THE QUEEN v. KUNG OI HO AND OTHERS

BETWEEN

__________

JUDGMENT

__________

Yang, J.A.:

1. This is a magisterial appeal reserved for the Court of Appeal by Addison J. in pursuance of S.118(d) of the Magistrates Ordinance, Cap. 227.

2. The charge against each of the Appellants is one of assisting in the management of a massage establishment contrary to S.4(1) of the Massage Establishment Ordinance.

3. On the 10th May 1985 PW1, a police constable acting as a police agent, arrived at the Hoi Shing Steam Finger Care premises on the 4th floor of 300 Nathan Road, Block E. There he met D2 and asked if D2 could provide a massage service. In reply D2 said he was operating an escort service at that time but he could arrange a girl for him. D2 also asked PW1 if he had a familiar girl, and on receiving a negative reply introduced D3 to him, saying, "Is she suitable for massaging you?" PW1 said yes and was asked by D2 to pay him $100 as an "arrangement fee". PW1 paid D2. D2 then asked D3 to take PW1 to the Sun Hoi Bun Villa on the 5th floor of the same building.

4. When PW1, accompanied by D3, arrived at the Sun Hoi Bun Villa, he saw D1. D3 asked D1, "Which room are you going to give us this time?" D1 then took the couple to a room saying that she would let the room to PW1 for one hour.

5. Whilst in the room, PW1 took a bath and D3, according to PW1's evidence, "tapped me which is a form of massage".

6. When the police party arrived at the Sun Hoi Bun Villa, D1 admitted to being in charge of the premises.

7. For D1, it was submitted (a) that there was no evidence to show that Sun Hoi Bun Villa was a massage establishment, (b) that there was no evidence to show that D1 knew Sun Hoi Bun Villa was a massage establishment and (c) that there was no evidence connecting the Hoi Shing Steam Finger Care on the 4th floor with Sun Hoi Bun Villa on the 5th floor. D2 repeated D1's first ground of appeal and further argued that there was no evidence that he had assisted in the management of a massage establishment. D3's grounds of appeal are similar to D1's first ground and third ground and also D2's second ground.

8. By S.2 of the Massage Establishment Ordinance Cap. 266, "massage establishment" means -

"any place used or intended to be used or represented as being used for the reception or treatment of persons requiring massage or other similar service or treatment."

9. Having convicted the Appellants, the trial magistrate on reflection came to the view that he had been wrong in convicting.the Appellants. In his Statements of Findings dated 7th August 1985 and 7th January 1986 respectivey, he found that, as to D1, it was not possible to conclude beyond reasonable doubt that she had formed the intention to assist in the management of a massage establishment, nor was there any evidence that she knew she was assisting in the management of a massage establishment. As to D2, the magistrate said that there was nothing to rebut D2's argument that he was merely operating an escort agency and that he merely introduced D3 to PWI. As regards D3 the magistrate said that the Crown had not proved that the Sun Hoi Bun Villa was a massage establishment.

10. In our view D1's appeal must succeed. The evidence against her was scanty. As against her, there was no evidence that the Sun Hoi Bun Villa was a massage establishment and the limited role she played was insufficient to show that she was assisting in the management of a massage establishment, even if the Sun Hoi Bun Villa were such.

11. D2 by words as well as conduct represented to PW1 that Sun Hoi Bun Villa was used for treatment of persons requiring massage. In response to PW1's request for massage service, D2 arranged for D3 to provide it at the Sun Hoi Bun Villa: he instructed D3 to take PW1 to the Sun Hoi Bun Villa, thereby representing that the Sun Hoi Bun Villa was being used for massage treatment. There was, as against him, evidence that the Sun Hoi Bun Villa was a massage establishment.

12. In our view, the role he played amounted to assistance in the management of the establishment. His appeal therefore fails.

13. As to D3, the words uttered by D2 to PW1 at the Hoi Shing Steam Finger Care in the presence of D3 and the instructions given by D2 to her to take PW1 to the Sun Hoi Bun Villa, all of which she tacitly accepted without demur, coupled with what she herself said to D1 and with the massage she performed, amounted to clear evidence that she knowingly assisted in the management of a massage establishment. Her appeal therefore also fails.

14. As regards D1, therefore, the appeal is allowed, the conviction is quashed and the sentence set aside.