THE QUEEN v. NG LOK NGAI AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 179 of 1987

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J U D G M E N T

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1. On the 22nd January 1986, 9 defendants including the 3 appellants appeared before the Magistrate at Causeway Bay, charged with various offences arising out of activities which occurred on the 17th October 1986.at the premises of the Paul Shing Association Ltd., No. 3 Marsh Road, 1st floor, Wan Chai. All the defendants pleaded not guilty to their respective, offences with which they were charged and at the outset of the trial no evidence was offered against the 4th, 5th, 6th and 7th defendants and they were accordingly discharged. After trial the 1st appellant NG Lok-ngai was found guilty on the offence of providing public live performance of an indecent nature and was sentenced to 6 months imprisonment suspended for 2 years, and fined $15,000. He was additionally ordered to pay $5,000 costs.

2. The 2nd and 3rd appellants WU Siu-fong and CHEE Yuk-chuen were both found guilty of managing a public live performance of an indecent nature and each was sentenced to 6 months imprisonment suspended for 2 years, and in addition ordered to pay a fine of $15,000 and costs of $5,000 each.

3. The 8th and 9th defendants were found guilty of taking part in a public live performance of an indecent nature and each of them was also sentenced to 6 months imprisonment suspended for 2 years and ordered to pay a fine of $15,000 and costs of $5,000. These 2 defendants have not appealed.

4. The 1st, 2nd and 3rd defendants now appeal against their convictions only.

5. The Paul Sing Association Ltd. (incorrectly spelt as "The Paul Shing Association Ltd.” in the particulars of the charges) was incorporated as a company limited by guarantee on 30th August 1984with the 1st and 2nd appellants as 2 of the seven subscribers to the Memorandum and Articles of Association of the Company. Clause 54 of the Articles of Association of the company provides that NG Lok-lai shall be the first Secretary of the Association and shall continue to hold that office until the 1st Annual General meeting of the company. The Articles of Association further provide that membership of the Association shall be accorded to candidates proposed by existing members after their applications in writing are approved by the Executive Committee, and upon payment of an entrance fee of $10 and an annual subscription of $10.

6. The affairs of the association were to be managed by an Executive Committee consisting of not less than four members nor more than 6 members, 3 of whom were to be the Chairman, the Hon. Secretary and the Hon. Treasurer. The association occupied the ground and first floors of No. 3 Marsh Road, Wan Chai, the ground floor being the reception area with a staircase leading to the first floor which housed the bar, the office and the exhibition areas. Admission to the Association's premises was stated to be for members only. On the 15th October last year, two police officers posing as customers went to the Association's premises and upon arrival were asked whether they were there to see a show and if they were members. When they replied that they were not members, one of the police officers was handed an application form for membership, after completion of which he was given a membership card and he and his companion were admitted into the premises upon payment of a fee of $10, the other officer being admitted as a guest of the former. On the following day, two other pairs of police officers were admitted into the premises the same way. On the 17th October, another 2 pairs of police officers went to the Association premises and were admitted into the exhibition area and two of these officers identified the 3rd appellant as the person who handed them the application forms for membership. He was also identified as the one who received their membership fees and who handed the police officers their membership cards. The police officers went up to the exhibition area, asked if they wanted food and drink, and they then settled down to watch acts described in some detail by them, which were not only indecent, and I agree with the learned Magistrate in his findings, but were extremely obscene, revolting and disgusting. These acts were those performed by both the 8th and 9th defendants in turn. In the audience were 10 other adults. The same evening a party of police officers from the Wanchai Police station raided the premises, in the course of which the 1st appellant was found on the ground floor of the premises sitting on a chair near the entrance, but it appeared he was not doing anything else. The 3^rd appellant was sitting behind the counter on the same floor, whilst the 2nd appellant was found sitting behind a counter on the first floor where the performances were held. The 2nd appellant stated that she was the cashier there, and upon her arrest, a search of her person revealed 2 keys, one which fitted the metal gate to the ground floor whilst the other one fitted the door of an office on the 1st floor of the Association's premises. A search of the office produced various documents and photographs and boxes of name cards respectively in the names of the 1st and 2nd appellants. The 1st appellant was also arrested and searched and in his pocket was found a key which fitted the metal gate on the ground floor. The 3rd appellant stated under caution when arrested that evening that he was a recorder registering names of customers who entered the premises and issuing membership cards. However, on the 28th October 1986, he went to the Wanchai Police Station of his mm accord and there admitted to P.C. 1936.that he was the person in charge of the Association on 17th October, 1986 but because he was then very frightened he did not dare to make such admission. In the interview which followed, this appellant reiterated that he was the person in charge and that he was willing to provide the police with particulars. He was then questioned, among others, as to his position in the Association. He stated that he began working at the Paul Sing Association on 18th September 1986 as a Registrar but he was subsequently, upon the arrest of the previous manager and upon that man's conviction, promoted to be Manager of the Association. He qualified this statement however by saying that he was only the nominal manager. His duties in the Association remained those of a Registrar, responsible for the ground floor and the 1st floor of the Association's premises. He had no authority to employ or discharge employees of the Association, when asked whether he had the right to make a decision when something special happened he replied to the effect that he was the one to do that and to take charge. He admitted full knowledge of what the performances in the Association consisted of and considered that they were obscene. The question as to whether the Association was a sham one was raised at the trial, but the learned Magistrate found that the police constables were not members of the Association. None of the appellants gave evidence, and all the Counsel for the appellants had not sought to argue this point and therefore it is necessary for me to deal with it. The manner in which the various police officers were granted so-called membership of the Association does not alter their status as members of the public. In my opinion, the admission of so-called members into the Association was a mere sham and the Association was operating under the guise of a company limited by guarantee. The performances by the 8th and 9th defendants that evening were of an indecent nature and this has been conceded by Mr. Mayne who represents the appellants in this appeal. In convicting the 1st appellant of providing the performance, the learned Magistrate relied on 2 matters adduced in evidence: (1) that he was sitting at the entrance to the Association's premises at the time of the raid; and (2) that as he was a subscriber to the Memorandum and Articles of Association of the company, and he drew from these "the inevitable inferences" that the 1st appellant was the most senior person present at the Association that night and therefore convicted him of the offence charged. In his submissions on the first ground of appeal in relation to the 1st defendant's conviction of the charge of providing live performance of an indecent nature. Mr. Mayne states that the subscriber to the Memorandum and Articles of Association does not give him any authority in relation to the management of the affairs of the Association nor was there any evidence to show that the 1st appellant was on the date in question the Hon. Secretary of the Association. It is correct that the only advantage, if it can be so called of a subscriber, is that he becomes automatically a member of the Association upon its incorporation and nothing else. The Magistrate did not refer to the appointment of the 1st appellant as Secretary of Association upon its incorporation but even if it were held that in the absence of any evidence to the contrary, the 1st appellant continued to be Secretary of the Association, the mere fact that he was found to be the most senior person (if correct) present in the Association's premises that evening, does not in my view entitle the Magistrate to draw the inference that he was the person providing the performances. There was no evidence to indicate that he had even impliedly agreed to the 8th and 9th defendants, performing in the Association's premises nor was there any evidence to show that he had any knowledge that they were going to offend against Section 12A of the Summary Offences Ordinance. In R. v. LEE Chun-cheung, C.A. 1063/86, a case which is almost at all fours with the present case, the Chief Justice stated:

"I do not think the Magistrate was right in his interpretation of the effect of Section 12A of the Summary Offences Ordinance. I do not accept that it is enough for the Crown merely to show that the 1st defendant was managing the premises in which an indecent live performance had taken place. In my view, the wording of the section is such that the prosecution must have established that the defendant knew that the performance of an indecent nature, though not necessary all the details of it was going to toke place. "

7. The Magistrate in that case had expressed his opinion on that section as follows:-

“On terms of the legislation creating the offence it is not a defence for a manager present on the performances (albeit downstairs and not upstairs) to say: 'I did not know what was going on upstairs.'

On the wording of the statement creating the offence the prosecution need only prove that the defendant was the manager of the premises at the material time and that a public live performance of an indecent nature took place at the time, once these factors have been proved by the prosecution in terms of the offence, strict liability flows”. 

8. Evidence of the 1st appellant's presence on the premises and his membership of the Association, and even if he was still acting in the capacity of Secretary of the Association, are not in my view sufficient for an inference to be drawn that he had knowledge that an exhibition of an indecent nature was being performed that evening, nor indeed prove that he provided the exhibition.

9. Turning to the 2nd and 3rd appellants the submission is made that the Magistrate was not entitled to assume that because both the appellants were managing the Association, they were also managing the performances since there was no evidence as to who told the 8th and 9th defendants to perform in this way and as to ~ho could hire them or dismiss them.

10. It is clear from the statement made by the 3rd appellant that he was well aware of what was going on in the premises and in particular that he was the one who made the decisions and took charge if something special happened to the Association. In fact, when he was asked in the course of that interview that if he considered the performances to be obscene why he did not stop them, and his reply was: "I did not know it was so serious because it was written a private club". The learned Magistrate was entitled to convict the 3rd appellant as charged on the evidence in his cautioned statement, his presence at the Association, and his activities on the ground floor of the Association premises, on the night in question.

11. In his submissions regarding the 2nd appellant, who admitted being a cashier in the Association, Mr. Mayne relies on what was said obiter in R. v. Chan Man, by Huggins J.A. One of the appellants in that case was also the cashier of the club where an exhibition of an indecent nature was found to have taken place and the appellant was convicted of the offence of exposing to the public view a floor show of an indecent nature contrary to Section 3 of the Indecent Exhibitions Ordinance. In the course of his judgment, Huggins J.A. stated:-

"I myself have considerable doubts whether it can properly be said that they were assisting in the management of a floor show and were therefore acting as aiders and abetters. It seems to me there is a very great difference between the man who has control over the floor show and in saying whether it shall go on or not, and what form it shall take, and the person who sells the cards at the door or chocolates in the aisles. The question, should it ever arise again, would be fit for the consideration of a higher court."

12. On the other side, Crown Counsel sought to distinguish this case from that of Leung Kwan Fu & others. v. R. in that the portion of the judgment. cited was only obiter dicta, and that in Leung Kwan Fu, 2 of the appellants who were the manager and the floor captain respectively of the Hong Kong Artists Club, were held to be rightly convicted of the charge of keeping a disorderly house contrary to Common Law. In that case, some members of the police force visited the club premises and saw performances of indecent shows and at a subsequent raid on the premises the Chairman of the Club which was registered as a Society under the Societies Ordinance, was charged and convicted for keeping a disorderly house and the Manager and headwaiter were also charged and convicted of the same offence. It was held in that appeal, that having regard to Section 89 of the Criminal Procedure Ordinance, once the character of a place has been established to be a disorderly house, any person who participated in its active management must be regarded as its keeper even if he were a salaried employee. In this case the learned Magistrate referred in his Statement of Findings to the presence of the 2nd appellant behind the counter on the 1st floor of the Association’s premises at the time of the raid and stated: "It would be naive to think that the 2nd defendant was sitting behind the cashier's counter as a wall flower. I found that the only inference I could draw is that she was managing with the 3rd defendant". There was admissible evidence to draw the inference that is from the position when she sat behind the counter on the 1st floor that she knew performances, of an indecent nature were taking place that evening.

13. The 2nd appellant at the time of the raid, among all the defendants who were arrested, was the only, and the sole possessor of a key leading to the office of the Association which was situated on the 1st floor of the Association's premises. Inside the office as I previously stated were found various documents and the name cards bearing both her name and that of the 1st defendant.

14. The documents comprise a Tenancy Agreement dated 28th April, 1984 relating to the Association's premises and was made between Ng Lok Lai and Wu Siu Fong as joint lessees for a term of 2 years from 15th April 1984. The Tenancy Agreement is expressed to be signed both by the 1st appellant and by Wu Siu Fong, and the latter’s Identity Card No., as shown in the Tenancy Agreement under the name of Wu Siu Fong, is 258522(5). This matches the number of the 2nd appellant's identity card as indicated in the charge sheet against her name. I do not think it needs further evidence for an inference to be drawn that the person Wu Siu Fong named in the Tenancy Agreement is the same person as the 2nd appellant. Included in abovementioned documents is a notice of insurance relating to the employment of staff at the Association’s premises in her name and signed by her, with the subscription as Chairman. Additionally, a Certificate of Insurance from 16th April 1984 to 15th April 1989 relating to staff of the Association and also in her name (Workmen's Compensation Policy) was also found in the office. An insurance policy covering the furniture, fixtures and fittings of the Paul Sing Association Ltd. made out in her name, and name cards in the name of Wu Siu Fong showing her status as manager of the Association were also found. All this evidence was not challenged. It was indeed open to the Magistrate to draw the necessary inferences from this evidence to assign to the 2nd appellant a much more important post than that of a cashier in the Association, that is, that on the evening in question she was the person who was in actual charge of the Association's affairs. On the totality of this evidence, but for different reasons, I am of the opinion that the 2nd appellant was rightly convicted of the offence in the B charge, i.e. of managing a live performance for indecent nature.

15. In the result, the appeal by the 1st appellant is allowed and his convict ion quashed. The appeals of the 2nd and 3rd appellants against conviction are dismissed.

16. Complaint has been made by both counsel against the intemperate use of language by the magistrate in his Statement of Findings when referring to Mr. Lok's, who was then Counsel for the appellants at the trial, submissions made to him, as follows:-

"I found that Mr. Lok’s submissions were spurious and completely nonsensical, and made no sense of whether it was head or tails, and by no stretch of imagination one could say as Mr. Lok said that the performance was unique and acrobatic, I shudder to think( what the Olympic Committee would say. "

17. A perusal of the record in which a note of Mr. Lok's submission appear does not, in my view, justify these comments by the magistrate and aside from the reference to the uniqueness and acrobatic nature of the performances, it has been remarked by Counsel that the submissions were such that they would have been of assistance to the magistrate. The aspersions cast on Counsel are, in my view, unjustified aud unfair and their appearance in the Stater.1ent of Findings are to be deprecated. It might be of some consolation to the magistrate that even Leonard, J. (as he then was) in the case of Leung Kwan Fu v. R. had referred to the performers in the Hong Kong Artists Club as "loose-limbed ladies which gave the disorderly house its character".