THE QUEEN v. TSO KAI TAI AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO 728 OF 1988

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BETWEEN

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J U D G M E N T

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1. The thee Appellants were D2, D3 and D4 when they were jointly charged with assisting in the management of premises kept as a vice establishment They were found guilty after trial.

2. Five witnesses gave evidence for the Prosecution whilst A3 and the proprietor of the premises gave evidence for the Defence.

3. The premises in question were known as Kam Fong Night Club and were situated on the third floor of a building in Yaumatei. The Prosecution evidence was that on four days during October, 1987 undercover police officers visited the premises. On each visit a lewd act was performed by a girl with a male office after he had agreed following a request made to him either by the girl or by A1 or A2 "to hang the bill". Over the period of the visits seven such acts occurred on the premises with seven different girls.

4. A3's evidence was that the establishment provided musical entertainment and refreshments for its customers There were singers who accompanied a band playing continously to perform 18 musical pieces per hour. Customers paid $3 per song. Ushers introduced hostesses to chat to customers Each hostess had a book from which she tore a coupon each time a customer sat with her through a song. When the customer left he was charged according to the number of coupons torn off during his stay plus the cost of any drink or food he had consumed. Hostesses were paid weekly. They did not receive any commission or tips. He said that the expression "hanging the bill" had only one meaning and that was that the bill was held whenever a customer left the premises with a hostess waiting to be paid by the customer on his return, or by the hostess if the customer failed to return.

5. The proprietor said that the night club business on the premises had been lawfully conducted since 1978, that the club had held a liquor 1icince throughout, that he had never been prosecuted and that no objections had ever been lodged against the renewal of the club's licence. The establishment was run as a "high class Japanese style night club" Customers patronised the place to dance or play finger games with a hostess "Hanging the bill" had no meaning other than that the customer wants to retain a favourite hostess so that she does not leave him and move to another table. When he "hangs the bill" the customer undertakes "to buy an hour's worth of song tickets whether he sits and talks to that hostess or takes her away from the premises.

6. The learned magistrate did not accept the Defence evidence regarding the meaning "He found the premises to be a vice establishment at the time alleged and that each Appellant was assisting in its management.

7. Mr. Huggins, for all Appellants, attach the convictions on the basis that the reasons given by the learned magistrate for his findings regarding the nature of the premises and the Appellant's knowledge of their use as a vice establishment were "bad reasons".

8. In his Statement of Findings the learned magistrate said:-

"I fount that the Appellants and each of them had been present at the Night Club on more than one occasion when PW1 and PW5 were there and that each behaved on each occasion as described by PW1 and PW5. I found that on each occasion the hostesses indulged acts of sexual indecency when PW1 and PW5 had agreed "to "hang the bill" I was satisfied that this was the system operated by the Night club on each occasion and that to "hang the bill" meant to "go double "or that the hostesses would indulge in acts of sexual intimacy on payment of higher fee."

9. By his first ground of appeal Mr. Huggins contends that the learned magistrate erred in law and in fact in his finding about the meaning of "hanging the bill" and submits that he could only have come to the conclusion that he did by relying on the evidence of the officers about what the girls told them as to the meaning of the phrase. The learned magistrate, however, found that whatever phrase might be used as a synonym for, the expression the evidence showed that it meant that the hostess would indulge in acts of sexual intimacy. Mr. Huggins challenges that finding contending that it is an example of the post hoc ergo propter hoc fallapy. I do not agree. It was not a fallacious equating of consequence with sequence to hold that there was a relationship of greater significance than mere sequence between an agreement to hang the bill and subsequent bestowal of sexual favours when there were seven instances involving seven different hostesses in four visits made over a two-week period. It was an exercise consistent with logic and commonsense to hold that the sexual act was not a chance event which happened to follow agreement to hang the bill but was in fact the usual concomitant of that act of agreement in that establishment. If the phrase ever meant what A3 and the proprietor claimed it meant then the conduct observed and experienced by the police officers showed that by October 1987 the term had acquired a quite different but quite well understood meaning within the establishment. The learned magistrate had a sound evidential basis for rejecting the Defence definition of the term

10. Ground 2 complains that the learned magistrate failed to deal with an important point made by leading counsel who appeared for the Defence at the trial. That point was to the effect that the hostesses may have had motives of their own to serve in making sexual advances to customers after customers had agreed to hang the bill and that that motive could have been quite unconnected to the objects and intentions of the management of the night club.

11. It is true that the learned magistrate does not mention this point, no doubt because on the evidence which he accepted it did not call for mention. The girls were employed by the club to entertain customers. If the lewd behaviour element of the entertainment brought the girls any financial reward -- it was not suggested that philantrophy was their motive -- then they had to rely on the club to collect the reward for them because no girl was ever paid directly: all entertainment charges were collected by the establishment. There was on the evidence no "moonlighting" on the club premises.

12. Ground 3 attacks the finding that the Appellants were aware of the acts of the hostesses. The question about hanging the bill was, on the evidence, a routine question asked on every every occasion of a police undercover visit. The learned magistrate was entitled to infer from that that it was addressed to every male customer who entered the premises. In view of what invariably followed agreement anyone who asked the question on those premises must have known what it meat. As each Appellant was employed to introduce hostesses to customers I cannot see how any conclusion was available to the learned magistrate other than that each of them well knew that the premises were kept as a vice establishment

13. I find no merit in any of the grounds and dismiss the appeal in respect of each Appellant.