THE QUEEN v. YEUNG SIU TONG

BETWEEN

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JUDGMENT

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1. This is an appeal against the conviction of the Appellant by a magistrate for the offence of re-entering The Royal Hong Kong Jockey Club Premises after being ejected therefrom, contrary to Section 25(3) of the Gambling Ordinance.

2. There is no appeal against the sentence. The magistrate imposed a very nominal fine, taking the view, which I entirely agree, that this was a technical offence.

3. I have, if I may say so, some sympathy for both sides in the rather unhappy dispute that gave rise to these proceedings. The officials of the Jockey Club seemed to have acted reasonably and carefully, but on the other hand, for the Defendant, it must have been extremely upsetting to be ejected from the premises of the Club of which he is a member.

4. It is quite understandable in human terms that he should have made his way back into the premises again after his ejection from them in order to try and see a Steward and to put his complaint about the way he had been treated before the senior official.

5. Nevertheless, in re-entering the premises, he fell foul of a section of the Gambling Ordinance of which doubtless he had never heard before.

6. Subsection 25(3) reads:

 

"Any person, who having left or been removed from racing club premises after being required to leave the same under subsection (2), re-enters the premises on the same day commits an offence and is liable on conviction to a fine of $50,000 and to imprisonment for 2 years."

7. It is not in dispute that the Defendant had been removed from The Royal Hong Kong Jockey Club Premises in Happy Valley a few minutes before he re-entered.

8. It is accepted that the Defendant is a member of The Jockey Club. But Mr. Litton did not go so far, as I understood it, as to submit that the fact of his membership excluded him from the operation of the section. Certainly it is my view that, whether you are a member or not, you can be convicted of an offence under that section if its conditions are satisfied.

9. The main ground of appeal, which was persuasively argued by Mr. Litton, was that the magistrate was wrong in that part of his judgment in which he says:

 

"I do not accept that the purpose of the return of the Defendant was relevant to the said charge. The wordings of s. 25 (3) are clear and unambiguous and do not need the assistance of any reference to any mischief being intended to prevent."

10. Mr. Litton argued that this was a mis-statement of the law, and that it was necessary for the magistrate to consider the purposes for which the Defendant had secured re-entry to the premises.

11. He added that, if those purposes were proper ones and he suggested that his desire to see a steward was a proper one, this would amount to a defence to a charge under that section. If that were not so, he said, this would mean that the offence was one of an absolute nature, not re-quiring any criminal intent or mens rea.

12. He referred me to Cheng Chung-wai v. R.⁽¹⁾, in which the Court of Appeal found that a mere conscious utterance was not sufficient to make out the offence of claiming to be an office-bearer in an unlawful society.

13. I find little assistance from this case, which was dealing with an oddly worded section of the Societies Ordinance and with a special procedure that was adopted by the police in an effort to cleanse members of triad societies from their associations with them.

14. In the Gammon ⁽²⁾ case, the Privy Council considered the principles which ought to govern the courts, in approaching the question of whether or not the prosecution must establish a criminal intent or mens rea.

15. I think it only necessary for me to refer to a passage at p.12 of the report in which Lord Scarman delivering the judgment of the Privy Council referred to Sherras v. De Rutzen ⁽³⁾. From that he quoted the following passage:

 

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence;..."

16. There are cases in which it is not necessary for the prosecution to establish any knowledge of the wrongfulness of the act. for example, where there is a prohibition against the employment of children below a certain age in industry. There, even a belief on the part of the employer that the child is above the prohibited age cannot constitute a defence.  That is a true example of an offence in which no mens rea is required.

17. This is not one of those cases. What is required, as is set out in the passage which I have just quoted, is that there shall be a knowledge of the wrongfulness of the act. In reality, of course, the ordinary citizen often does not know the law and therefore, in reality, does not consciously know of the wrongfulness of his act. Nevertheless, since he is presumed to know the law, his knowledge of the wrongfulness of an act which does offend a criminal provision must also be presumed.

18. In this instance, therefore, it must be presumed that the Defendant, having been removed from the racing club premises, knew that it constituted an offence under Section 25(3) to re-enter them on the same day.

19. This constitutes, as I read the law, knowledge of the wrongfulness of his act. It is not an absolute offence in the sense to which I referred in relation to the employment of young children. If a Defendant can show that he entered the premises by mistake, or that he was pushed onto them against his will, this would constitute a defence, as it would not, if the offence were absolute in nature.

20. In summary, therefore, I consider that the magistrate approached the question of the interpretation of the relevant section correctly, and the appeal against conviction must be dismissed.

(1) [1980] H.K.L.R. 593

(2) 1985 Appeal Cases

⁽³⁾ [1985] 1 Q.B. 918