the subject premises were used wholly or mainly for the purposes of prostituion :-

This ground of appeal arises from section 117(3) of the crimes ordinance which provides: -

5. The learned Magistrate dealt with this aspect of the law in his statement of findings as follows :-

"Now on the point of the premises, being used wholly or mainly for prostitution, it has been pointed out to me that there were two innocent couples also found in the premises who were released after enquiries. In fact there is no evidence at all as to these two couples, they may have been husband and wife, lovers and lasses, a customer and prostitute, all of whom in law would have been there 'innocently', but what you (the appellant) are saying, in effect, is that by a singular and remarkable coincidence it just so happened that, perhaps even for the first time ever, you (the appellant) decided to embark on this course of conduct with these two police agents and with them alone.

 

But your alacrity betrays you. On the arrival of two single men, quite separately, each is very soon asked in blunt terms if he wants sex and, the answer being yes, prostitutes are quickly brought.

 

The in-escapable inference that I or any Hong Kong juror would derive from your observed behaviour is that it so commonly happened as to be a common  place, indeed with a supply of women readily available. No Hong Kong juror would believe the events of this evening to be unique."

6. Mr Hemmings for the appellant argues that the Magistrate was wrong to draw the inference that the premises were used wholly or mainly for the purposes set out insection 117(3) of the Crimes Ordinance.

7. He submits that there is a need in the densely populated parts of Hong Kong for apartment houses to exist for the purposes of renting rooms for short periods, to enable couples to find the privacy they need for intimacy, and that the provision of accommodation for these purposes does not make such premises a vice establishment. Of course, he says, prostitutes do take clients to these apartment houses but that does not mean that the apartment houses are used wholly or mainly for the purposes of prostitution.  He submits that one has to look at the extent of the illegitimate user and relies on the judgment of Bewley, J. in The queen v. Cheng Sung-hin M.A. 489/85 where there was evidence of an innocent letting of rooms contemporaneous with the arranging of prostitution. On the facts, the learned judge was not satisfied that the prosecution had established the wholly or mainly element.

8. Mr Hemmings submits that the Magistrate confused the test of wholly or mainly with his understanding of the defence which was being put forward. When making the remark about the singular and remarkable coincidence, he was effectively saying "Even though it may be that other parts of the premises were being used quite legitimately, effectively you are saying these are isolated incidents". He submits that this is not a legitimate inference and is not a particularly helpful one. Even if the Magistrate forms a view that they were quite common, he still has to be satisfied on the wholly or mainly point. The burden is on the prosecution to show that the illegal user is more prevalent than the legal user. "How can one infer that because girls are provided on two occasions, that the principal user is for that purpose?" poses Mr Hemmings. He suggests that the provision of contraceptives in the premises should be applauded having regard to the present drive to inform the public of the danger of Aids.

9. Mr Kilgour for the respondent accepts that there is a need for apartment houses providing rooms for short periods of rental to enable couples to find the intimacy they need in our crowded society. The purpose of Part XI of the Crimes Ordinance is not to stop sex, he says, neither is it to stop the legitimate business of apartment houses. What the section is against is the organizing, and habitual use of the premises for the purposes of prostitution. And what the court is faced with in the present appeal is the organisation of sex for a profitable purpose. That profit may come in an indirect way from the rent of the room for the illegitimate user. He stresses the evidence relating to the switching on of the television set displaying a pornographic film. Coupled with this is the fact that two police officers went to the premises separately and independently and both were offered sexual services. So far as the other two couples are concerned, it is not known whether they are genuine customers or whether they, too, have been provided with women. Although one cannot speculate on this, he maintains that the evidence has gone far enough as far as the whole or main user of the premises is concerned. He maintains that Cheng Sung-hin's case can be distinguished on the basis that the Magistrate's findings that one gril who admitted she was a prostitute came and visited the apartment on separate days was not sufficient, in the circumstances to bring the apartment house within the. ambit of the Crimes Ordinance.

10. Mr Kilgour accepts that the Magistrate had to look at the principal user, but in this case says he has done that. He submits that the judgment in Cheng's case was very much a "factual judgment" and that this can be seen from the judgment in The Queen v. Lee Kin-wai M.A. 102 f 1985. In that case the Magistrate found that the premises concerned were a vice establishment on the basis of visits by police officers on the 2nd October 1984 when lewd acts took place with two females and by a visit by a police officer on the 27th September 1984 when lewd acts also took place in the premises. The Magistrate drew certain inferences from the lay-out of the premises (agreed plan), the use of torches, the number and position and size of the booths, the behaviour of the hostesses and he relied on those inferences in assisting him to come to the conclusion that the said premises were being kept as a vice establishment.de Basto, J. affirmed the conviction and dismissed the appeal. In doing so he said :-

"In my opinion the words 'wholly or mainly' are intended to be descriptive of the use of the premises rather than frequency of user. The fact that the two women who committed acts of lewdness could have asked the police officers to buy them a drink or a sandwich or even to dance with them cannot be indicative that the premises were not used 'wholly or mainly' by two or more women for the purposes of prostitution.

 

In my view on the 2nd October 1984 when the two officers had lewd acts committed on them by two women the premises were then used wholly or mainly by two or more women for the purposes of prostitution and the learned magistrate was right in holding the said premises were a vice establishment."

11. Those were the submissions made on this appeal. I have reached the conclusion that Mr Kilgour is right when he submits that there was enough evidence to justify the learned magistrate's finding that the premises in question were a vice establishment. Although the facts relate to one occasion in which a police raid took place, there has been no suggestion before me that there was insufficient evidence to establish the necessary continuance of the user. The whole set up of the premises and the claim by the appellant that he had a lass on hand and his quoting of the prices for their different services together with the switching on of the pornographic films and his own admission that the video films can be played in each room indicates sufficient user to satisfy this element. The only issue on this appeal is whether it was established by the evidence that the premises were used wholly or mainly for either of the purposes set out in Section 117(3). I do not think that this is a question which is suspectible to an answer based on a mathematical formula. In view of the questions asked by the appellant of the police officers when they arrived the quoting of prices for the prostitutes services, the switching of the pornographic film on the video and the other undisputed evidence, I consider that the evidence was open to the inference that the premises were used mainly for the organizing or arranging of prostitution. I am not prepared to say that the Magistrate reached the wrong decision in this case. The appeal on the first charge is therefore dismissed.

12. The only ground of appeal in respect to the (B) and (C) charges is that "the learned Magistrate erred in inferring that the appellant lived wholly or in part on the earnings of prostitution of Yeung Chung Yee and Chung Wai Tsui in the absence of any direct evidence.

13. The presumption referred to by the Magistrate is contained in section 137, the section under which these two charges were brought subsection (2) provides :-

"(2)    For the purposes of subsection (1), a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a woman's movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution,unless he proves the contrary."

14. Mr Hemmings submits that there was no evidence in this case to indicate any financial advantage to the appellant. It was open for the Magistrate to say "I rely solely on the presumption" but he did not do that. He argues that it is not sufficient to infer from the fact that the appellant was found to be managing a vice establishment, that he was making a profit in the sense of living on the earnings of prostitution. The money paid for the rent of the room was a legitimate source of income. He criticises the Magistrate for using the word "inevitably" in the above passage contending that it does not follow at all. Furthermore he argues that the Magistrate did not consider whether there was evidence  in rebuttal to establish the contrary on the balance of probabilities.  He argues that if the Magistrate had properly directed himself regarding the presumption, he would have to look at the evidence as a whole and he would not be able to find in that evidence anything to indicate that any of the money from the prostitution came to the appellant.

15. Mr Kilgour submits that the Magistrate quite clearly did rely upon the presumption because he said so and argues that he was justified in doing so. He also argues that the mere fact that there was no evidence to the effect that the money paid to the prostitutes for their ervices actually went into the hands of the appellant, did not necessarily mean that the appellant was not receiving some reward for the facilities being offered. A cautious vice establishment manager would ensure that money does not overtly come to him. He has cited a number of authorities.

16. In The Queen v. Leung Cheong Wong, J. dismissed an appeal against conviction in respect of such a charge where the evidence related to the events of only one day and where there were two prostitutes involved. In The Queen v. Woo Shu-wai M A. 845/1987, Addison, J. similarly dismissed a conviction in respect of such a charge where the evidence related to the events on one day. In The Queen v. Ip Ping-kan, Magistracy Criminal Appeal No. 791/1987, Bewley, J., found nothing odd in the fact that the evidence related to just one day. He also said in the course of his judgment :-

"The fact that no money changed hands is irrelevant. There is prima facie evidence that he was exercising control, direction or influence over a woman's movements in a way which showed he was aiding and abetting her prostitution with others.  There is therefore a burden upon him to show that he was not living wholly or in part on the earnings of a prostitute."

In The Queen v: Lee Leung-wai M.A No. 886/1987 Bewley, J. held :-

17. In my judgment, in the present case the facts found by the Magistrate together with the other evidence of the prosecution witnesses which the Magistrate stated in his findings that he believed, was sufficient to establish beyond reasonable doubt that the appellant was exercising direction and control over the prostitutes concerned, thus raising the presumption. The Magistrate stated that he did not believe the appellant. Although the Magistrate did not specifically say that he had examined the evidence as a whole and was not satisfied on the balance of probabilities that the presumption had been rebutted, I do not consider that this is fatal. He is a very experienced Magistrate and is clearly well acquainted with the law in this respect. He clearly was not so satisfied that the presumption had been rebutted, otherwise he would not have convicted the appellant. I can see nothing on the record to indicate that he was wrong to reach the conclusion he did as to the appellant's credibility, or to reach the conclusion that the presumption had not been rebutted.

18. In the circumstances, the appeal against conviction on charges (B) and (C) are dismissed.

19. I will now hear counsel on the matter of sentence.