HKSAR v. SUM CHI CHUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 858 OF 1997

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J U D G M E N T

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1. The Appellant (as the 1st Defendant) was convicted of engaging in bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance, Cap. 148.

2. The facts of the case were comparatively simple. A police party went to a residential flat in Shatin, two officers waited outside the building on the ground floor to observe the flat, the leader of the party pressed the doorbell. When no one answered, the officer continued to press the doorbell saying that they were police. From inside the dwelling, the Inspector heard very quick steps and the sound of water flushing. He therefore believed the people inside were destroying evidence. At this point, he gave the order to use force to gain entry. The iron door was forced and as the wooden door was about to be forced, a man inside said: "Don't break it, I will open it." The Appellant opened the door and he and a second man (the 2nd Defendant) were found inside the premises.

3. In the master bedroom of the flat, there was a mahjong table on which were 4 mobile telephones connected to two cassette recording machines, part of a racing journal, some blank paper, 2 calculators, and an Instant Link Machine which gave racing information. There was a direct line telephone connected to another cassette recorder on a stool next to the table. A television was on showing a race meeting in progress. Next to the table was half a bucket of water and, in the bathroom, paper slips were fished out from the lavatory bowl.

4. When asked why he opened the door so late and what the things on the mahjong table were for the Appellant replied "Ah sir, you know very well what I am doing. I admit that I am doing bookmaking activities on horseracing. But I have a request. I admit that I am doing bookmaking but it has nothing to do with my friend. Don't bring my friend to the police station together and can you not collect so many things, but only seize the radio, one telephone and one cassette. Then I will co-operate with you." When he was asked who threw various items onto the street, the Appellant said, "No difference. I threw it." Later on, the Appellant told the police that it was a racing journal that had been thrown outside, that betting slips were either thrown into a bucket of water or flushed down the toilet when the police arrived and that the paper used was water soluble. He provided the police with the telephone numbers used and told police that telephone cards had also been flushed down the toilet.

5. The Appellant did not give evidence or call witnesses. His grounds of appeal were that the Magistrate erred in ruling the verbal confessions admissible in that she had relied on Rule I of the Rules and Directions for the Questioning of Suspects, when in fact Rule II should apply. The Magistrate was said to have further erred in ruling that even though Rule II should only apply after the initial conversation with the Appellant, she was wrong to accept PW4's evidence about the verbal admissions, because he forgot to caution the Appellant. Further the Magistrate had failed to consider that police officers are bound to administer a caution when he or she had reasonable grounds to suspect that such a person had committed an arrestable offence.

6. As an alternative, it was suggested that even if the alleged verbal admissions were admissible, the Magistrate should have ruled that little if any weight should be attached to them because the conversations had been conducted in fundamental breach of the Rules; that Appellant was not given any opportunity to verify the accuracy of the alleged confessions, and the police officer's evidence about the precise conversation he had with the Appellant was at least vague.

7. The matter of the inadmissibility of the verbal admission was put before the Magistrate at trial. The Magistrate found that the verbal admissions had not been recorded; she was asked to make a ruling on admissibility at the end of the prosecution case and did so. The Magistrate considered the context of the two rules and found that although police had reason to suspect on entry that illegal bookmaking activity may have been taking place, that the evidence was insufficient to show whether bookmaking had taken place, or, if it had taken place, which, if either, of the two men on the premises was involved.

8. The Magistrate considered that when the police officer after entry asked the Appellant why there were so many things on the table and what they are for, that he was making enquiries and Rule I applied. The Magistrate agreed that after the initial admission by the Appellant, the police did have evidence to suspect that an offence had been committed and that PW4 should, at that stage, have cautioned him in accordance with Rule II. The officer did not caution him and in cross-examination agreed that he should have, but said he forgot to do so.

9. The Magistrate was aware of the failure to caution, but considered that the officer's attention had been deflected at that stage by the Appellant's rather unusual request that his companion not be taken to the police station and that the police leave him certain of the bookmaking items rather than taking them all. The Magistrate noted that the police officer had forgotten to caution at that stage and went on to consider whether or not, this necessarily rendered the admission inadmissible.

10. The Magistrate having carefully considered the matter, concluded that the absence of the caution did not necessarily make the admissions inadmissible. She had to be certain first of all whether or not the admission had been made and that related to the credibility of the police officer who gave evidence on this point. The Magistrate also had to consider whether or not it was fair in the circumstances to use the admissions. It was submitted that the Magistrate failed to appreciate the difference between Rule I and Rule II, but it was quite clear from the evidence that the differences were a significant part of the defence case. In cross-examination, the Inspector did not admit to a breach of Rule I as was put to him. A lengthy submission was made by defence counsel, various authorities were cited, there were multiple references to Rule 1 and Rule 2, and their differences and the Magistrate was fully aware of the Appellant's point. The Magistrate in her statement of findings set out Rules 1 and 2 and explained how they had been applied in the actual case.

11. The Appellant chose not to give evidence or call witnesses; there was no submission that the lack of caution affected his conduct while he was in the flat. In fact, the Appellant's rather bold requests to the police both to leave his friend behind and also to allow him to keep most of the exhibits, shows Appellant was hardly in a position where his will had been overborne. There was no suggestion that due to the lack of caution oppression resulted.

12. The police officer did not record the admissions at the time, but made a report as to the gist of what had been said when he was back at the police station. The Magistrate was fully aware that there was no contemporaneous record. Although it was suggested that the verbal admissions came solely from the evidence of PW4, the evidence shows that PW3 also overheard part of what was said.

13. Counsel at appeal referred to various cases relating to the English situation and the PACE rules: the PACE rules do not operate in Hong Kong which has its own Rules and Directions and the Magistrate was obliged to consider the case accordingly. It is axiomatic that those Rules and Directions are important and should be followed, if at all possible, in investigations, but the fact they are not followed, or that there are technical breaches of them does not automatically render evidence obtained inadmissible.

14. The Magistrate had the advantage of seeing and hearing the witnesses. A substantial number of exhibits supported the police belief that this Appellant was bookmaking, although it was clear that without the admission made to the officers, the prosecution was most unlikely to have proceeded on a charge of bookmaking.

15. The Magistrate noted the evidence carefully and had the issues before her. She heard argument from counsel as to the importance of the Rules and Directions. She was able to look at the reasons why no caution was given. Ultimately, it for her to decide whether or not she should admit this evidence and having done so what weight she should place on it.

16. I can see nothing in her reasons to indicate that she misunderstood her task, or that the Appellant was unfairly convicted as a result of the way she dealt with the evidence. Accordingly, this appeal against conviction is dismissed.

Appeal Against Sentence

17. The only part of the sentence appealed against is the period of four months of imprisonment. There is no tariff in respect of bookmaking cases though it is stated that imprisonment should be considered in all but minor cases. The question was whether or not this was a case deserving imprisonment. Counsel complains the Magistrate took on herself the task of calculating the worth of the bets without having expert evidence on that matter before her and that no assistance on this matter was sought from the prosecution or defence by the Magistrate. Counsel argued that in the absence of any expert evidence about the scale of the operation the Magistrate should have given the benefit of any doubts about scale to the Appellant and that if a sentence of imprisonment was needed at all, this was a suitable case for suspension.

18. The Magistrate in her Reasons for Sentence considered the case of the A.G.v. Li Wai-ming [1984] HKLR 324 and the case of R. v. Yip Kam Fai and Fong Kwai Fung, CA 108/93. In the first case the Court of Appeal held an immediate custodial sentence should be considered, possibly in addition to a fine in all but minor cases under section 5 and section 7 of the Gambling Ordinance.

19. The second case held that the operators of a substantial bookmaking operation can expect to receive a sentence between 2 and 3 years imprisonment after trial.

20. The Appellant had four previous convictions, one for membership of a triad society, an old offence in 1975; one for assault occasioning actual bodily harm in 1984, and two minor gambling convictions for which he had been fined.

21. The Magistrate had been assisted by prosecuting counsel who advised her of the total value of the bets totted up from each of the 3 tapes which were seized and put in evidence. The Magistrate chose to do her own calculation and although this is not a course to be recommended in all cases, there was nothing wrong in the Magistrate considering the evidence adduced before her to gauge the size of the operation. As well as the conservative number and amount of bets estimated by the Magistrate, she could also consider the total of incoming calls that particular night and the number of telephone lines actually operated by the Appellant. It is difficult to see that this could be regarded as a small operation; it required not only the Appellant but seemingly an assistant as well.

22. The Magistrate considered that the only valid mitigating factor was that Appellant had been out of trouble for ten years. She took a starting point of 5 months' imprisonment for the offence, gave a one month discount and sentenced him to four months' imprisonment. She noted that the Appellant had not been in prison before, but considered the deterrence of a prison sentence necessary.

23. The Magistrate was in a position to decide whether or not this was a small operation, even though the precise scale of it might be in some doubt. There were five telephone lines involved; the Appellant appeared to have an assistant and he was prepared to the extent that he had water soluble paper organised for the various tickets and records. On that basis I am unable to say the Magistrate's sentence was incorrectly assessed or imposed. The appeal against sentence is dismissed.