LAM KIN YIU AND OTHERS v. THE QUEEN

Magistrate's Appeal

Conviction under Section 7(1)(a) Gambling Ordinance.

7(1)(a) makes it an offence to engage in bookmaking.

7(1)(c) makes it an offence to assist another person in bookmaking.

A charge of the latter offence can only be instituted with the consent of the Attorney General.

Both offences carry same maximum penalty.

Presumption in Section 19(3) does not apply in proceedings under Section 7(1)(a) though it does in proceedings under Section 7(1)(c).

The Queen v. Chan Yee Shun Criminal Appeal No. 846/83

The Queen v. Poon Sze Tak & others Criminal Appeal No. 1012/83

Evidence consistent with either offence.

Crown not supporting conviction.

Held

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 175 OF 1985

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JUDGMENT

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1. This is an appeal from the Magistrate's court at San Po Kong against convictions for bookmaking contrary to Section 7(1)(a) of the Gambling Ordinance (appellants 1, 2 and 3) and knowingly suffering premise to be used as a gambling establishment contrary to Section 15(1)(a) (appellant 1 only).

2. The Magistrate in his Statement of Findings has set out a number of findings, some of which have been challenged on this appeal and some of which have not. It is, I think, a fair summary of the findings which have not been challenged to say that he found that the premises in question, namely Flat No.2, 7/F., Miami Mansion, No.99B Waterloo Road, were raided by a police party under a gambling authorization, Exhibit P1, on Saturday, the 17th March 1984, at 3:10 p.m.; that the 1st appellant opened the wooden door but not the iron grill and that he tried to prevent the police gaining entry to the premises by trying to push the wooden door closed and at the same time he kept looking back into the flat; that while the police were at the front door, the 2nd and 3rd appellants were seen to come out of a particular room; at this time, the 2nd appellant was holding pieces of paper, Exhibit P3 in one hand and he was also holding a horse racing journal; inside the room from which the 2nd and 3rd appellants had emerged, the police found paraphernalia suitable for bookmaking, namely Exhibit P6 (10 pieces of paper), Exhibit P7 (some slips of paper), Exhibit P8 (3 blank books), Exhibit P9 (3 newspapers namely the Professional Horse Racing News, the Racing Daily News and the Ming Po Daily, all dated Saturday, the 17th March 1984), Exhibit P10 (4 ballpens), Exhibit P11 (1 ruler), Exhibit P12 (2 calculators); that in the same room the television set was on showing a horse racing programme; that there were many telephone calls to the two telephone sets on the table inside this room; that when sergeant 16483 answered the phone for 7 to 8 of these calls by saying "Wei" meaning "Hullo" each caller hung up; that the keys to the premises were obtained from the 1st appellant and found to fit the wooden door and the iron grill; that a certified copy of the particulars of ownership of the premises, Exhibit P5 indicated a person by the same name as the 1st appellant to be an owner of the premises; furthermore, two other documents, Exhibit P13, the water account and Exhibit P15, a payment advice, both supported a conclusion that the 1st appellant was an owner occuper of the premises.

3. It was the Crown contention in the Magistrate's court that the pieces of paper in Exhibits P3 and P6 were in fact betting slips. A station sergeant gave evidence under Section 20(3) of the Gambling Ordinance as an expert witness to explain the significance of the exhibits found in the premises and of the circumstances at the time of the police raid. It was conceded at the trial that the station sergeant was an expert in this field. Some of the Magistrate's findings based partially upon the evidence of this station sergeant are attacked on this appeal. In particulars his finding that of the pieces of paper, Exhibit P3, found on the person of the 2nd appellant, all but two were betting slips relating to that day's race at Shatin; also the Magistrate's finding that all the pieces of paper, Exhibit P6, found in the room from which the 2nd and 3rd appellants had emerged, were 10 illegal bookmaking slips relating to Shatin races that day.

4. At the trial, four police officers gave evidence, (including the station sergeant who was called as an expert) but no evidence was called on behalf of the defence. The Magistrate specifically found that the prosecution witnesses were honest and he believed them and I cannot say in this regard that he reached the wrong conclusion. On the subject of the exhibits, the station sergeant had this to say:

5. Exhibit P3 (documents found on 2nd appellant's person)

"I have checked these before and I have found they are all illegal bookmaking slips. Part relate to the daytime race held on 17/3/84 at Shatin. These betting slips contain different names of punters, different races, the number of horses, the mode of betting, the amount of bets placed. They are the normal type of illegal betting slips in Hong Kong."

6. Exhibit P6 (documents found in the room from which 2nd and 3rd appellants emerged)

"I have inspected these betting slips. The mode of betting is more or less the same as I already referred to. The total amount of money bet on all 30 betting slips is $16,000."

7. When he was told of the circumstances and scene which had confronted the police officers when they raided the premises, he said:

"Judging from my experience the mode of operation, people using that room were engaged in bookmaking. All in all judging from my experience there being so many illegal betting slips and circumstantial evidence, all point to that place being an illegal bookmaking centre."

8. He was cross-examined in detail on the contents of the respective slips in Exhibit P3 during which it was suggested to him that they were records of out-going bets and they did not, therefore, record bets received. However, he replied in this respect:

"If an out-going bet no reason for such detail of number of race horse, red markings, because speaking from my experience this is the usual modus operandi of those  engaged in bookmaking."

9. He agreed that amongst the "betting slips", Exhibit P3, there were betting slips which indicated an earlier race meeting and that the presence of old betting slips among the paraphernalia does not necessarily indicate betting on the day of the raid. However he testified:

"After checking all the equipment, the circumstances and the betting slips, I formed the view bookmaking was going on on that day."

And when particularly asked about the betting slips (other than the two which definitely did not relate to the 17th March) he testified:

"The rest could relate to 17/3."

10. With respect the Magistrate received rather more evidence from the station sergeant than he was permitted to receive under Section 20(3) of the Gambling Ordinance. However, it is clear that the sergeant's evidence as to the nature, effect or purpose of the Exhibits P3 and P6 was relevant as was his evidence as to the nature, effect or purpose of the practice employed at the premises.

11. Despite the many criticisms which have been levelled at the Magistrate in respect of his numerous findings of fact, I consider that the evidence before him was overwhelming in supporting a conclusion that the premises had been used for bookmaking at the time of the police raid. In my view, the only real issue which confronted the Magistrate at the trial was whether it had been proved beyond reasonable doubt that each of the defendants had engaged in that bookmaking.

12. I think it has now become fettled law that the presumptions in Section 19 do not support the Crown in relation to a charge brought under Section 7(1)(a). Equally, I think it is settled law that sere presence in premises where bookmaking is going on is not enough to support a conviction in respect of such an offence. Mr. Hampton for the appellants relies on the cases is particular of The Queen v. Chan Yee Shun⁽¹⁾ and The Queen v. Poon Sze Tak & others.⁽²⁾

13. In view of these authorities, Mr. Newell does not support the conviction in respect of the first charge. He found force in the first and the eighteenth grounds of appeal.

14. The first ground of appeal attacked the Magistrate's finding that it was only after repeated demands by the police that the 2nd and 3rd appellants remained in the sitting room.

15. The evidence on this was as follows:

"When the two Chinese males came out of the room, I shouted stand still don't move. Colleagues shouted as well. D2 tried to walk towards kitchen. D3 tried to walk towards the sitting room. By then D3 was out of view."

And later under cross-examination:

16. There was in addition evidence from the police officers that when they entered the premises, the 2nd and 3rd appellants were inside the sitting room. This evidence is rather vague and does not seem to support the Magistrate's finding, certainly so far as the 3rd appellant is concerned.

17. The eighteenth ground of appeal was in the following terms:

"The learned Magistrate's finding of guilt against each appellant was unjustified as there was no evidence (assuming that the activity of bookmaking had been proved) as to what part, if any, the appellants and each of them took in the said activity and there was no evidence to found any or any proper inference that all three appellants were so engaged."

18. It is because Mr. Newall found force in this ground that he did not support the conviction of any of the appellants in respect of the first charge.

19. The evidence, of course, in this case against all three appellants was circumstantial and it was, therefore, essential before any of the appellants could be convicted in the Magistrate's court, that the inference of guilt was the only reasonable inference which could be drawn from the proved facts.

20. In view of the fact that the only evidence against the 3rd appellant was his presence within the premises and in view of the authorities which have been mentioned, clearly he should not have been convicted. His appeal must, therefore succeed.

21. The position of the 1st and 2nd appellants raises slightly different considerations. The 2nd appellant was found in possession of the pieces of paper, Exhibit P3, some of which were said by the expert witness to be betting slips relating to that day's racing at Shatin. The reports in the newspapers, Exhibit P9, were prima facie evidence that the horses referred to in those reports were entered in particular races to be held on that day. There was also the evidence relating to his reaction at the time of the police raid when the police shouted to him not to move. So far as the 1st appellant was concerned, there was the evidence that he attempted to prevent the police officers from entering the flat and also kept looking back into the flat at the time of the police raid. It could be argued that these considerations went beyond more presence. However, Mr. Newall has made the point that such actions by the 1st and 2nd appellants are as consistent with an offence under Section 7(1)(c) as they are with an offence under Section 7(1)(a) and it is not possible to say which of the two offences these defendants committed.

22. It would seem so far as bookmaking offences are concerned, the law makes a distinction between a person who engages in bookmaking and a person who assists another person in bookmaking. A charge in respect of the latter offence can only be instituted with the consent of the Attorney General. Both offences appear to be of equal gravity, and carry the same maximum penalty. It is clear from the authorities which have already been mentioned that the presumption in Section 19(3) only assist the prosecution in respect of a charge brought under Section 7(1)(c). For these reasons, Mr. Newell does not support the conviction of the 1st and 2nd appellants on the first charge.

23. It seems to me that the law is in an unsatisfactory state. I think that the only way it can be put right now is for the Ordinance to be amended. I allow the appeal of the 1st and 2nd appellants against their conviction in respect of an offence under Section 7(1)(a).

24. So far as the conviction of the 1st appellant on the second charge is concerned, Mr. Newall supports the conviction and argues that the presumptions under Section 19(1) apply. The Magistrate was clearly of the opinion that the pieces of paper in Exhibits P3 and P6 were betting slips even though, following the evidence of the expert witness, he referred to them as "illegal bookmaking slips". It followed from that finding and also from the finding that the police officers were obstructed or delayed in entering the premises when armed with a gambling authorization, that the presumption under Section 19(1) arose and that it was presumed until the contrary was proved that the flat was a gambling establishment.

25. It is clear that the presumption does not assist the Crown to prove knowledge on the part of the 1st appellant. Knowledge has to be inferred from the evidence as a whole.

26. In my view, it would be absurd to hold that in the circumstances prevailing at the time of the police raid, the 1st appellant did not know that the premises were being used as a gambling establishment. I think the Magistrate was justified in reaching the conclusion that the flat was being used for bookmaking at the time of the police raid and was a gambling establishment. In reaching that conclusion, he did not rely upon the presumption, but it is clear that the presumption was raised on his findings of fact. Further, in my view, there was nothing in the evidence as a whole which could show that it was more likely than not that the premises were not a gambling establishment at the time of the police raid. There was clear evidence that the 1st appellant was an owner of the premises in question and in my view it would have been absurd for the Magistrate to come to any other conclusion but that the 1st appellant had knowledge of what was going on and that he suffered the premises to be used as a gambling establishment on the day in question.

27. For these reasons, the appeal of the 1st appellant against his conviction on the second charge is dismissed.

(1)    Criminal Appeal No. 846 of 1983

(2)    Criminal Appeal No. 1012 of 1983