The University of Hong Kong Faculty of Law

4/F KK Leung Building, Pokfulam Road, Hong Kong

25 September 2006
Ms Elaine Lam
Zi Teng
Hong Kong
Dear Elaine:

Re: Security Bureau’s supplementary information on police-undercover operations against vice activities

Thank you for informing me of the Security Bureau’s recent response to our Centre’s submission.

It appears that the Security Bureau agrees with our opinion that, as a matter of law, it is unnecessary for police officers to receive sexual services in order to prove any of the offences in Part XII of the Crimes Ordinance (Cap 200). Instead, it bases its position on an operational need to allow officers the flexibility to engage in sexual activities, short of vaginal and oral intercourse, “to collect sufficient evidence against the persons concerned”.

While I agree that there may be circumstances in which it would be necessary for an undercover officer to receive sexual services, however, I would draw the line at circumstances where the officer’s refusal of such services would likely lead to immediate physical harm. Essentially, what is wrong with the existing policy is that it endorses an exploitative practice that confers a personal advantage on the officer, whether he desires it or not. Furthermore, given the covert nature of such operations, there are insufficient safeguards to prevent the possible abuse of such practices by individual officers. There are also health and safety implications in having this permissive practice.

Such a practice raises an important professional and ethical issue for the police force as a whole. There needs to be a public debate on whether the police on ethical grounds should adopt a general policy that its officers will not receive sexual services in the execution of their duty. The only possible exception might be if the refusal of such services in the circumstances would likely lead to the immediate physical injury of a person.

It is fallacious to believe that obtaining direct and personal evidence of the receipt of sexual services is necessary to build a strong prosecutorial case for offences under Part XII.

As is seen in the three enclosed cases from England, it is possible to build a strong circumstantial case against the proprietors without police officers receiving sexual services. Such evidence would consist of

  1. observations of the premises both from within and without for signs of a vice operation;
  2. advertisement used suggesting the availability of prostitution services at the premises;
  3. communications for the sale and purchase of sex at the premises;
  4. attempted sexual contact between undercover agent and subject;
  5. observations and physical evidence of sexual activities found within premises as a result of the execution of search warrants.

I accept that to generate a strong inference of the proprietor’s knowledge in the sexual activities, the evidence will need to show that the activities were prevalent in the premises and, in some cases, this may require that observations be made of the premises for a period of time.

There is a US law student on exchange at HKU this term who is interested in doing pro bono work on this topic. We may try to explore what policies police forces around the world have adopted in this area. I will keep you informed if I have any further research.

Yours truly,
Simon N.M. Young
Associate Professor
Deputy Director, Centre for Comparative and Public Law

Enclosure

*663 Kelly v. Purvis
          [1983] 2 W.L.R. 299
          Divisional Court
          DC
          Ackner L.J. and Webster J.
          1982 Nov. 11, 12; Dec. 2
          Crime--Sexual offences--Brothel, assisting in
          management of--Massage parlour--Masseuses
          providing sexual services not amounting to full
          sexual intercourse--Whether massage parlour
          "brothel"--Sexual Offences Act 1956 (4 & 5 Eliz. 2,
          c. 69), s. 33
          [FN1] The defendant, who assisted in the
          management of a licensed massage parlour, was
          charged with assisting in the management of a
          brothel, contrary to section 33 of the Sexual
          Offences Act 1956. At her trial before the
          magistrate, the prosecutor established prima facie
          that during the massage extra services, involving
          masturbation of the client, were offered by the
          masseuse for additional fees, paid directly to that
          masseuse, and not forming part of the takings of the
          establishment. The defendant was fully aware of the
          sexual services being provided and on occasions
          performed them herself. At the close of the case for
          the prosecution it was submitted on behalf of the
          defendant that the offence alleged had not been
          established. The magistrate ruled that although he
          was satisfied that the masseuses were common
          prostitutes, he was not satisfied that a prima facie
          case had been made out that the premises were a
          brothel since there was no evidence that full sexual
          intercourse was provided there. Accordingly, he
          dismissed the information.
          FN1 Sexual Offences Act 1956, s. 33: see post, p.
          668E.
          On appeal by the prosecutor:-
          Held, allowing the appeal, that premises where
          more than one woman offered herself as a
          participant in physical acts of indecency for the
          sexual gratification of men constituted a brothel for
          the purposes of section 33 of the Sexual Offences
          Act 1956; that, accordingly, on a charge of assisting
          in the management of a brothel it was not essential
          to prove that normal sexual intercourse was
          provided at the premises (post, p. 671A-B).
          Reg. v. Justices of Parts of Holland, Lincolnshire
          (1882) 46 J.P. 312, D.C. and Winter v. Woolfe
          [1931] 1 K.B. 549, D.C. considered.
          Per curiam. To constitute a brothel, it is not
          essential to show that premises are in fact used for
          the purpose of prostitution which involves payment
          for services rendered. A brothel is also constituted
          where the women (for there must be more than one
          woman) do not charge for sexual intercourse (post,
          pp. 669G - 670A).
          The following cases are referred to in the
          judgment:
          Caldwell v. Leech (1913) 109 L.T. 188, D.C..
          Durose v. Wilson (1907) 96 L.T. 645, D.C..
          Gorman v. Standen [1964] 1 Q.B. 294; [1963] 3
          W.L.R. 917; [1963] 3 All E.R. 627, D.C..
          Reg. v. Justices of Parts of Holland, Lincolnshire
          (1882) 46 J.P. 312, D.C..
          Reg. v. Webb [1964] 1 Q.B. 357; [1963] 3 W.L.R.
          638; [1963] 3 All E.R. 177, C.C.A..
          *664 Rex v. De Munck [1918] 1 K.B. 635, C.C.A..
          Singleton v. Ellison [1895] 1 Q.B. 607, D.C..
          Winter v. Woolfe [1931] 1 K.B. 549, D.C..
          The following additional cases were cited in
          argument:
          Abbott v. Smith (Note) [1965] 2 Q.B. 662; [1965]
          3 W.L.R. 362; [1964] 3 All E.R. 762.
          Dickenson v. Fletcher (1873) L.R. 9 C.P. 1.
          Reg. v. Pierson (1706) 1 Salk. 382.
          Rex v. Chapman [1931] 2 K.B. 606, C.C.A..
          Woodhouse v. Hall (1980) 72 Cr.App.R. 39, D.C..
          CASE STATED by the South Westminster
          Stipendiary Magistrate sitting at Bow Street.
          On January 21, 1982, an information was
          preferred by the prosecutor, Robert Kelly, a
          Sergeant in the Metropolitan Police, against the
          defendant, Christine Purvis, alleging that between
          October 20, 1981, and January 20, 1982, she did
          assist in the management of a brothel at premises
          known as Celebrity Sauna, 85, Charlotte Street,
          London, W.1, contrary to section 33 of the Sexual
          Offences Act 1956. The defendant pleaded not
          guilty to the information.
          The stipendiary magistrate (Mr. W. E. C. Robins)
          heard the information on April 6, 1982, to the
          conclusion of the prosecution case and found, prima
          facie, the following facts. Between October 20,
          1981, and January 20, 1982, the defendant was
          prima facie assisting in the management of the
          premises concerned, a massage parlour licensed by
          the appropriate local authority. The premises
          consisted of a lounge/reception area, two changing
          rooms, three massage rooms, a solarium, a sauna
          and two shower cubicles. On payment of the
          appropriate fee on entry, massage, or sauna and
          massage were provided. The defendant told the
          prosecutor that the charges were as follows:
          massage £12; sauna and massage £15; VIP
          treatment including free drinks at the bar £18. A
          card also advertised a sauna at £5, but the defendant
          told the prosecutor that they did not do saunas on
          their own. During the massage, which tended to
          concentrate on the customer's lower back, buttocks
          and thighs, extra services were offered by the
          masseuse concerned for an additional fee of £15,
          namely manual masturbation of the client's penis.
          There was a charge of £20 if the additional service
          was performed topless, and a charge of £25 if
          performed naked. Those fees were usually paid
          direct to the masseuse concerned but on one
          occasion to the receptionist. There was no evidence
          that the additional fees and surcharges were treated
          as part of the takings of the establishment. Eleven
          women were seen in the premises during the eight
          days of observation, usually four working there at
          any one time, one of them acting as receptionist. A
          number of men were seen to visit the premises. On
          each occasion on which the officers visited the
          premises during the observation, they were offered
          masturbation and heard similar offers to other men.
          On two occasions men were seen to be masturbated,
          one by the defendant. Semen was found on tissues
          taken from the premises at the conclusion of the last
          police visit. The defendant also acted as a masseuse
          and performed masturbation. There were also
          conversations in her presence when she *665 was
          the receptionist which indicated that she was fully
          aware of the sexual services given by the other
          masseuses. There was no evidence that full sexual
          intercourse was offered at the establishment,
          although when asked by the prosecutor "Do any of
          the girls do full sex?" the defendant replied "Only
          with regulars, sir; we don't know you, sir. You will
          have to discuss it with the girls."
          It was contended by the prosecutor that these
          masseuses were prostitutes plying their trade in an
          establishment in which during the relevant period,
          the defendant assisted in the management, and that
          therefore the premises became a brothel within the
          meaning of section 33 of the Sexual Offences Act
          1956. It was submitted by the defendant that
          whether or not the masseuses could legally be
          described as prostitutes, and whether or not their
          activities might result in the commission of other
          offences, the premises could not be described as a
          brothel. It was further contended by the defendant
          that the word brothel was generally recognised as
          meaning an establishment to which male persons
          resorted for the purpose of having full sexual
          intercourse with prostitutes and that that definition
          was approved by the Divisional Court of the King's
          Bench Division in Winter v. Woolfe [1931] 1 K.B.
          549, and that that definition was quoted with
          approval after the coming into force of the Sexual
          Offences Act 1956 in Gorman v. Standen [1964] 1
          Q.B. 294.
          The magistrate was of the opinion that in the
          context of the authorities quoted by the defendant,
          illicit intercourse could only refer to sexual
          intercourse which was defined in section 44 of the
          Sexual Offences Act 1956. In default, therefore, of
          further authorities and argument from the
          prosecutor to widen that definition he felt obliged to
          dismiss the information. He was, however, satisfied
          prima facie that on the authorities quoted by the
          prosecutor, the women concerned were common
          prostitutes and the facts were sufficient to support a
          prima facie case for assisting in the management of
          a bawdy house but not a brothel. For those reasons,
          the magistrate was of the opinion that the
          defendant's contention was correct in law and
          accordingly dismissed the information without
          calling upon the defendant to answer it and also
          awarded her £500 costs against the prosecutor.
          The question for the opinion of the High Court
          was whether on a charge of assisting in the
          management of a brothel in contravention of section
          33 of the Sexual Offences Act 1956 it was essential
          that there be evidence that normal sexual
          intercourse had been provided there or whether it
          was sufficient to prove that acts amounting to
          prostitution by more than one woman had taken
          place on the premises.
          Victor Temple for the prosecutor. There is no
          definition of a brothel in the Sexual Offences Act
          1956 itself, so one is obliged to go back to the
          common law. Coke's Institutes, Pt. III (1817 ed.), p.
          204, refers to "brothel houses, estuis and
          bordelloes" and states that the keeper thereof is
          punishable at the common law. In Singleton v.
          Ellison [1895] 1 Q.B. 607 a bawdy house was
          equated with a brothel. The term "bawdy house"
          included one room kept by a lodger who
          "accommodate[s] lewd people to perpetrate acts of
          uncleanness " (Reg. v. Pierson (1706) 1 Salk 382);
          but following more recent authority more than one
          woman would be required *666 to constitute a
          brothel: see Caldwell v. Leech (1913) 109 L.T. 188;
          Durose v. Wilson (1907) 96 L.T. 645 and Singleton
          v. Ellison. In Singleton v. Ellison, a brothel was
          described as a place resorted to by persons of both
          sexes for the purposes of prostitution. It is common
          ground that the premises in the instant case were
          used for prostitution. Prostitution is not limited to
          sexual intercourse, but includes a situation where a
          woman "offers her body commonly for lewdness for
          payment in return": see Rex v. De Munck [1918] 1
          K.B. 635, 637 and Reg. v. Webb [1964] 1 Q.B. 357
          . In Woodhouse v. Hall (1980) 72 Cr.App.R. 39,
          42, a brothel was accepted as being an
          establishment at which two or more women were
          offering sexual services.
          That full sexual intercourse is not necessary to
          constitute a brothel is also suggested by section 6 of
          the Sexual Offences Act 1967, which treats as a
          brothel somewhere resorted to for the purposes of
          lewd homosexual practices. The purpose of the
          distinction between the offences of a tenant
          permitting premises to be used as a brothel in
          section 35 of the Act of 1956 and that of a tenant
          permitting them to be used for prostitution in
          section 36 of that Act is purely that more than one
          woman would be necessary for the premises to
          constitute a brothel, not because in that case full
          sexual intercourse needed to be shown.
          R. Alun Jones for the defendant. Until 1872 there
          was no distinction either in statute or at common
          law between premises being used for prostitution
          and a brothel. Prosecutions were brought under the
          Disorderly Houses Act 1752, the preamble of which
          clearly suggested that the mischief at which it was
          aimed was the element of public nuisance involved.
          Sections 5 and 8 of that Act mention "bawdy
          houses, gaming houses or other disorderly houses
          ..." Both in Hawkin's Pleas of the Crown, 8th ed.
          (1824), vol. 1, p. 717, which refers to bawdy
          houses, and in Coke's Institutes, Pt. III (1817 ed.),
          p. 204, which refers to brothel houses, the offence is
          described as a "common nuisance." It was only
          towards the end of the 19th century that Parliament
          began to provide specific rules for specific offences.
          The Licensing Act 1872 by sections 14 and 15
          respectively made a clear distinction between
          permitting premises to be the habitual resort of
          prostitutes and permitting them to be a brothel.
          Whilst payment is an essential element in
          prostitution, full sexual intercourse is not; but to
          establish a brothel, full sexual intercourse is
          necessary, though the element of payment is not. A
          "brothel" was defined by Groves J. in Reg. v.
          Justices of Parts of Holland, Lincolnshire (1882) 46
          J.P. 312 as "premises kept knowingly for the
          purposes of people having illicit sexual connexion
          there." Lopes J., at p. 313 defined a brothel as a
          place where "people of opposite sexes ... have illicit
          sexual intercourse."
          The difference between habitual prostitution and a
          brothel is maintained in Winter v. Woolfe [1931] 1
          K.B. 549, a leading authority which has been
          recognised by Parliament in subsequent legislation.
          It was held there that it was not necessary to prove
          that the women resorting to the premises were
          prostitutes, or that they received payment for acts of
          fornication, and the main point was that persons of
          opposite sexes had been permitted with the
          knowledge of the occupier to have illicit sexual
          intercourse there. In giving judgment, Avory J.
          adopted the definition of a brothel given by Grove
          J. and Lopes J. in Reg. v. Justices of Parts of
          Holland, Lincolnshire,46 J.P. 312 *667 . In Gorman
          v. Standen [1964] 1 Q.B. 294, 303, Lord Parker
          C.J. stated that "A bawdy house by definition is a
          house resorted to or used by more than one woman
          for the purposes of fornication."
          The forerunner of the Sexual Offences Act 1956
          was the Criminal Law Amendment Act 1885,
          section 13 of which provided for the suppression of
          brothels, but retained the distinction between
          premises used "as a brothel" and those used "for the
          purposes of habitual prostitution." If Parliament
          uses a word previously defined judicially without
          providing its own definition it may be presumed
          that it thereby adopts that definition. In any case,
          the words of a penal enactment must clearly
          indicate the circumstances in which they operate:
          Dickenson v. Fletcher (1873) L.R. 9 C.P. 1. Where
          there is any doubt as to the meaning of an
          enactment, the benefit of the doubt should be given
          to the subject and against the legislature which had
          failed to explain itself: Rex v. Chapman [1931] 2
          K.B. 606.
          In enacting the Sexual Offences Act 1967,
          Parliament was not purporting to define a brothel
          but simply to apply to homosexual acts what
          sections 33 to 36 of the Act of 1956 did for
          heterosexual acts. Likewise, section 5 of the Act of
          1967 gives no definition of prostitution by men. The
          facts of the present case do not establish that the
          premises were a brothel because there was no
          evidence of full sexual intercourse having taken
          place, and the appeal should be dismissed.
          Temple in reply. The definition of a brothel was
          also considered in Abbott v. Smith (Note) [1965] 2
          Q.B. 662, 663 where Judge Chapman stated: "the
          essence of a brothel, or bawdy house, is that there
          must be premises resorted to or used by more than
          one woman for the purpose of illicit sexual
          intercourse or other sexual lewdness ... with more
          than one man. ..." It is significant that offences
          under sections 30 and 31 of the Sexual Offences
          Act 1956 of living on the earnings of prostitution
          and of controlling a prostitute respectively are both
          triable on indictment as well as summarily, whereas
          that of keeping a brothel under section 33 is only
          triable summarily.
          Cur. adv. vult.
          December 2.
          ACKNER L.J.
          read the following judgment of the court. This
          prosecutor's appeal by case stated from the
          adjudication on April 6, 1982, by the South
          Westminster Metropolitan stipendiary magistrate,
          Mr. William Edward Charles Robins, sitting at Bow
          Street, raises the question: what constitutes a
          brothel?
          Only the prosecution evidence was heard, because
          the magistrate accepted the defence submission that
          the prosecution had failed to establish the offence
          alleged, namely, that between October 20, 1981,
          and October 20, 1982, the defendant, Christine
          Purvis, assisted in the management of a brothel at
          premises known as Celebrity Sauna, 85 Charlotte
          Street, London W.1, contrary to section 33 of the
          Sexual Offences Act 1956.
          The prosecution evidence established, prima facie,
          the following facts. [His Lordship summarised the
          facts as set out in the case stated, and continued:]
          The magistrate was satisfied that the women
          concerned were common prostitutes. He was not,
          however, satisfied that a prima facie case had been
          made out that the premises were a brothel by reason
          of the *668 absence of evidence that sexual
          intercourse, within the meaning of the Sexual
          Offences Act 1956, was provided.
          The magistrate's finding that the women concerned
          were common prostitutes was not challenged.
          Whereas under American law prostitution is the
          "practice of the female offering her body to an
          indiscriminate intercourse with men, usually for
          hire," it is well established that in English law
          "prostitution is proved if it be shown that a woman
          offers her body commonly for lewdness for
          payment in return": see Rex v. De Munck [1918] 1
          K.B. 635, 637, per Darling J. applied in Reg. v.
          Webb [1964] 1 Q.B. 357. Reg. v. Webb was also a
          case of a massage parlour, where the masseuses
          masturbated their clients. In that case, the point was
          taken by the defendant that the definition given by
          Darling J. in Rex v. De Munck, should be read as
          confined to cases where the woman offers her body
          for lewdness in what one might call a passive way,
          or where she submits to something being done to
          her. Lord Parker C.J., giving the judgment of the
          court, observed that the words used by Darling J.
          were not the words of the Sexual Offences Act
          1956, but merely the judge's own definition, for the
          purposes of that case, of circumstances in which
          prostitution may be said to have been proved. In the
          judgment of that court, the expression "a woman
          offers her body commonly for lewdness" includes a
          case where a woman offers herself as a participant
          in physical acts of indecency for the sexual
          gratification of men.
          It is thus common ground that these premises were
          used for the purpose of prostitution. Is that
          sufficient for it to qualify as a brothel, or do the
          prosecution have to establish that sexual intercourse
          takes place with the women who used the premises?
          There is no definition in section 33 of the Sexual
          Offences Act 1956 as to what constitutes a brothel.
          The section merely provides: "It is an offence for a
          person to keep a brothel, or to manage, or act or
          assist in the management of, a brothel." That
          offence derives from the Criminal Law Amendment
          Act 1885 (48 & 49 Vict. c. 69), where in section 13
          it is provided that: "Any person who - (1) keeps or
          manages or acts or assists in the management of a
          brothel ... shall commit an offence." That Act, too,
          gives no definition of a brothel. In such
          circumstances, as Lord Parker C.J. pointed out in
          Gorman v. Standen [1964] 1 Q.B. 294, 301: "one is
          driven back to the meaning of 'brothel' at common
          law."
          In Stephen, Digest of the Criminal Law, 5th ed.
          (1894), at p. 142, the definition of a "common
          bawdy house" is given as "a house or room, or set
          of rooms, in any house kept for purposes of
          prostitution."
          In Gorman v. Standen, Lord Parker C.J. stated that
          at common law, a brothel was the same thing as a
          bawdy-house. He pointed out, at p. 301, that the
          definition of what is involved in a bawdy-house or a
          brothel had been variously stated in the cases:
          "Sometimes it is stated as a place resorted to by
          persons of both sexes for the purpose of
          prostitution; sometimes it is referred to as a place
          used by persons of both sexes for the purposes of
          prostitution."
          The form of indictment for keeping a bawdy-house
          was referred to by Avory J. in Caldwell v. Leech
          (1913) 109 L.T. 188: *669
          "'Did keep and maintain a certain house and in
          the said house for filthy lucre and gain divers
          evil-disposed persons, women as well as men, upon
          the times and days aforesaid as well in the night as
          in the day unlawfully and wickedly did receive and
          entertain. ...'"
          In general the cases have been concerned, not so
          much with the activities which went on in the
          premises, as with the number of women who have
          to be involved, the extent of the control or
          management, and whether the women must be
          professionals or only amateurs. In Singleton v.
          Ellison [1895] 1 Q.B. 607, it was held that where a
          woman occupied a house and had men in for the
          purpose of fornication with her, she had not
          committed the offence of keeping a brothel within
          the meaning of the Criminal Law Amendment Act
          1885. Wills J. said, at p. 608:
          "A brothel is the same thing as a 'bawdy-house' -
          a term which has a well known meaning as used by
          lawyers and in Acts of Parliament. In its legal
          acceptation it applies to a place resorted to by
          persons of both sexes for the purpose of
          prostitution. It is certainly not applicable to the state
          of things described by the magistrates in this case,
          where one woman receives a number of men."
          Singleton v. Ellison was distinguished in Durose v.
          Wilson (1907) 96 L.T. 645, a case involving a
          block of flats where a number of the tenants were in
          the habit of bringing different men nightly to the
          premises for the purpose of prostitution. However,
          A. T. Lawrence J. stated, at p. 646: "a brothel is
          such a place as that described in that case - that is,
          premises used by more than one woman for
          prostitution."
          In Caldwell v. Leech, 109 L.T. 188 Avory J.
          expressed his entire agreement with the judgment of
          A. T. Lawrence J., and stated, at p. 191:
          "In my opinion the whole fundamental idea of a
          bawdy-house is that it is a house to which persons
          of both sexes indiscriminately make resort for the
          purposes of prostitution."
          The case upon which the defendant strongly relies,
          and which persuaded the magistrate to dismiss the
          information, is Winter v. Woolfe [1931] 1 K.B. 549
          . This case concerned a cottage about two miles
          from Cambridge, frequented in the main by
          undergraduates, where sexual intercourse took place
          with a number of women. The women were not,
          however, proved to be prostitutes and therefore, at
          the close of the case for the prosecution, it was
          successfully submitted that there was no case to
          answer. Accordingly, the court held that although
          the occupier of the cottage knew what was going
          on, the premises were not being used as a brothel.
          Avory J. in giving the judgment of the court, held,
          at p. 554, that the justices had "given too restricted
          a meaning to the word 'brothel' as it is used at
          common law, and as it is used in section 13 of the
          Criminal Law Amendment Act 1885." It was not
          necessary to prove that the women resorting to the
          premises were prostitutes, known as such to the
          police, or that they received payment for acts of
          fornication committed by them with men. It was
          sufficient to prove that with the knowledge of the
          occupier persons of opposite sexes were permitted
          there to have illicit sexual intercourse. This case, in
          our judgment, merely demonstrates that to
          constitute premises as a brothel, it is not essential
          *670 to show that they are in fact used for the
          purpose of prostitution, which involves payment for
          services rendered. A brothel is also constituted
          where the women (for there must be more than one
          woman) do not charge for sexual intercourse.
          In the course of his judgment (and this is
          essentially what is relied upon by the defendant)
          Avory J. expressed his willingness to accept the
          definition of a brothel given by Grove J. and Lopes
          J. in Reg. v. Justices of Parts of Holland,
          Lincolnshire (1882) 46 J.P. 312. Grove J. said, at p.
          312:
          "The sole question is, whether there was any
          evidence to support this conviction before the
          justices for permitting these licensed premises to be
          a brothel. ... I don't think that the matter of nuisance
          is of any importance, for it is too well known that
          these places are often kept in such a way as to be no
          nuisance at all, but kept perfectly private. But what
          needs only to be proved is this, namely, that the
          premises were kept knowingly for the purpose of
          people having illicit sexual connection there."
          Lopes J. said, at p. 313:
          "Now the sole question before the justices was,
          whether the applicant permitted his premises to be a
          brothel. What is the meaning of permitting the
          premises to be a brothel? I think my brother Grove
          has given a very apt definition, namely, that it is
          permitting people of opposite sexes to come there
          and have illicit sexual intercourse. That is a very
          complete and satisfactory definition of the whole
          matter."
          Reg. v. Justices of Parts of Holland, Lincolnshire
          was concerned with whether there was any evidence
          to support the conviction by the justices for
          permitting licensed premises to be a brothel. There
          was evidence that two prostitutes, accompanied by
          two men, went into the house; that the police had
          watched the house; that they observed soon
          afterwards, by shadows on the blinds, these four
          people undressing in a double-bedded room. When
          the police at a later hour, knocked at the door,
          considerable delay occurred in opening it. Then
          they found that the two prostitutes had been
          transferred to the bed of the landlord's wife, three
          women in one bed, while in the double bedded
          room were the two men by themselves. It was
          argued that the conviction could not be supported
          by the evidence of one isolated act. The court,
          however, held that although only one instance was
          proved, still it supplied strong evidence of the mode
          of conducting the house, and it was reasonably to be
          inferred that this had not been a solitary instance of
          such conduct, but one of many such instances.
          There was the concealment of the two prostitutes by
          the wife of the landlord showing that this had been
          no extraordinary case but a frequent occurrence.
          The wife gave no evidence. The justices were thus
          held not to be bound to state a case, there being no
          point of law raised before them. That case merely
          decided that there was evidence before the justices
          from which they could infer either that the premises
          were being used for the purposes of prostitution, or
          that persons of opposite sexes were permitted there
          to have illicit sexual intercourse. It *671 was not a
          case which called for an exhaustive definition of a
          brothel. In Winter v. Woolfe [1931] 1 K.B. 549,
          Avory J., in expressing his willingness to accept the
          definitions given by Grove J. and Lopes J. was
          doing no more than justifying his view that the
          justices were giving too restricted a meaning to the
          word "brothel."
          We therefore answer the question raised by the
          case stated in these terms. On a charge of assisting
          in the management of a brothel in contravention of
          section 33 of the Sexual Offences Act 1956, it is not
          essential that there be evidence that normal sexual
          intercourse is provided in the premises. It is
          sufficient to prove that more than one woman offers
          herself as a participant in physical acts of indecency
          for the sexual gratification of men.
          We should perhaps add, although this has not
          featured in our reasoning, that the view which we
          have expressed above does give content to section 6
          of the Sexual Offences Act 1967 which provides
          that premises shall be treated for the purposes of
          sections 33 to 35 of the Act of 1956 as a brothel if
          people resort to it for the purpose of lewd
          homosexual practices in circumstances in which
          resort thereto for lewd heterosexual practices would
          have led to it being treated as a brothel for the
          purposes of those sections.
          The appeal will be allowed and the case remitted
          to the magistrate to hear and determine according to
          the law as it has been laid down by this court.
          Representation
          Solicitors: Solicitor, Metropolitan Police; Peters &
          Peters.
          Appeal allowed. Costs in cause. Case remitted to
          magistrate to continue hearing. ([Reported by
          PAUL MAGRATH, Barrister-at-Law])
          (c) Incorporated Council of Law Reporting For
          England & Wales
          END OF DOCUMENT
          
          *339 R. v. Julie Martin
          Court of Appeal
          CA (Crim Div)
          (Lord Justice Watkins, Mr. Justice French and Mr.
          Justice Farquharson):
          August 1, 1988
          Keeping disorderly house--prostitute offering
          various sexual activities-- length of sentence.
          Nine months' imprisonment for keeping a
          disorderly house reduced to three months.
          The appellant was convicted of keeping a
          disorderly house. She had offered various sexual
          activities for payment at premises in London. No
          other prostitute was involved in her activities. The
          appellant had previously been fined for a similar
          offence. Sentenced to nine months' imprisonment.
          Held, (considering Payne (1980) 2 Cr.App.R.(S.)
          161) the circumstances in Payne were worse than
          those of the present case, and as the sentence in that
          case was reduced to six months, the sentence in the
          present case would be reduced to three months.
          Case cited: Payne (1980) 2 Cr.App.R.(S.) 161.
          References: offences related to prostitution,
          Current Sentencing Practice B 5-1. 3 (A).
          M. Boardman for the appellant.
          FARQUHARSON J.:
          On June 10 this year this appellant appeared at the
          Knightsbridge Crown Court where, after a contested
          trial, she was convicted of the offence of keeping a
          disorderly house. The learned Judge imposed upon
          her a term of nine months' imprisonment.
          She was then 23 years of age and at the time of the
          offence, in the month of January this year, she was
          living in basement premises in Balcombe Street,
          West London. During that month observation was
          kept by police officers on those premises and it was
          observed by them that a considerable number of
          visits to the flat was made by various male persons.
          A record was kept of those visits, which are too
          detailed to be referred to in this judgment. It is
          sufficient to say that there was a very considerable
          clientele.
          The appellant had published nearby an
          advertisement and a telephone number, which the
          police officers took the opportunity of using. The
          telephone was answered by somebody who turned
          out to be the appellant's "maid." In discussion she
          told them the tariff which was charged by the
          appellant for male visitors who required spanking or
          caning, either on themselves or on the prostitute.
          Further fees were charged for forms of sexual
          intercourse. The range of fees was such, bearing in
          mind the number of clients the appellant obviously
          had, that she made a very considerable amount of
          money. There is some information in the antecedent
          form to confirm that.
          *340 At a later date one of the police officers
          attended the house, posing as a customer where,
          without going into it further, it was found that the
          activities which had been described on the
          telephone were undoubtedly taking place, more than
          one customer being present.
          Subsequently the premises were raided and the
          appellant arrested. A good deal of paraphernalia in
          the form of whips and other weapons was found in
          the premises, which tend to corroborate the
          advertisement.
          Grounds have been put forward before this Court
          saying that the sentence was too long: first, the
          young woman's age--she is now 24--secondly, the
          activities which she undoubtedly indulged in were
          done privately in a room in the flat: there was no
          public offence such as might be caused by
          prostitutes soliciting in the street, and thirdly, that
          she was acting as a sole prostitute: there was no
          other woman on the premises who was taking part
          in these activities, and so there was no evidence of
          any group misbehaviour or any girl being forced to
          conduct herself as a prostitute by the appellant.
          Indeed Mr. Boardman advancing this argument
          points out this is not the kind of disorderly house
          which was contemplated by the Legislature some
          200 years ago. The activity is really that of a
          prostitute rather than somebody presenting indecent
          performances.
          There is certainly authority for saying that this
          kind of activity does come within the general range
          of what constitutes a disorderly house, but it is fair
          to say, in deference to Mr. Boardman's argument,
          that this is very much at the lower end of the scale
          of disorderly house offences.
          The difficulty in the case, one which obviously
          motivated the learned judge in taking the course
          that he did, was the fact that this appellant has a
          previous conviction for precisely the same offence,
          in that on September 19, 1986 at Marylebone
          Magistrates Court she was fined £250 for keeping a
          disorderly house, as well as being bound over in the
          sum of £200 for a term of 12 months. The attitude
          of the judge was that the appellant had plainly
          ignored the warning which had been given to her on
          that occasion, and indeed was in effect flouting the
          law by carrying on the activity in precisely the same
          way as she conducted herself before that earlier
          conviction.
          The learned judge, it appears, would not consider
          the option of a fine. We do not criticise him for that,
          but plainly he took the view that there was no
          mitigation, bearing in mind the circumstances of
          that earlier conviction.
          Before us today Mr. Boardman has referred to the
          case of Payne (1980) 2 Cr.App.R.(S.) 161. She in
          fact was charged with keeping a brothel and had
          been sentenced at her trial to a term of 18 months'
          imprisonment. On appeal this Court reduced that
          sentence to one of six months' imprisonment. It is
          fair to say that the circumstances in the case of
          Payne were very much worse than those of the
          present appellant: the scale of the activity, the
          number of people involved, the extent of the
          indecency and the general immorality of what Mrs.
          Payne was doing was very much worse, as I have
          just emphasised, than anything indulged in by this
          appellant.
          Being loyal therefore to the earlier decision of this
          Court, it seems to us that if Mrs. Payne's sentence
          was reduced by this Court to six months'
          imprisonment, the present appellant's sentence
          should be similarly reduced to something of the
          order of three months. It is our view that that would
          be an appropriate sentence for this particular
          offence.
          Accordingly the appeal will be allowed, the
          sentence of nine months' imprisonment imposed by
          the learned judge will be quashed and the sentence
          of three months' imprisonment substituted therefor.
          (c) Sweet & Maxwell Limited
          END OF DOCUMENT
          
          *39 Woodhouse v. Hall
          [Divisional Court]
          DC
          Lord Justice Donaldson and Mr. Justice Comyn
          July 9, 1980
          Evidence--Admissibility--Brothel--Management of
          Brothel--Police Officers' Evidence of Words Said
          by Employee in Brothel Not Called as
          Witness--Whether Admissible--Sexual Offences
          Act 1956 (4 & 5 Elix. 2, c. 69), s. 33.
          By section 33 of the Sexual Offences Act 1956: "It
          is an offence for a person ... to manage, or act or
          assist in the management of, a brothel."
          In a prosecution for acting in the management of a
          brothel contrary to section 33 of the Sexual
          Offences Act 1956 evidence by police officers of
          conversations in the absence of the defendant in
          which immoral services were offered to them by
          women employed at the premises as masseuses, is
          admissible to show the purpose for which the
          premises were used. Such evidence is not hearsay
          but is ordinarily admissible because it does not turn
          on the truth of the statements alleged to have been
          made by the women concerned but whether they
          made the oral offers as alleged.
          Ratten v. R. (1971) 56 Cr.App.R. 18; [1972] A.C.
          378 applied.
          [For admissibility of evidence and exceptions to
          the hearsay rule, see Archbold (40th ed.), paras.
          1284, 1286].
          CASE STATED by Redbridge Justices for the
          North East London Area sitting at Ilford.
          1. On January 6, 1978, an information was
          preferred by the prosecutor Eric Woodhouse against
          the defendant, Jacqueline Hall that she did between
          and including November 18, 22, 1977, at Wanstead
          Sauna, 3 High Street, Wanstead, E11 act in the
          management of a brothel at the said premises
          contrary to section 33 of the Sexual Offences Act
          1956.
          2. The justices heard the said information on
          November 16, 1978, when counsel for the
          prosecutor in his opening address intimated that the
          defence had been supplied with copies of the
          prosecution witnesses' statements, that counsel for
          the defendant wished to object to the admissibility
          of certain evidence, and that both counsel asked us
          to rule on this matter at the outset.
          *40 The evidence in question was that of
          conversations by police officers with women at the
          premises, out of the presence and hearing of the
          defendant, in which immoral services were offered.
          3.Counsel for the prosecutor outlined the
          prosecution case as follows:
          (a) the premises referred to in the information
          were a Sauna and Massage establishment occupying
          two floors of the building, and consisted of a
          reception area, sauna room, solarium, exercise
          gymnasium, showers and cubicles used for changing
          and massage;
          (b) the defendant was the manageress of the
          establishment and that two other women were also
          employed there with her from time to time, so that
          there were always two women on the premises at
          any one time;
          (c) during the period referred to in the information
          four police officers in plain clothes had kept
          observation on the premises and had also entered it
          in the guise of customers, when they had used the
          sauna, gymnasium and showers and had been
          massaged by the defendant and the other two
          women;
          (d) while being massaged they had been offered
          masturbation under the name "hand relief" by the
          defendant and also by the other two women, such
          offers having been on some occasions unsolicited
          and on others in response to questions from the
          officer concerned, and that the price quoted for
          "hand relief" was £6 and for "topless hand relief" £10;
          (e) such offers were made when the defendant or
          other women making the offer was alone with one
          of the police officers, so that when made by one of
          the other women the defendant was neither present
          nor within earshot;
          (f) none of the officers had accepted any such
          offer, each making some excuse;
          (g) test requests by the officers for sexual
          intercourse had been refused;
          (h) on one occasion when a man being massaged
          by the defendant was glimpsed through a half-open
          door it was seen that he was naked and his penis
          erect;
          (i) on January 9, 1978, when a warrant for the
          defendant's arrest was executed police officers
          searched the premises and found a number of
          discarded tissues two of which were later shown to
          bear heavy seminal staining; and
          (j) the two other women were not to be called as
          witnesses for the prosecution.
          4. It was contended by the prosecutor that
          evidence by police officers of conversations with
          women on the premises out of the hearing of the
          defendant in the course of which extra services of
          an immoral nature were offered would be
          admissible on the ground that such evidence went to
          prove that the premises were in fact a brothel, being
          a place resorted to for the purpose of the
          prostitution of more than one woman.
          5. It was contended by the defendant that such
          evidence would be inadmissible as being hearsay.
          6. The justices ruled that the evidence would be
          rejected as inadmissible unless the women alleged
          to have spoken the words gave evidence of them.
          Consequently the prosecution were only able to call
          evidence relating to the activities of one woman and
          at the conclusion of the prosecution's case the
          defence submitted and the prosecution did not
          challenge that there was no case to answer there
          being no evidence that there was more than one
          prostitute engaged on the premises. The justices
          accepted the submission and found that there was
          no case to answer and did not come to any
          conclusion as to the facts.
          7. The justices were referred to the following case:
          Gorman v. Standen [1963] 3 All E.R. 627; (1963)
          48 Cr.App.R. 30.
          *41 8. The justices were of opinion that the object
          of the proffered evidence was to establish the truth
          of the statements and was therefore hearsay and
          inadmissible. There being no evidence that more
          than one prostitute was engaged on the premises
          they accordingly dismissed the information. The
          prosecutor appealed.
          9. The question for the opinion of the court was:
          "Whether the justices were right in rejecting as
          inadmissible the proffered evidence of conversions
          between police officers and women who offered
          immoral services on the premises, such
          conversations not being in the presence and hearing
          of the defendant Jacqueline Hall."
          John Hazan, Q.C. and John Blair-Gould for the
          prosecutor. Ann Goddard for the defendant.
          Donaldson L.J.:
          This is a prosecutor's appeal by case stated against
          the dismissal of a charge against the defendant
          under section 33 of the Sexual Offences Act 1956.
          The charge was that between and including
          November 18 and 22, 1977, at Wanstead Sauna in
          Wanstead, London, she acted in the management of
          a brothel at those premises contrary to that section.
          The question of the admissibility of certain
          evidence was raised at the beginning of the hearing,
          and, in consequence, the case does not find facts but
          sets out the evidence which the prosecution sought
          to adduce to prove the charge, and which, as was
          admitted, they could only prove if two police
          officers gave evidence of a conversation.
          The prosecution case, so far as relevant, was this.
          The premises consisted of a reception area, a sauna
          room, a solarium, an exercise gymnasium, showers
          and cubicles for changing and massage. The
          defendant was the manageress of the establishment.
          Two other women were also employed there with
          her from time to time, so that there were always two
          women on the premises at any one time. During the
          period referred to in the information four police
          officers kept observation and also entered the
          premises in the guise of customers. They used the
          sauna, the gymnasium and the showers. They were
          massaged by the defendant and by the two other
          women.
          Then I get to the crucial matter upon which the
          prosecution relied, the evidence by the police
          officers "that while being massaged they had been
          offered masturbation under the name 'hand relief' by
          the defendant and also by the other two women,
          such offers having been on some occasions
          unsolicited and on others in response to questions
          from the officer concerned, and that the price
          quoted for 'hand relief' was £6 and for 'topless hand
          relief' £10." Then the prosecution case goes on to
          allege "that such offers were made when the
          defendant or other woman making the offer was
          alone with one of the police officers, so that when
          made by one of the other women the defendant was
          neither present nor within earshot" and "that none
          of the officers had accepted any such offer, each
          making some excuse." It appeared that the other two
          women, not unnaturally, were not to be called as
          witnesses for the prosecution.
          The justices ruled that the evidence of the police
          officers as to the offers made by the two other
          women were inadmissible unless the women
          themselves gave evidence as to what they had said.
          The prosecution accepted that in the absence of the
          evidence of the police officers, they could not
          establish that this was a *42 brothel, namely an
          establishment at which two or more women were
          offering sexual services. The question is whether
          the evidence was rightly excluded.
          We have been referred to Ratten v. R. (1971) 56
          Cr.App.R. 18; [1972] A.C. 378, a Privy Council
          decision, but one which reflects English law. For
          my part I think it is sufficient to refer to a short
          passage in the opinion of the Board which was
          delivered by Lord Wilberforce and appears at p. 23
          and p. 387 of the respective reports: "The mere fact
          that evidence of a witness includes evidence as to
          words spoken by another person who is not called,
          is no objection to its admissibility. Words spoken
          are facts just as much as any other action by a
          human being. If the speaking of the words is a
          relevant fact, a witness may give evidence that they
          were spoken. A question of hearsay only arises
          when the words spoken are relied on 'testimonially,'
          i.e. as establishing some fact narrated by the words.
          Authority is hardly needed for this proposition, but
          their Lordships will restate what was said in the
          judgment of the Board in Subramaniam v. Public
          Prosecutor [1956] 1 W.L.R. 965, 970: 'Evidence of
          a statement made to a witness by a person who is
          not himself called as a witness may or may not be
          hearsay. It is hearsay and inadmissible when the
          object of the evidence is to establish the truth of
          what is contained in the statement. It is not hearsay
          and is admissible when it is proposed to establish by
          the evidence, not the truth of the statement, but the
          fact that it was made."'.
          I suspect that the justices were misled by
          Subramaniam's case (supra) and thought that this
          was a hearsay case, because they may have thought
          that they had to be satisfied as to the truth of what
          the ladies said or were alleged to have said in the
          sense they had to satisfy themselves that the words
          were not a joke but were meant seriously and
          something of that sort. But this is not a matter of
          truth or falsity. It is a matter of what was really
          said--the quality of the words, the message being
          transmitted.
          That arises in every case where the words
          themselves are a relevant fact. The quality of the
          words has to be assessed, but that is quite different
          from the situation where the words are evidence of
          some other matter. Then their truth and accuracy
          has to be assessed and they are hearsay.
          There is no question here of the hearsay rule
          arising at all. The relevant issue was did these ladies
          make these offers? The offers were oral and the
          police officers were entitled to give evidence of
          them. The evidence, in my judgment, was wrongly
          excluded and should have been admitted. What the
          result would have been is of course another matter.
          This charge relates to 1977 and the prosecutor in
          this case, a metropolitan police officer, and the
          Metropolitan Police as the prosecuting authority,
          have very properly said that it would be oppressive
          to continue with the trial of these proceedings at this
          stage. It is no fault of either party that there has
          been this delay. For my part I would declare simply
          that this evidence should have been admitted. If the
          question arises in another case, as it will, the
          evidence should be admitted. In this case I would
          make no order sending the case back.
          Comyn J.:
          There is a famous observation in English
          literature: "What the soldier said was not evidence."
          That can be misleading.
          The subject of hearsay can be misleading, because
          it looks so simple in outline. I think a case such as
          this is of particular importance for emphasising that
          we are not dealing with an exception to the hearsay
          rule. What we are here dealing *43 with is a more
          fundamental question as to whether the evidence
          proffered by the prosecution, rejected by the
          justices, was hearsay at all.
          In my judgment, sharing completely the views
          expressed by Donaldson L.J., this was never a
          question of hearsay evidence. This was a question
          of whether there was ordinary admissible evidence
          and there was, with the result as Donaldson L.J. has
          stated.
          Representation
          Solicitors: Solicitor, Metropolitan Police, for the
          prosecutor. Pellys, Bishop Stortford, for the
          defendant.
          Appeal allowed. Case not remitted.
          (c) Sweet & Maxwell Limited
          END OF DOCUMENT