At the request of the Chair, Mr Tom Lewis, Team Leader, Licensing, introduced the report which was seeking refusal to grant a special treatment licence for Primo Remedy, 24 Wentworth Street, London E1 7TB. He explained the reason for the objection and gave a brief history of the premises.

He explained the reason for the objection was because the premises had a history of offering services of a sexual nature.  A test purchase was carried out on the 29^th October 2021.  During the massage the person carrying out the test purchase indicated that he was offered sexual services. Mr Lewis stated that the grounds for the objection were that the premises had been improperly conducted, and the applicant was not fit and proper to hold a licence. He then referred to the representation from the Licensing and Safety Team in Appendix 2. 

It was noted that the premises provided deep tissue massage, reflexology and cupping. It was noted the fact that the Licencing and Safety Team have objected to the granting of this special treatment licence because the premises had been associated with providing services sexual nature over the years. It had initially come to the attention of the Health & Safety and Licencing Team in March 2019 and Primo Remedy and Min Zhang (applicant) were convicted under the London Local Authorities Act 1991 which was in relation to a test purchase operation finding the premises was delivering services of a sexual nature. A further complaint was also received in July 2019 about providing services of sexual nature. Officers then visited that month and Ms Min Zhang, who was then the manager, was informed of this complaint. Due to the pandemic which started in March 2020 there was no services of special treatments available until in October 2021 a test purchase was carried out and it was found again that services of sexual nature were being offered at this premises.

Mr Lewis in conclusion explained that this premises appears to have been found providing services of a sexual nature and it is believed that on a balance of probabilities that granting this new premises licence will mean that services of a sexual nature will be continued to be delivered at this premises. It also appears that Miss Min Zhang is one of the directors of the company who has been associated with the premises since 2019.

He stated that premises offering services sexual nature are often associated with the exploitation of females and can give rise to increase risk of infectious disease. It was believed that the premises has operated in an improper manner and the application should be refused by the Committee under Section 8E of the London Local Authorities Act 1991 because the premises has a history of services being offered of sexual nature and it was believed that this could continue.

Members then heard from Mr Nigel Carter, Representative on behalf of the Applicant. It was noted that the premises had been operating under exempt body status which the therapists were members but these premises ceased trading, therefore there has been a need for the licence application.

He explained that Members are being asked to refuse this application based on the assertion by Mr. Miah from the Licencing and Safety Team that the premises have been or are being improperly conducted. He refuted that this was not the case as this was the only objection to this application

He explained that the objection stems primarily from the three test purchases carried out in the premises, one in 2019 and two others in October 2021 which alleged that on each occasion the therapist offered sexual services to the witness. It was noted that the first allegation refers to a conviction in 2019 were Primo Remedy and Miss Hong Zhang the sole director of the company were convicted employing a therapist who wasn't a member of an exempt body, yet there was no evidence to support the allegation. It was further noted that the two other instances were provided with a witness statement. However, the person making the allegation was not present at the meeting and he therefore asked that the Committee on that basis disregard this allegation in its entirety as it was completely unfounded.

Mr Carter then continued to respond to the objections made. He made a point that a copy of the original representation made by Mr Miah an e-mail to Mr Carter on the 26th of July 2022 was not included in the papers before the Committee and believed this to be highly irregular, suggesting it was a deliberate omission as it undermined the Council’s case for refusing this application. Further, only a brief history of the premises was provided in appendix 2 by Mr Miah in support of his objection. He also highlighted that the first statement referred to in his original representation and alleging the services of a sexual nature were offered by a therapist at the premises on the 14^th October 2021 was no longer referred to and therefore Mr Carter had to specifically request that it was included in the agenda papers as it was significant and relevant to his submission. The allegations referred to the therapist offering services of an apparent sexual nature. However, the witness statement produces no evidence supporting this allegation. He said that Mr Miah’s initial representation states that test purchases were conducted on the 14^th and 29^th October 2021 and found that services of a sexual nature were offered at the premises, which Mr Carter claimed were completely untrue. He made references to the witness statements from the test purchases and explained how there was no evidence to support any sexual services were offered but merely conjecture from the test purchaser. Therefore, he argued that members should attach little or no weight to the evidence from this witness as he had shown that he is willing to provide a statement to support the council's assertion that therapists are offering sexual services without evidence.

Mr Carter stated that he had conducted similar test purchases during his eight years as a Licencing Inspector at the City of Westminster Council and found the manner of these test purchases lacking professionalism, as the witness did not identify himself to the manager once the massage was over nor identify the therapist who had carried out the massage and allegedly offered sexual services. Furthermore, following these test purchases his client was not made aware of these alleged offences, nor was these allegation investigated further.  The first notification received from the Council was in a letter from Mr Miah to applicant in March 2022, some four months after the last test purchase. He concluded that Ms Min Zhang was not provided with the opportunity to investigate the allegations as it would appear the Council were happy to allow them to continue operating notwithstanding the fact that they believe the premises were being run as a brothel which was untrue. Mr Carter expressed serious concerns as to the honesty and validity of the third statement made by the same surveillance operative and was of the view that the Council had failed to demonstrate that these premises have been or are being improperly conducted and therefore asked the Committee to grant this special treatment licence application.

There were no questions from Members.

Concluding remarks were made by both parties.

At this juncture, it was noted that Councillor Leelu Ahmed had joined the meeting. He was therefore advised that he could not participate in the decision making for this particular application during deliberations. However, he could remain and participate for the rest of the meeting.

Decision

The Licensing Committee considered an objection to an application for a new special treatment licence (MST licence) made by Z&Z823 Ltd. in respect of Primo Remedy, 24 Wentworth Street, London, E1 7TB (“the Premises”). The objection had been made by the Licensing Authority on the basis of the history of the Premises.

Tom Lewis of the Licensing Authority addressed the Committee in respect of the objection. In March 2019 the company operating from the Premises, Primo Remedy Ltd., and its director, Hong Zhang, were convicted at Thames Magistrates’ Court of an offence contrary to section 14(1) of the London Local Authorities Act 1991. The Premises had the benefit of an exemption; however, on the occasion in question, the therapist did not benefit from an exemption. Whilst the prosecution was for an offence of carrying on special treatments without a licence where one was required, Mr. Lewis confirmed that the test purchase had referred to an offer of sexual services.

Ms. Zhang was advised of this offer of sexual services in July 2019. The Premises were treated as being exempt from licensing. Test purchases were carried out on 14^th ad 29^th October 2021 and the test purchasers state that they were offered sexual services. Mr. Lewis was also concerned that granting this application would mean it was more likely that sexual services would continue to be offered in the future. He also indicated that Ms. Zhang appeared to have some connection with the former operators.

Nigel Carter addressed the Committee on behalf of the applicant. He stated that the Licensing Authority’s objection was the only objection. The first conviction related not to the offer of sexual services but to the fact that a non-exempt therapist was employed. He asserted that as there was no witness statement before the Committee to address that, there was no evidence of the allegation and it should be disregarded.

Mr. Carter then suggested that there was an irregularity in that a response from Kamal Miah dated 26^th July 2022 was not included in the Committee papers. This, in his view, undermined the case for refusing the application. There was a test purchase on 14^th October 2021 but this was not referred to in the representation. He stated it was significant that it was omitted although it was now included in the supplemental agenda. He stated that there was no evidence of an offer of sexual services and that it was mere supposition on the test purchaser’s part.

With regard to the second test purchase, Mr. Carter asserted that it doesn’t say what the hand gesture alluded to was and that it was said to be over the test purchaser’s waist rather than over his genitals. He denied it was an offer of sexual service. Further, as the test purchaser was not present, it was hearsay and should be disregarded.

Mr. Carter suggested that it was “significant” that the test purchaser was the same on both occasions and that the test purchasers were lying.

In his concluding remarks, Mr. Carter told the Committee that Ms. Zhang held two MST licences elsewhere, both of which had been issued in the last six months and that she had never been prosecuted or reviewed. He also alleged that the use of a test purchaser was a Covert Human Intelligence Source (CHIS) and thus required authorisation under the Regulation of Investigatory Powers Act 2000 (RIPA) and that this also constituted a breach of the Council’s Enforcement Policy.

Mr. Lewis confirmed that he did not say that the applicant was not fit and proper but that there were nonetheless concerns if the Premises were to continue to be operated. He agreed that the test purchase repot of 14^th October 2021 relied upon inference. However, the test purchase report of 29^th October 2021 clearly did relate an incident, as did the statement in support of the prosecution in 2019.

The Committee is not a court and is not bound by strict rules of evidence. It is entitled to rely upon hearsay evidence and the weight it gives it is a matter for the Committee. By the same token, its function is not to determine guilt or innocence.

As to the incident on 14^th October 2021, the Committee accepted that there was no direct offer of sexual services. If there was such an offer, it was highly subjective and the benefit of the doubt must be given to the applicant.

As to the incident on 29^th October 2021, however, the Committee was satisfied that there was such an offer. The Committee found that the offer was entirely clear and that there was nothing to Mr. Carter’s point that, because the purchaser was not more explicit in detailing the hand gesture or that the gesture was said to be over the waist, that there was some other rational explanation. This is particularly so, given that the reference was to a “handy” and a “happy ending.”

Similarly, that the statement in respect of the prosecution in 2019 was not in the report pack did not mean that Mr. Lewis could not tell the Committee what it said. It would have been open to Mr. Carter to request that it be before the Committee, as was the case with the report of 14^th October 2021. The Committee accepted that it was more likely than not that the statement said what Mr. Lewis said it did. Moreover, Ms. Zhang was advised of that offer in July 2019 and that was set out in written documentation given to her at that time.

The Committee was therefore satisfied that there was a history of sexual activity associated with the Premises and that it was reasonable to infer that there would have been other incidents. In addition, given that the incident of 29^th October 2021 occurred when Ms. Zhang was operating or managing the Premises, it gives the Committee cause for concern that there may be such incidents in the future.

The Committee did not agree that the test purchases are in breach of RIPA or its own Enforcement Policy. It was advised that the test purchases did not amount to the use of a CHIS within the meaning of s.26(8) RIPA as there was no establishment or maintaining of a relationship which is a necessary prerequisite. Even if it were a breach of RIPA, however, the conduct was not of itself unlawful by virtue of s.80 nor did it affect the validity of the evidence.

Having regard to everything it had heard, the Committee was satisfied that the premises have been or are being improperly conducted and that it is appropriate to refuse the application for a licence pursuant to s.8(e) of the London Local Authorities Act 1991.

Accordingly, the Committee unanimously;

RESOLVED

That the application for a special treatment licence for Primo Remedy, 24 Wentworth Street, London E1 7TB be REFUSED.