THE QUEEN v. CHOY CHI-MAN

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H E A D N O T E

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Managing unlicensed massage establishment - proper sentence - duty to consider enhanced penalties under section 4(4) of Cap. 266 where previous convictions relating to same premises.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 783 OF 1989

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J U D G M E N T

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1. The appellant was convicted by Mr Gould at North Kowloon Magistracy of managing an unlicensed massage establishment, contrary to section 4(1) of the Massage Establishments Ordinance, Cap. 266 and was ordered to be detained in a Training Centre.

2. The case arose out of a visit to the premises by a plainclothes police officer, who paid for and received massage from a masseuse. No sexual activity was offered and none took place. A police raid followed and the appellant was arrested. He admitted he was in charge and that the establishment was unlicensed.

3. In mitigation it was urged that he had pleaded guilty, was only 18 and had been employed there for five days. He has three previous convictions, but none for this type of offence.

4. The proper level of sentence for this offence was considered by the Court of Appeal in R v. Tai Wai-hang, Application for Review 15/84. The facts were similar, except that the respondent was 24. He was fined $2,500 and the Crown applied for a review. The Court of Appeal held that, for a first offender, the sentence was manifestly inadequate and suggested that fines should start at $5,000 and go upwards. For reasons of clemency, the court did not, however, interfere with the sentence and dismissed the application.

5. I am satisfied that a custodial sentence in this case was wrong in principle. I allow the appeal, quash the training centre order and substitute therefor a fine of $5,000.

6. There is a further matter of importance that was also raised in Tai Wai-hang. S.4(3) & (4) provide :-

"(3) Any person who commits an offence under subsection (1) shall subject to subsection (4) be liable -

(a) on first conviction to a fine of $50,000 and to imprisonment for 6 months;

(b) on a second or subsequent conviction to a fine of $100,000 and to imprisonment for 2 years.

(4) A person convicted of am offence under subsection (1) shall be liable to the penalty prescribed by subsection (3)(b) if within 3 years prior to the date of his conviction another person was convicted of an offence against that subsection committed in relation to the same place or a past thereof to which his conviction relates unless he satisfies the court that at the time of the offence under subsection (1) for which he is convicted he did not know and had no reason to suspect that another person had been so convicted."

In Tai Wai-hang, Roberts, C.J. said at p.2. :

    "The intention of the legislature, as derived from the provisions of this section, was to provide a means of dealing with the situation in which the overt management of an unlicensed massage establishment changes from time to time, so that the courts are faced with a succession of managers, all of whom apparently have clean records. Thus section 4(4) enables the court to impose on a person, who is convicted of an offence under section 4(1) the enhanced punishment, provided by section 4(3)(b), if another person had been convicted of such an offence in relation to the same premises, during the three years before the conviction.

    Section 15 of the Ordinance enables a certificate, provided by a police officer of the rank of superintendent or above, to be produced in evidence in any proceedings under section 4, setting out any previous convictions recorded in relation to the same premises.

    A certificate was produced before the magistrate, showing that, within the previous few months, there had been no less than seven other convictions for' managing an unlicensed massage establishment on the same premises. We suggest that, in future, when a person is charged under section 4 there should be some indication in the charge that the Crown proposes to rely on the provisions of section 4(4). This is because it is open to an accused person to avoid this provision, by satisfying the court that he did not know, and had no reason to suspect, that another person had been convicted in relation to the same premises. Since this burden lies upon him, it is reasonable that he should have notice of the fact that he is going to have to attempt to discharge it.

    As we have said, a certificate under section 15 was produced before the magistrate. However, instead of giving to it the effect which section 4(4) requries, he purported to rely upon what he called an "established practice" to the effect that unless the defendant has been "warned previously", the operation of section 4(4) is invalidated.

    If in fact any such practice has grown up, it is an improper one. The correct course for a magistrate is to apply section 4(4) in the terms in which it stands.

    As a result of his reliance upon this practice, the magistrate, although he had a certificate before him, treated the respondent as if he were a first offender, liable only under section 4(3)(a), and not (as he should have done) liable to the enhanced penalties provided by section 4(3)(b)."

7. Counsel for the Crown informs me that there has been one conviction for this offence in respect of these premises within the last three years and that therefore s.s.(4) should have come into play.

8. Clearly the Court of Appeal's suggestion has fallen on deaf ears. When I asked why the earlier conviction had not been brought to the attention of the magistrate, counsel stated that her instructions were that, when this was done at North Kowloon, the magistrates ignored it.

9. If that indeed is the case, I trust that in future proper attention will be paid to the directions of the Court of Appeal.