HKSAR v. MA PIK KI

HCMA950/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.950 OF 2003

(On Appeal From TWCC 1771 Of 2003)

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J U D G M E N T

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1. This is an appeal against conviction only.

2. The appellant was convicted after trial of an offence of assisting in the management of premises kept as a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap.200. That provision is as follows :

"(1) A person who on any occasion-

...

(b) manages or assists in the management, or is otherwise in charge or control, of any premises, vessel or place kept as a vice establishment,

....

shall be guilty of an offence." (emphasis added)

3. The facts of the case as found by the magistrate were that two undercover police officers, PW1 and PW2, who went to the relevant sauna premises on the charged day were offered various sexual services by two female masseurs, and that the appellant had arranged those services and so assisted in the management of the premises as a vice establishment.

4. The sole ground of appeal put forward by Mr Lok, SC on behalf of the appellant is that the magistrate in arriving at his findings did not take into account whether the premises in question were being "kept" as a vice establishment as required to be proven by section 139(1)(b).

5. The magistrate's findings as to the nature of the premises were, as contained in his Statement of Findings :

"11. The Appellant offered sexual service to PC 58804 by saying to him that the Sauna had recruited a group of new girls who would provide sexual service with Jordan feel at a cost of $480.

12. Ms Chung Ngan-fong offered sexual service to PC 54541 by asking him if he wanted to extend the normal 2 hour service to 3 hour service which included masturbation.

13. In the Sauna at least one supervisor, the Appellant, and one masseur, Ms Chung Ngan-fong, offered sexual services to customers. Taking all the evidence before me into consideration I was satisfied that the Sauna was mainly used as a vice establishment."

6. The magistrate's reference to the main user of the premises apparently related to the necessity under section 117(3) of the Ordinance to prove that the premises were used wholly or mainly for the purposes of prostitution, before they can be found to be a vice establishment.

7. For whatever reason, section 139(1)(b) requires proof not only that the premises were a vice establishment but also that they were being kept as such.

8. In R. v. Wong Chi Hung [1982] HKLR 361, McMullin VP said that there were two distinct elements in respect of an offence pursuant to section 139(b) (as it then was). The first was that the premises were kept as a vice establishment, the second was that the defendant be proven to be managing or assisting in managing, etc. the premises. In relation to the first element, he said :

" The first of those elements requires evidence sufficient to show a pattern of main user which will usually involve some degree of persistence in time beyond what would be supplied by evidence of a simple transaction; ..."

9. Following that case, other authorities emphasized that an element of the offence created by section 139(1)(b) was that the premises be "kept" as a vice establishment, see : R. v. Chong Ming Chin [1984] HKC 294, R. Ho Chi Fai [1985] HKC 242, R. Cheong Luen Shing [1994] 3 HKC 451 and R. v. Li Kin Cheong [1996] 3 HKC 422.

10. I must say that if the element that the premises be "kept" as a vice establishment is included in section 139(1)(b) to distinguish other premises where an isolated or single occurrence or transaction relating to vice takes place, then that would in any event seem to me to be accomplished by the provisions of section 117(3) which are as follows :

" Premises, vessel or any place shall not be treated as a vice establishment for the purposes of this Part unless-

(a) the premises, vessel or place are or is used wholly or mainly by 2 or more persons for the purposes of prostitution; or

(b) the premises, vessel or place are or is used wholly or mainly for or in connexion with the organizing or arranging of prostitution."

11. That section, within its terms, already connotes a purposeful user of the premises as a vice establishment. It is difficult to see how, if the use of the premises is determined to be wholly or mainly for the purposes of prostitution or for the organizing or arranging of prostitution, that the premises could not be kept as a vice establishment.

12. But having said that, the authorities which I have cited are clear and in the case of Wong Chi Hung binding.

13. From those authorities one element of the offence under section 139(1)(b) is that the premises be found to be a vice establishment. A separate element of the offence is that they be kept as such.

14. The magistrate, both in his Statement of Findings and in his Reasons for Verdict at the time of conviction, appeared to have addressed the former but not the latter matter.

15. Miss Lau for the respondent argues that event though there was no express mention by the magistrate of the required element that the premises be "kept" as a vice establishment that it should be nevertheless accepted that he, as a professional jurist, could be assumed to have properly directed himself in this regard.

16. It is true that a judge or magistrate sitting alone is not obliged to record in his Reasons for Verdict or his Statement of Findings every legal principle present in his mind and upon which he directed himself in the course of arriving at his findings in a particular case. But there must at least be present in his stated findings enough to demonstrate that each element of the offence has been considered by him, where proof of that element is in issue in the case, and the reasons why it has been found to have been established or not established.

17. There is nothing in the magistrate's Statement of Findings to show that he specifically addressed the matter of whether the premises in question were kept as a vice establishment and, in my judgment, on the law as it stands, he was required to. But that is not the end of the matter.

18. The magistrate accepted PW1 and PW2 as being reliable witnesses. He said, regarding their evidence :

".... I accepted their evidence that Ah Hung masturbated PC 58804 and Ms Chung Ngan-fong masturbated PC 54541.

10. The Appellant offered sexual service to PC 58804 by saying to him that the Sauna had recruited a group of new girls who would provide sexual service with Jordan feel at a cost of $480.

11. Ms Chung Ngan-fong offered sexual service to PC 54541 by asking him if he wanted to extend the normal 2 hour service to 3 hour service which included masturbation.

....

13. The Appellant asked PC 58804 and PC 54541 if they had familiar girls, if they wanted to try 'aroma massage'. The Appellant also told PC 58804 what aroma massage included and the price. ...."

19. Accordingly, there was evidence before the magistrate which he had accepted and which established that the premises (i.e. the sauna) had recruited a group of new girls who would provide sexual services at a stated price of $480, and that the normal two-hour massage service operated in conjunction with an extended service which included masturbation.

20. In my judgment, if the magistrate had addressed the issue as to whether the premises were being kept as a vice establishment, he would have inevitably concluded that they were. That is because of the fact that the extended services available were obviously part of the then existing range of services available to customers of the premises as part of its normal business operation at the relevant time. The fact that the premises had "recruited" girls specifically to provide such services was clear and compelling evidence that the business of the premises was to provide such services and that this had been arranged prior to the occasion of the two police witnesses going to the premises.

21. On the basis of that evidence, the magistrate must have found that when the officers attended the premises they were already kept as a vice establishment.

22. I might add in this regard that while it may be that frequently evidence called to prove premises were kept as a vice establishment would involve a series of undercover visits to the premises by the police to establish their habitual usage, it is quite true also, as said in Wong Chi hung :

".... it might also in a given case be established by proof of what has been observed on a single occasion where the circumstances are such as to yield no other conclusion .... but that the premises had been so used for a considerable period." (per McMullin VP)

23. In my judgment, the magistrate's error in omitting to expressly consider the element of the premises being "kept" as a vice establishment has not resulted in unfairness or injustice to the appellant. The magistrate would undoubtedly have entered the same verdict had he addressed the matter : HKSAR v. Ching Kwok Yin [2000] 3 HKCFAR 387.

24. Accordingly, the appeal against conviction is dismissed.