THE QUEEN v. HUNG SAN

IN THE SUPREME COURT OF HONG KONG

(APELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 883 of 1989

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BETWEEN

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JUDGMENT

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1. The appellant was convicted by Mr. Crawshaw of assisting in the managment of a vice establishment contrary to Section 139(b) of the Crimes Ordinance Cap. 200.

2. On the 19th of July 1989 Sergeant 21139 and PC23769 visited the California Sauna Bath at the 9th floor 81 Nathan Road. They were taken by a staff member to a room where they were massaged by hostesses Nos.1 and 68. Some time later they were asked if they wanted to be masturbated for a fee of $100.00. They agreed and the service was provided. They paid at the desk, $234 for the three hour massage and $100 for the extra service. The appellant was not seen to be present on this occasion.

3. On the 21st of July 1989, a party of five police officers including Sergeant 21139 and PC23769 went to the same premises. They were all massaged by hostesses who after a time made unsolicited offers to masturbate them. They all accepted and masturbation was performed. Three of the officers paid the defendant, who was at the cashiers desk, for the massage and a further $100 for what the defendant described as "hostess service fee". The defendant was paid with marked money, one of the $100 notes being subsequently recovered by the police from the locker of one of the hostesses. The other two officers paid their hostesses the $100 service fee and paid the defendant for the massage.

4. A police party raided the premises 15 to 20 minutes after the five police officers had left. It was conceded that not all the marked money was recovered. It was suggested for the appellant that this showed the prosecution witnesses to be unreliable. Given the lapse of time from when they left the premises to the raid, I do not agree. The magistrate was satisfied that the police officers were honest witnesses who had given him a correct account as to the visits to the premises. There are no grounds to interfere with that fining.

5. The principle ground of appeal relates to the definition of a vice establishment.

6. Section 139 of the Crimes Ordinance Cap. 200 makes it an offence to assist in the management of any premises vessel or place kept as a vice establishment.

7. Section 117(3) provides that premises vessel or place shall not be treated as a vice establishment unless they are used wholly or mainly for or in connexion with the organising or arranging of prostitution.

8. It is conceded before me that if the other elements of the charge were found proved there was sufficient evidence coming from the two visits to satisfy the element of "kept". It is argued however that the evidence does not justify a finding that the premises were used "wholly or mainly" as required by Section 117(3).

9. The premises are licensed as a massage parlour and comprise 10 rooms with 23 beds. The 15 or so hostesses were registered under the ordinance. There were at the time of the raid 10 or so other customers in the premises. None of these were called to give evidence.

10. Mr. Hampton for the appellants argues that on a "space and population basis" the premises could not be said to be operating wholly or mainly for the purposes of prostitution, the percentage of customers and hostesses involved in sexual activity being less than 50% of those present at the time of the raid.

11. The magistrate took a less mathematical approach to the evidence, which was that the police officers who visited the premises of the 19th and the 21st of July were all offered masturbation as part of the service. He had regard to the fact that the establishment offered legitmate massage but was of the view that one of the main purposes of the business was also to offer masturbation. Given the evidence he had before him I am not prepared to say he was wrong.

12. The appellant did not give evidence or call witnesses. The prosecution case was that he was the cashier on the night of the 21st of 1989. He collected payment from the officers including the hostess service of $100 from three of them. One of the marked notes was found in a hostesses locker. The magistrate referred in his Statement of Findings to the appellant collecting $100 for "special service". The evidence is that he said "hostess service". I do not consider the magistrate's error in this regard to be of significance. On the evidence he had fore him he was perfectly entitled to draw the inference that the appellant was aware of what was going on.

13. The appeal is dismissed.