Case Detail

CACC000776/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 776 OF 1973

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BETWEEN
	LAI HUNG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.

Date of Judgment: 24th October 1973.

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JUDGMENT

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1. This is an application to call fresh evidence on appeal. The charge was one of keeping a brothel and the Appellant was convicted on the evidence of police witnesses who went to the premises. The defence was that the Appellant was not the person having the apparent management of the premises at the time the police carried out their raid. It was alleged by the defence that one Suen was the proprietor of the establishment. No other name was mentioned in the course of the trial. It was suggested by the Appellant that he was merely a cashier and he denied that he met the persons who came to the premises and conducted them to rooms and took girls to them. It is now sought to call as a witness a man called SIU Chung-wah, who is said to have been in the premises at the time although the police evidence before the learned magistrate was that no person other than the Appellant was present.

2. The first observation I must make is that notice was served this morning stating that it was desired to call further evidence. Notice was given orally to counsel on Friday of last week. There is no affidavit of any kind before the Court. It is quite clear that this Court cannot act without an affidavit in such a matter as this, and that of itself, in my view, is sufficient answer to this application, but it must further be said that the reason given is by no means sufficiently stated in the Notice or satisfactory. What is contended is that the witness, like the Appellant, had been engaged at the premises for only three days at the time of the raid; that the proposed witness left his employment after the police investigation and that the Appellant had been unable to trace him. No indication is given of any attempts made to trace him and, as I have indicated, there is no mention of this man by name in the course of the trial. No application was made to the learned magistrate in relation to him and, so far as I know, no request was made to the prosecution to assist in tracing a witness whom it was desired to call. Whether or not the evidence could be sufficient to cause this Court to say that there was doubt about the verdict, it is not really necessary for me to decide. It would, in my view, need very strong evidence and be an exceptional case where the court would allow the adducing of fresh evidence on an appeal and I am satisfied that this is not such a case.

3. The application must be dismissed.

24th October 1973.

Representation:

CACC000776A/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 776 OF 1973

-----------------

BETWEEN
	LAI HUNG	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Huggins, J.

Date of Judgment: 24th October 1973.

-----------------

JUDGMENT

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1. This is an appeal against a convection for keeping a brothel, under s.12 of the Protection of Women and Juveniles Ordinance. The Appellant was jointly charged with two girls, they being charged with aiding and abetting the keeping of a brothel.

2. The prosecution arose as a result of a police raid. Two male police officers went to the suspected premises and their evidence was that they were greeted by the Appellant at the entrance of the premises; that it was he who asked their requirements, enquired whether they knew a particular girl that they wanted, offered to find a beautiful girl to make love to them and subsequently conducted them to rooms and brought girls to them. When the premises were subsequently searched he was found to have in his custody the money which had been paid by the police officers. In addition, when after some time a woman police inspector came on the scene, he is said expressly to have admitted that he was the person who was in charge.

3. The grounds of appeal are now stated to be that the conviction was against the weight of evidence, that there was no sufficient evidence upon which it could be held that the Appellant was the keeper of the premises and, thirdly, in all respects that there was no sufficient evidence upon which to found the conviction. In respect of this third ground a particular aspect of the matter was argued, that there was no sufficient evidence that this was a brothel.

4. It seems to me that the evidence which was adduced by the prosecution, if believed, was ample upon which to found a conviction. There was evidence that these were not the only customers who had been to the premises; there was the evidence that the Appellant asked whether the officers wanted any particular girl, which clearly indicates that this was not the one and only occasion on which these premises were used for the purposes of a brothel. The definition of a "keeper" in the Ordinance is that it "includes any person having or appearing to have the management or control of the premises". The admission that he had control was itself sufficient. The evidence of the police was that none of the police officers saw anybody else in these premises. Inspector Wong, when she arrived, made no secret of her arrival and announced in a loud voice that she was going to search the premises. It is said that she did not search the whole of the premises but it is a matter for comment at least that nobody else put in an appearance at that time.

5. The only real ground which needs attention is whether it can be fairly said that the conviction was against the weight of the evidence. The Appellant's case was that he was merely a cashier. He said that he did not meet the two police officers, that he did not conduct them to a room and did not bring girls to them: he said that there were other persons employed for these purposes. Indeed, the case which was put forward by the girls was that this was not a brothel because all that was intended was that they should act as hostesses and keep customers company, there being no act of lewdness within the terms of the agreement. The learned magistrate was obviously fully satisfied on the evidence of the two police officers that the two girls undressed themselves and did in fact invelve themselves in acts of lewdness. It is contended that the premises were rather dark and that therefore the identification of the Appellant by all three police officers should be regarded with some sceptism. It is fairly pointed out that the mistake, if any was made, was a mistake between a man of 61 (who is the Appellant) and a boy of some 18 years, which would be a very difficult mistake to make, particularly in view of the fact that the voice would be different even if it were in pitch darkness: but the witnesses did not accept that it was anything approaching pitch dark and they were satisfied that they could dentify the Appellant. Nobody else, as I said, put in an appearance, so it is difficult to see for whom they could have mistaken the Appellant.

6. Counsel drew attention to the fact that there was an apparent discrepancy between the evidence of the male police officers and Inspector Wong as to the state of undress of the two girls. I think the learned magistrate did not attach any weight to this apparent discrepancy - and, I think, with justification, because, as I have already said, Inspector Wong made no secret of her arrival and it is to be anticipated that as soon as the girls were aware that the police were entering they would not wait unduly long before attempting to dress and by the time the inspector reached the second room it is not altogether surprising that the girl in that room was already approaching full dress. It is, again, a matter of fair comment that these rooms were furnished in a way which, perhaps, is not customary for this sort of establishment, there being no bed or couch, but that is not in itself, in my view, a sufficient ground for casting any doubts upon the correctness of the decision.

7. In all the circumstances I am unable to say that the conviction was against the weight of the evidence and this appeal must be dismissed.

24th October 1973

Representation:

LAI HUNG v. THE QUEEN

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