THE QUEEN v. SIU WAI-YIN AND ANOTHER

THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 607 OF 1989

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BETWEEN

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J U D G M E N T

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1. The two appellants were tried together on separate charges alleging that each had on the 10th of January 1989, at the Great Duke Bar and Night Club in Kimberley Road, assisted in the management of those premises kept as an advice establishment, an offence under s. 139 of the crimes Ord. Cain. 200.

2. On the 5th of January 1909 police officers visited the club and informed the 1st and 2nd appellants, and other persons associated with the premises, that the police had evidence that, earlier that day, the 1st appellant had arranged for two females to work as prostitutes for undercover agents. The evidence was set out in writing in a record which the police call an "occurrence book." Following the evidence there was a written warning that if the police discovered similiar evidence in future prosecution action would follow. The two appellants were asked to read the entry and to sign under it to confirm their understanding of it and each did sign.

3. On the 9th of January M39, a police officer "posing as a member of the public" visited the premises about 6.35 p.m. During the course of his visit, which lasted about 35 minutes, he was introduced to two hostesses, each of whom indulged in lewd benaviour with him and offered to have sexual intercourse with him for reward. On that occasion neither of the appellants was present in the premises.

4. On the 10th of January 1989, another two undercover police officers visited the premises about 6:30 p.m. The 1st appellant escorted them to a taken, told them, that hostesses were available who could be taken to a nearby villa for sexual purposes, and that the charges payable to the establishment, if the hostesses were so taken, amounted to such and such. He then brought two hostesses and asked if they were suitable. The officers accepted the girls who each indugled in lewd benaviour and offered to have sexual intercourse for reward. The officers did not accept the offers in respect of sexual intercourse and left the premises.

5. Half an hour later they returned. The 1st appellant again met them and introduced two other girls and said that the fee for taking them out was about $400. After the two girls were introduced, each indulged in lewd benaviour with the officers, and each offered to indulge in sexual intercourse for reward. On this occasion the officers accepted the sexual intercourse arrangement. Whilst the girls were absent collecting their handbags preparatory to departure from the premises, the 1st appellant approached the officers and presented a bill for $391.60. He said that the bill included the cost of the hostesses' time and that the cost for sexual intercourse had to be paid to the hostesses directly and would amount to about $500. The money paid to the 1st appellant was handed by him to the 2nd appellant who was in charge of the cashier's counter.

6. The 1st appellant, tae 2nd appellant and two of the hostesses gave evidence. The 1st appellant denied the allegations that he had discussed with officers sexual conduct with the girls. He said that he had merely introduced hostesses to chat with customers. Although he knew the customers took hostesses away from the remises, the policy of the business was to warn all employees that acts of indecency were not allowed on the premises. When he signed the occurrence book on the 5th of January, he had no opportunity to read the entry but he did realize that it was a warning.

In evidence in chief he said that he had no criminal convictions. The record of the beginning of his cross-examination reads as follows:

"Did say I have a clear record. On 5.1.1989 I was arrested on 2 charges of Man living.

Mr. Pow: [his counsel at the trial] I object, I asked about criminal convictions.

Prosecution: he has put his character in.

Court: I rule that tire question is proper, he has indeed put his character in issue."

7. The 2nd appellant said that he had never seen any act of indecency on the premises. His duty was to act as clock marker, to receive payments and draw up bills. There were two different charges in relation to hostesses: one was in respect of the time they spent at tables and the other for "time out". It was not unusual, he said, for customers not to ask for "time out". He did not read the entry in the "occurrence book" before signing it on the 5th of January, having been told to sign as part of the routine procedure during a licence check.

8. The effect of the hostesses' evidence was that they only accompany customers to leave the premises if they were on goon terms. No arrangements regarding sexual intercourse for reward were discussed in the premises.

9. The learned Magistrate accepted the evidence of the police officers where there was conflict between their evidence and that of the defence witnesses, found that the premises were being kept as a vice establishment, that each appellant has assisted in its management on the 10th of January 1989, and found each of their guilty as charged.

10. Each now appeals against his conviction relying on the perfected grounds of appeal submitted in respect of the first Appellant.

11. The first ground is that there were material irregularities in the course of tile trial arising from the Magistrate (a) ruling that the 1st appellant had put his character in issue, and (b) allowing the 1st appellant to be cross-examined on the fact that he had been charged with two offences of man living on earnings of prostitution.

12. The learned magistrate in his Statement of Findings, prepared before the filing of the perfected grounds of appeal, said this:

"The 1st appellant gave evidence on his own behalf. I found that he had no previous convictions, and I bore that in mind in assessing his evidence. I admitted evidence about an outstanding allegation not yet tries, since a) he had given evidence of his good character, and b) it was relevant to the state of his knowledge of vice activities being carried on in the club. I bore in mind that the allegation was as yet unproved, and I thought no less of the witness's evidence because of the existence of the allegation."

13. The evidence or what happened on 5th of January 1989 when the police officers drew the appellants attention to certain evidence, was relevant to the question of the appellants knowledge of the nature of the business being conducted on the premises. The charging of the 1st appellant was apparently a matter which arose out of the police visit on the 5th of January 1989. The evidence that the 1st appellant had been charged was, however, not relevant even if the 1st appellant's character was in issue. (See Stirland v. the Direct of Public Prosecutions [1944] A.C. 315 per Viscount Simon LC at p. 323 and The Queen v. Smith, The Times newspaper 20.6.1989.) The learned Magistrate makes it Clear however, that the evidence did not influence him, in reaching his decision. That distinguishes this case frog; The Queen v. HUI OI LEE, and others MA M55 of 1988, where the appeal was allowed because Duffy, J., could not be sure, there being no indication in the statement of findings to help him, that the Magistrate had not been influenced by evidence wrongly admitted. Here, it can be said that the learned Magistrate must have come to the same conclusion even if the inadmissible evidence had not been put before him. It can be so said because the learned Magistrate makes it clear from his statement to findings that he came to that conclusion igorning that part of the evidence. The irregularity was therefore not such as to render any of the convictions unsafe or unsatisfactory.

14. There was a second ground of appeal in the perfected grounds of appeal but during the course of his submissions, Mr. Cheng, who appears on benalf of the appellants on this appeal, abandoned that particular ground. As the only ground advanced in support of the contention that the convictions were unsafe and/or unsatisfactory is not in my view sufficient to warrant my holding that either conviction is unsafe or unsatisfactory, the appeals of both appellants must be dismissed.