THE QUEEN v. KWOK CHOR-CHE AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 712 OF 1989

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BETWEEN

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J U D G M E N T

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1. This is an appeal against a conviction for gambling in a gambling establishment. The appellants were, in the court below, D6, D7, D8 and D9 respectively.

2. The Crown adduced evidence that a party of police, armed with a gambling authorization, entered the basement of NO.33 Allway Garden in Tsuen Wan ('the premises') and found the four appellants playing cards at a table. It is not in dispute the premises were commercial premises.

3. Next to the table was a stool on which was placed a large tin box which contained $50- in $10- notes. At another table, in the same room, there was a mahjong table, mahjong equipment and $160- in a box.

4. One of the officers testified that the 4th appellant had claimed the $50- was hers but that she had only said that at the promting of the 1st appellant.

5. It is not in dispute that the following sums of money were found on the appellants, namely, $3,712 on the 1st appellant, $23.50 on the 2nd appellant, $6,155.20 from the 3rd appellant and $6,405.50 from the 4th appellant.

6. The 1st appellant testified they were playing Chor Tai Dei and that it was only a family game. They had earlier had dinner, and he and the 3rd appellant had attempted to repay the 4th appellant who had paid the bill but who refused to accept the money and that it has been agreed the money be put in the tin box to be used later for night snacks.

7. The 1st appellant called a witness who testified he had been an onlooker and that he had not seen any money change hands or any chips or commission money set aside. No other appellant gave evidence or called evidence.

8. The magistrate found that the presumption under section 19(1)(c) of Cap.148 applied as the premises were a 'gambling establishment'. He found there had been 'gambling equipment' as defined by section 2 of cap.148.

9. The magistrate found the 1st appellant's evidence not credible he was certain that the 1st appellant was manufacturing his evidence and trying to conceal the true nature of the activities in the premises.

10. Mr Millar for the appellants pointed out that two of the appellants lived in the same building as the premises, that another appellant lived a very short distance away. Only the 1st appellant lived a long way away but he had lived in that building for five years till about six months before. I don't think that suggests anything beneficial to the appellants - indeed, it might indicate the reverse. If the appellants were playing 'for fun', one might have expected the game to have taken place in one of the flats belonging to an appellant who lived in the building rather than in commercial premises.

11. Mr Miller's main ground, (and the only one which, with respect, was arguable) was that the magistrate had breached a fundamental duty to each defendant in not assisting them in putting issues in 'cross^. examination'. The magistrate had explained to each appellant individually, after each prosecution witness had been examined-in-chief, the purpose of cross examination and the need to challenge those parts of the prosecution evidence which were disputed. The questions put by the appellants, in particular by the 1st appellant, were very much to the point, for example, whether any money had been found in the drawers of, or on, the table, whether money had been seen to change hands, whether the main door was of glass so one could see through and whether it was open, whether there were other people gambling at the next table, the distances involved and so on. I do not know what other pertinent questions it is suggested should have been asked.

12. Criticism is made in Ground 5 that the magistrate should have warned the appellants, at the outset of the case, that if they intended to call witnesses they should remain outside the court till called.

13. After the 1st appellant had finished giving his evidence, the magistrate asked him whether he wished to call any witnesses. The 1st appellant replied he had not made any previous arrangements to do so but that 'it so happened' there was a witness in court. That witness gave evidence.

14. I was referred to Archbold 4-392. The authors of that work express the view that the court should tell an unrepresented defendant at the close of the prosecution (emphasis added) of his right to call witnesses. R v Carter (1960) 44 Cr App R 225 referred to in that passage states that an unrepresented defendant must always be told of his right to call witnesses. This the magistrate did in respect of each appellant individually. That case is not authority for the proposition advanced on behalf of the appellants. In my view the magistrate was meticulous in his duties.

15. An important feature of the evidence was the large tin box on a stool next to the table which contained $50 in $10 notes. What was that tin box doing on the stool near the appellants' table? How did it come to be there? For what use ?

16. The magistrate found the $50 in 5 $10 notes was money set aside from the gambling as a commission or reward for the person in charge of the premises, and that that person was promoting or conducting gaming by way of trade or business or for his private gain otherwise than to the extent of his winnings as a player of the game. He rejected, as he, was entitled to do, the 1st appellant's explanation as to the purpose of the money.

17. The learned magistrate was entitled to draw the inference he did. The appellants had a fair trial and the appeal is dismissed.