THE QUEEN v. LO HAN QUAN

HEADNOTE

Validity of certificate under section 15(b) of the Massage Establishments Ordinance, Cap.266 - format of the certificate - application of the certificate dealing with premises occupying the whole of a given address to premises, the subject of the instant charge, occupying part of those premises. Significance of failure to follow the suggestion of Roberts, C.J. in The Queen v. Tai Wai Hang - assessment of penalty capacity to pay must be taken into account. A prison sentence may well be appropriate where the premises have been the place of a number of previous offences.

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JUDGMENT

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1. The appellant Lo Han-quan faced a charge that, contrary to s.4 (1) of the massage Establishments Ordinance Cap.266, On 11th May 1991 at 1/F, 581-581A Nathan Road, Mongkok, Kowloon in Hong Kong he did manage a massage establishment, a premises known as kam Chuen Kok Steam Finger Cure, for which a license was not in force. He pleaded guilty before Mr. G.P. Muttrie in the North Kowloon Magistracy and agreed to the Summary of Facts. This summary showed that the appellant had introduced undercover police officers to hostesses on the day charged and that the hostesses had then commenced to massage the officers.

2. After the defendant pleaded guilty the prosecutor tendered the criminal record form Of he appellant, which showed that he had two previous convictions which were not similar, and referred to a document which the Magistrate in his Reasons for Sentence characterized as "a certificate under section 15 (b) of the Ordinance". This purported to show that offences contrary to s.4 had been previously committed in relation to the premises the subject of the charge

3. Section 4 reads as follows:

"4.    (1)      Any person who on any occasion operates, keeps, manages, assists in any capacity in he operation of, or assists in the management of, a massage establishment for the operation of which a licence is not in force commits an offence.           (2)      For the avoidance of doubt it is hereby declared that it shall not be a defence that a person charged with an offence under subsection (1) did not know that the of the massage establishment which is the subject of the offence was not licensed.           (3)      Any person who commits an offence under subsection (1) shall subject to subsection (4) be liable -

 

(a)	On firs 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 an 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 pace or a part 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."

 

4. Section 15 reads as follows:

"15. For the purpose of any proceedings under this Ordinance a document purporting to be a-

 

(a)	copy of a licence and of any conditions to which the licence is subject certified to be a true copy y a police officer of the rank of Superintendent or above shall be received in evidence on its production without further proof and, until the contrary is proved, it shall be presumed that-

(i)	the document is a true copy of the lincence;
(ii)	the person who certified the document was a police officer of the rank stated in the certificate;
(iii)	the licence was issued in respect of the premises stated in the document to the person stated in the document and is subject to those conditions.

 

(b)

Certificate signed by a1police officer of the rank of Superintendent or above that the person named is the certificate was on the date specified in the certificate convicted an offence contrary to section 4 and that the offence was committed in relation to any place stated in the certificate shall be admitted admitted in evidence in any proceedings under section 4 on its production and without further proof and, until the contrary is proved,it shall be presumed that-

 

(i)	the person who signed the I certificate was a police officer of the rank stated in the certificate; and
(ii)	any person named in the certificate was on any date specified certificate convicted of an offence contrary to section 4 and that the offence was committed in relation to any ace stated in the certificate."

 

5. The document, which the magistrate treated as a certificate was in the form of a memo from "Commissioner of Police (District Commander Mongkok)" to "Magistrate, North Kowloon court". The document is headed "Managing an Unlicensed Massage Establishment" and is signed y "R.C. Williams, DDC MK for Commissioner of Police". The body of the document reads as follows:

            "1/F 581-581A Nathan Road, Mongkok,
Kowloon, in Hong Kong

            Please be informed that the above premises has been subject to successful Police raids under Massage Establishment Ordinance, Cap.266, Laws of Hong Kong.

 

2.          I furnish herewith a list containing similar offences committed on the same premises within the preceding two years from the day of this offence being committed for  your information and action please."

 

6. Attached to the memo was a list of 50 previous incidents dating from 11th January 1988 to 17th April 1991. The matter proceeded upon the basis that the list of previous incidents, which was beaded "Previous UME Convictions", detailed 50 convictions. This was, in fact, not correct as it listed 50 occasions when the premises, had been raided out which resulted in 70 convictions. The first matter of comment is this that the practice of sending a memo direct to the magistrate is an undesirable one and should be discontinued. If the officer concerned is furnishing a certificate under s.15, then he should head the document in appropriate terms and it should be sent to the prosecuting officer so that he can hand it up at the proper time to the magistrate dealing with the charge. Secondly, section 15 requires that a certificate be signed by a police officer of the Yank of superintendent or above.That being so it is desirable that the full rank of the police officer be stated rather than, as in the present case, "DDC MK".

7. These matters were raised in passing in the course  of argument. Mr. Hoosen, however, took no point thereon.

8. His first complaint was that the address of the premises in the memo was not the address of the premises the subject the charge.  The premises is the charge are "Kam Chuen Kok Steam Finger Cure" "at l/F 581-581A Nathan Road, Mongkok." He submitted, rightly in my view, that this refers to an establishment which is situated at that address but fails to specify whether the establishment occupies the whole of the first floor or only part thereof. He goes on to submit that the memo, which I am satisfied the magistrate was right to treat as a certificate and to which I will, hereafter, similarly refer, for the firs 60 offences which occurred between 11/1/88 and 7/6/90 refers to the "Kam Chuan Kook Steaming Batten" and gives the address "581-581A Nathan Road, 1/F" and for the remaining 10 offences which occurred between 7/9/90 and 17/4/91, it refers to the "Kam Chuan Kook Steam Bath" but gives the same address. I am satisfied that, given the way in which the address is stated, the certificate must be taken to specify that the establishments named occupied the whole of the first floor .Mr. Hoosen points out that the establishment named in the charge does not bear the same name as either of the establishments named in the certificate.He acknowledges that s.15 (b) allows the certificate to state that "an offence was committed in relation to anyplace stated in the certificate" but submits that s.4 (4)provides for increased penalties only if there have been prior convictions in relation to the same place or part thereof as that at which the conviction being dealt with occurred. He submits that if the convictions shown in the certificate are referable to the whole of  the first floor, as I am satisfied they are, then they are not convictions committed in relation to a part of that floor or a part of a part of a floor. He submits that as the charge, which has been admitted, fails to establish that the premises the subject thereof did not occupy only part of a floor it has not been shown that the premises referred to in the certificate are the same place as the premises referred to in the charge or a part thereof.  I find no merit in this argument.  I am satisfied that the premises referred to in the certificate must be taken to encompass the premises the subject of the charge and do therefore refer to "the same place".

9. Mr. Hoosen's next submission was that as the certificate does not in terms refer to offences under s.4 of the Ordinance but simply refers to "similar offences committed on the same premises" it is possible that it was referring to s.13 offences which are offences in relation to licensed premises. Given the existence of this possibility, he argued that the certificate could not be taken positively to establish s.4 offences. I find no merit in this argument as the certificate is headed "Managing an unlicensed massage establishment" and is, therefore, clearly referable to s.4 offences. The matter is put beyond doubt by the fact that the list of offences is headed "Previous UME convictions" which clearly refers to "unlicensed massage establishment" convictions. Although the certificate does not mention  s.4(1) in terms I have no doubt that it clearly states itself to refer to offences under that section.

10. Mr. Hoosen next argued that the sentence was wrong in principle because there was no indication in the charge nor any notice to the appellant that the Crown proposed to rely on the s.15 certificate. The suggestion that there had, been no notice was quickly put to rest as Mr. Forlin for the Crown produced a notice, the service of which had been acknowledged appellant, which stated that the Crown might tender a certificate under s.15 at the trial. Mr. Hoosen suggested that the sentence was, nonetheless, wrongly imposed as the Crown had failed to follow the suggestion of Roberts C.J. in The Queen v. Tai Wai Hang (unreported) Application for Review No.15 of 1984. Roberts.C.J. there said:

"We suggest that, in future, when a person is charged under s.4 there should.be some indication in the charge that the Crown.proposes to rely on the provisions of s.4(4)".

 

11. Mr. Hoosen submitted that the Crown having failed to follow this suggestion, this court should regard the sentence as being wrong in principle. I am unable to agree. The suggstion of the then Chief Justice, of the inclusion in the charge of an indication that a certificate might be tendered, was a proposal as to one possible way of dealing with the matter. The Crown have not thought it appropriate to follow that proposal. It has been thought proper to deal with the matter in a different but entirely roper way by giving notice in a separate document that a certificate may be tendered. There is, I am satisfied, nothing in this point.

12. Mr. Hoosen's final point was that the $5,000 fine was in al of the circumstances excessive. At this point in argument I indicated that I had understood it to be settled law that a fine should not be imposed unless it was within the offender's capacity to pay and that it was the duty of a sentencing court to make inquiry as to the appellant's financial capacity when imposing any fine which, given its magnitude, might be beyond that capacity. (Chan Sam v. The Queen [1968] HKLR 401). Mr. Hoosen at first sought to argue that the fine was, whatever the circumstances, excessive. I indicated to him that given the previous convictions I found it difficult to se how it could properly be suggested that the fine, given that the offender had the capacity to pay, was excessive. Mr. Hoosen then took instructions from his client and having done so asked to amend his grounds by adding a further ground s follows:

"The sentence was wrong in principle in that the magistrate failed to consider the applicant's ability t pay."

 

As there was no objection from Mr. Forlin this amendment was allowed.

13. The notes of proceedings do not reveal that the magistrate had made any inquiry as to the defendant's ability to pay. The appellant had told the court that he has been in poor financial circumstances, and that 23 days before the date of arrest he had taken the job managing the premises because the pay was $8,000 per month. This was the only evidence of his financial condition. The magistrate when sentencing said:

        "It is notorious that in Mong Kok there are perhaps 30 or 40 unlicensed massage establishments, which the police raid about once a month. On most days, one or two persons appear in Court No.1 at North Kowloon Magistracy as a result of these raids. On each raid the police seize equipment and signs, and after each conviction the court orders the forfeiture of the seized items. A first offender is usually fined $5,000, and a second or subsequent offender, or one who is treated as such under section 4 (4), up to $20,000. Fines are usually paid forthwith. However, after the court appearance the establishment will usually be back in business within days, with new equipment and a new manager, who will, in his turn, appear before the court in the following month. This sentencing practice, even allowing for the application of section 4 (4), seems to be ineffective as a deterrent.

 

        In arriving at the sentence I had regard firstly to the intention of the legislature as it appears from Section 4 (3) (b) and Section 4(4) which is clearly to deter the first offender by treating him as a second or suosequent offender thus taking him out of the category of one who should not nave imposed on him a sentence of general deterrent, unless he can satisfy the court of something inherently difficult to prove, i.e. his lack, not only of knowledge of, but of reason to suspect the existence of previous convictions. The whole tenor of the subsections is deterrent, and no doubt their purpose is, by striking at the first offender in this way, to make it difficult for the,owners of unlicensed massage establishments to recruit managers for them."

 

14. It seems clear from the above that the magistrate when imposing the $50,000 fine was endeavouring to hit at the real culprits, i.e. the owners of the establishment. Where it can properly be achieved it is no doubt appropriate in cases such as this to impose a financial penalty which will ensure that the real culprits bear the punishment. It is, however, in most cases not possible so to ensure where the person before the court is the manager. Any financial penalty imposed upon him must take into account his capacity to pay. In the likely event that he does not have the capacity to pay the substantial fine that might otherwise be warranted, the court must impose either a reduced fine or, if that be inappropriate, a sentence of imprisonment either forthwith or suspended. It would, I am satisfied, have been appropriate for the magistrate in the present case to have imposed a sentence of imprisonment forthwith and, given the circumstances, I am satisfied that a sentence of six months would have been proper. The magistrate's sentence was, therefore, wrong only insofar as it made the sentence of imprisonment alternative to a fine of $50,000.

15. The order imposing a fine will be quashed but the sentence of imprisonment will stand. I have been informed that the appellant has, in fact, been in prison since the date on which he was sentenced and that there are only a few more days of the sentence to run. There is, therefore, no need for any further order. The appellant will serve out the balance of his sentence. The appeal is dismissed.