THE QUEEN v. KO CHI KUN (D2)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 240 OF 1986

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BETWEEN

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JUDGMENT

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1. At the conclusion of the hearing of this Appeal I ordered that it be dismissed and added that I would publish my reasons in writing. I now do so.

2. The Appellant was convicted on a charge of Assisting in the Management of a Vice Establishment contrary to s.139(b) of the Crimes Ordinance.

3. The Prosecution evidence was that two police officers in plain clothes visited premises known as Tai Kung Cheuk Night Club in Kimberley Road for the purpose of discovering whether it was being operated as a vice establishment within the meaning of that term under the Crimes Ordinance. Upon arrival at the premises they were met by the Appellant who led them to a booth and asked them what drink they wished to order. When he returned with the drinks one officer asked whether the hostesses at the premises could be taken out for sexual purposes. The Appellant replied, "Of course". When asked how much the charge was he said, "Well, fixed price". In response to a further query as to whether a girl could be taken out for sexual purposes for less than the fixed price he said it could be discussed with the girl but that a "Tai Chung" should be bought first and that the cost for that was $130. At the request of one of the officers the Appellant then brought a Tai Pane to see them. Through her arrangements were made to take out two girls for sexual purposes at a charge of $250 per girl. Without any discussion the two girls selected by the officers led them to premises on the floor above the night club premises where the whole party was met by a housekeeper who ushered each couple to separate rooms. Each girl then initiated lewd conduct with her partner.

4. The Appellant gave evidence denying, in effect, that he told the officers that prostitutes could be obtained at the premises.

5. The learned magistrate rejected his denial, accepted the prosecution evidence set out above and convicted him.

6. The first six grounds of appeal attack some of the primary findings of fact which led to the secondary finding that the night club premises were kept as a vice establishment.

7. The learned magistrate said in his Statement of Findings :-

"Both [officers] said there eras no conversation about payment with the hostesses. Both denied arranging arty payment with them."

8. The description each officer gave in evidence in chief regarding the visit to the premises outside the night club implied that there was never any discussion with the girls about the purpose or payment in respect of that visit. In, cross examination each denied the suggestion that both purpose and payment were discussed only with the girls. On a literal reading of the evidence the criticism levelled in ground one is valid in that neither officer did say that there was no conversation about payment with the hostesses and neither officer denied arranging payment with them. They were, of course, never asked any question which could have prompted an assertion that there was no conversation about payment nor any question which could have elicited a denial of arranging payment with them. But the overall impression created by the uncontradicted part of their evidence was that there was no such arrangement made directly by them with the hostesses. The compelling inference from the evidence accepted by the learned magistrate was that there was no need for any discussion with the hostesses : all had been arranged with the Tai Pan after the Appellant had indicated that such arrangements were made "as a matter of course". The learned magistrate's reference to this part of the evidence was inaccurate only if he meant by it that that was the direct evidence. If he meant that that was the compelling inference from the direct evidence then his assertion was sound and unassailable. There is therefore ho substance in this ground.

9. The second ground was that the learned magistrate was wrong in finding that the payment for the conduct in the adjacent premises was covered by the $130 Paid at the night club. This criticism is valid because the learned magistrate did make that finding and it was not supported by the evidence which he accepted. On the evidence he accepted the finding should have been that each officer, in order to engage in lewd conduct with a hostess, had to pay "a fixed price"; that that fixed price included a Tai Chung element of $130, which was non negotiable, and another element which was usually $170 but could be a lower figure through successful bargaining with the Tai Pan. Upholding this ground simply means that the learned magistrate was right in finding that the establishment provided the officers with prostitutes but was wrong in finding that it provided them so cheaply.

10. Ground five attacks a finding in relation to the practice of registration at the 'villa', the adjacent premises to which the officers were taken. The learned magistrate in the course of his findings said --

"... registration was compatible with ensuring that the bought out time was not exceeded and that each hostess then returned to the premises or was bought out further."

11. The bills issued at the night club contained an item labelled "Big". $130 was recorded in each case in respect of that item. The registration docket issued at the "villa" to each officer on arrival had a box labelled "In" with an adjacent box labelled "Out".  In each case "6.20'' was recorded in the box labelled "In" and "9.20" recorded in the box labelled Out. The submission was that since the night club received payment for one hour and the "villa" booked the parties in for three hours the registration period exceeded the "bought out time". The learned magistrate was, therefore, wrong to say that the two periods were concurrent. There was, however, no evidence as to what were the full implications of the entries. The single character "Tai" on the night club bill is an obvious abbreviation for Big Hour but there was no evidence as to whether that meant a period of time or an area of activity nor any evidence, if it did refer to a period of time what that period was. The period covered by the "Tai" payment at the night club and the period recorded at the "villa" may or may not have been equivalent. The two entries do not by, themselves support the learned magistrate's observation. To the extent that he suggests they did  he was wrong. The observation was, however, made in the course of a long catalogue of "circumstances indicative of well-established routine and organisation". Most of the evidence proving those circumstances was unchallenged. The findings in respect of some of those circumstances were attacked in grounds three, four and six.

12. Those three grounds attack the ultimate finding that the night club premises were kept as a vice establishment. The learned magistrate was aware that the "kept" element could not be established by evidence of isolated use for the proscribed purpose. There was evidence of "only one visit made by the police to the premises". The learned magistrate in 2-1/2 pages of his Statement of Findings sets out and discusses the circumstances that led him to conclude that the hiring out of hostesses to indulge in lewd conduct with customers of the night club was an "established routine and practice". In particular, he referred to the evidence that the Appellant had said that such hiring out was done as a matter of course at a fixed price. The learned magistrate's analysis of 24 bills presented at the night club at and around the time of the police visit led him to conclude, correctly in my view, that there was a pattern of "buying out" from which the establishment derived almost the whole of its income. The evidence that the Appellant had said that "a big hour" had to be paid for in order to obtain a prostitute and the evidence of the conduct of the girls after being introduced to the officers subsequent to their paying the big hour fee and the balance of the fixed price justified the learned magistrate in finding, as he did, that

"this was an established and organised system with the premises used on the 18th November 1985 and having been so used before 18th November 1985 wholly or mainly for or in connection with the organising or arranging of prostitution."

13. The remaining grounds of appeal attack the finding that the Appellant assisted in the management of the vice establishment.

14. Ground seven contends that the learned magistrate failed to give proper consideration to evidence that the Appellant told one of the officers that "if he wanted to discuss the matter of sex he had better arrange it with the hostess herself".

15. The witness who gave that evidence had said in evidence in chief that when he asked the Appellant whether the fixed price was negotiable the Appellant had replied that he could discuss that with the girl. In cross examination, during a series of questions in which it was being put that arrangements to take the girls out for sexual purposes was never discussed with the Appellant, it was also put that the Appellant had said that if the witness wanted to discuss the matter of sex he had better arrange it with the hostess herself. The witness agreed. The other officer's evidence was that the Appellant in reply to the question about a reduction in price said that they should discuss that with the girl.

16. Counsel for the Appellant at the trial (who was not Mr. Wong) said in his final address :-

"As far as the evidence is concerned, appears only one principal item of evidence, that is whether there had been a conversation between [the officers] and [the Tai Pan and the Appellant ] relating to the provision of sexual services and the subsequent negotiation for the reduction of the price of sex. Really a question of fact [The officers] said one thing, [the Tai Pan and the Appellant] said another thing."

17. Thus, the counsel who asked the question which brought out the evidence quoted in ground seven saw no area of agreement between that evidence and the evidence of the Appellant. The evidence is not recorded in question and answer form. It is a paraphrase of the effect of the question and answer. Those who heard the question and the answer were obviously under the impression that the evidence related to the topic of a price reduction. The learned magistrate, having accepted the evidence in chief where the witness related the actual words spoken by the Appellant, was entitled to conclude that the evidence quoted was not a reference to "any matter concerning sex" but a reference to particular arrangements outside those available for the fixed price. That is the only sensible interpretation of the evidence when it is considered in the context of the evidence in chief of both officers and the persistent denials in cross-examination that all the arrangements for lewd conduct were made with the girls. The evidence does not therefore have the significance it appears to have when isolated from its context.

18. Grounds eight and nine refer to the evidence of the Appellant's participation in the arrangements and contend that the learned magistrate failed to give sufficient consideration to the evidence that it was the Tai pan who was in charge of the hostesses and that the Appellant did not take part in the actual arrangements which led to the officers being assigned to particular prostitutes.

19. The learned magistrate did consider these matters. He found, however, that:-

"[ the Appellant ] advised [ the officers ] of the availability of the hostesses for sex and that the price was generally fixed........ [ he ] knew full well the premises were for the arranging of prostitution. He was playing an essential and integral part in their operation for that purpose ....... he was not simply a menial or routine employee ...... but was knowingly performing an integral part in the operation of the premises as a vice establishment and directly furthering the operation of the premises as such."

20. On the evidence he was entitled to come to that conclusion.