HKSAR v. MAN KWOK YAU AND OTHERS

HCMA704/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.704 OF 1998

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J U D G M E N T

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1. The five Appellants were part of 15 Defendants who were convicted by Miss M. Poon sitting at Shatin Magistracy of the offence of Gambling in a Gambling Establishment. The conviction was on 16th June 1998 and the particulars of the charge are that they, together with the other Defendants, had on 24th April 1998 at a store called Cheung Wong in Fan Tin Tsuen, San Tin, Lok Ma Chau, gambled in a gambling establishment. This particular village is not one about which any evidence was given but would appear by description to be a smallish village somewhere close to the border with mainland China.

2. When the appeal hearing first commenced, Mr Kwong appearing for the Appellants applied for leave for the 2nd Defendant Man Ying-cheung to be absent as he had returned to his adopted country, namely Holland. I granted leave accordingly.

3. When the appeal hearing commenced, Mr Kwong had put it on the basis that this was a social occasion when all the people who were convicted were the inhabitants of this little village and just about all of whom had the surname "Man" and that it was their habitual practice to gather, or to meet at this store, and sometimes indulge in social gambling. Therefore, Mr Kwong submits, the gambling that they were indulging in was not unlawful because in accordance with s.3(2) of the Gambling Ordinance, Cap.148, it was lawful because the game was played on a social occasion, in private premises, and is not promoted or conducted by way of trade or business, or for the private gain of any person otherwise than to the extent of a person's winnings as the player of, or at the game.

4. Mr Kwong submits that of the 15 Defendants, only one gave evidence and that was the 7th Defendant, Man Kwong-on, and he gave evidence to the effect that this store was a regular meeting place for the clansmen or the inhabitants of that village, and if any gambling went on there, it was not conducted by way of trade or business, or for the gain of any person. Mr Kwong, therefore, relying on R v. Leung Hing [1993] 1 HKC 479, submitted that the learned Magistrate should have accepted that evidence and should have found that this gambling which was carrying on on this day was gambling on a social occasion in private premises and therefore not unlawful gambling.

5. That was an attractive argument at first blush, but then Mr Cheung, appearing for the prosecution, submitted, based upon the names and addresses of the 15 Defendants, that, for a start, of the 15 Defendants, only eight are surnamed "Man"; and of the 15 Defendants, only eight lived in Fan Tin Tsuen, and of those eight, only six are surnamed "Man". So this was not just clansmen or inhabitants of this village gathering together for some social gambling. There were people from outside the village and there were people who were surnamed other than "Man".

6. In Leung Hing, Woo J decided, and in my view correctly, that :-

" Sharing of food or drinks purchased from a common fund made up of a portion of the winnings of the winner in each round did not amount to private gain."

Woo J also decided that in deciding whether it was a social occasion, an objective test should be applied but all the circumstances of the gathering, and not only limited to those relating to the participants of a game played thereat, must be looked at.

7. Social occasion is not defined in the Gambling Ordinance. Woo J held that the criterion of whether an occasion is a social occasion is the essential character of the gathering. In that particular case, Woo J had allowed the appeal and had held that the magistrate was wrong in concluding that the appellant had failed to discharge the burden of proof that the game was played on a social occasion. In that case, the persons who were gathered and gambling were members of the same trade, being all fish hawkers and there was no outsider and they gathered about once a month. On the occasion in question, they were all gathered in a VIP room of a licensed restaurant.

8. Even if the scenario as postulated by Mr Kwong can be proved by the evidence, I would have held that that is not gambling on a social occasion as "social occasion" is intended to be interpreted in the Ordinance. There would be all sorts of enforcement problems for the police if the law were otherwise because then gaming could take place everyday and it would be difficult for the police to determine on a particular occasion whether the gaming is lawful or unlawful, because it is being done by way of a trade or business. I postulated to Mr Cheung the hypothesis of him playing Mah-jong at home with three friends. Mr Cheung's reply is of course the correct one which is, if those four players should be arrested and charged by the police, then all they need do is discharge the burden which is not a very heavy one, being one on the balance of probabilities, that what they were doing was social gambling and not unlawful gambling because nobody stood to gain from the playing of Mah-jong in that private apartment.

9. In the instant appeal, of course, things were far more complicated than four people caught playing Mah-jong in a private flat. Three police officers had given evidence that they had kept observation on the store and after an observation of some time, they then approached the store. They could not open the glass door of the premises because the door was either locked or held back by somebody inside the premises. This was despite one of these officers shouting out "Police, open the door".

10. Mr Kwong has criticized that finding by the learned Magistrate because he submitted that whether the door was locked or held back by a person should have been obvious to anyone, more so a police officer. I must say I have some sympathy with that submission, but I am not in a position, not having heard or seen the three police officers give evidence, to say that the learned Magistrate was wrong to have accepted their evidence that their intended entry into the premises was delayed and to have found that their delayed entry into the premises was sufficient to trigger the presumption under s.19 that the premises in question was a gambling establishment. Even if that aspect was not proved, as Mr Kwong readily accepts, the fact that gambling equipment was found in the premises could also have been sufficient to trigger the presumption. The evidence of the three police officers was that through a two-inch gap in the opaque glass door, they were able to observe ten odd persons gathered around the table and apparently playing some game of tiles. This was in contrast to the evidence of D7 who gave evidence that when he was there on the premises, there were people reading, eating noodles and watching television, but he did not pay attention to whether any persons were gathered at the table playing games with tiles. The evidence of the police officers were also in contrast with the evidence of D7 who said that there was no attempt to prevent the police from entering, on the contrary, the door was not locked and PW1 just came in and threw himself onto the table where the tiles were placed, to stop people from carrying on with whatever they were doing.

11. D7's evidence was rejected by the learned Magistrate. It was rejected because she found him to be evasive and unreliable. She gave four reasons for disbelieving him which were attacked by Mr Kwong. Of those four reasons, only one was in a sense supported by Mr Cheung and that was the one reason which was that as D7 was seated at another table, he could not have observed that the table with the tiles had piles of banknotes comprising $1000 and $2000. Mr Cheung said this was a valid reason because D7's evidence was in fact that he never paid attention to what was going on at the table where the tiles were placed.

12. Whether I agree with the four reasons that the learned Magistrate mentioned, the fact remained that she rejected D7's evidence. That conclusion was in a sense almost inevitable in view of her decision, which cannot be attacked, that she accepted the evidence of the three police officers. I have already mentioned the contra-distinction between the evidence of the police officers and that of D7. Mr Cheung also sumbitted that if the Defendants had wanted to adduce more reliable evidence and try to rebut the presumption, they could have called the landlord of the premises who could then have told the Magistrate more about the expenses of running the flat and the fact that those expenses were in no way connected with or contributed towards by any gambling which may have occurred on the premises. That is a fair enough comment. I think that the learned Magistrate was probably not happy about D7's evidence to the effect that sometimes when people won money at gambling, they would leave behind $100 or $200 towards the expenses of running a flat and if that amount was insufficient to pay for utility bills, then all the villagers would chip in to pay the expenses.

13. The net result of the Magistrate rejecting D7's evidence is that the presumption under s.19 was not rebutted. It follows then that a person who is found in the gambling establishment is presumed, until the contrary is proved, to have been gambling therein. It is based upon those two presumptions that the learned Magistrate arrived at the conclusion that these Appellants were gambling in a gambling establishment.

14. For the reasons which I have given, the appeal against conviction is dismissed.

15. Each of the Appellants was fined $1000 and ordered to pay $500 costs and they also had confiscated the money which was found on their respective persons. They have now appealed against that sentence. Under s.19(4), it is presumed until the contrary is proved that any money found on a person who is found inside a gambling establishment is presumed to have been used for unlawful gambling. Section 26 of the Ordinance also gives the Court power to forfeit to the government any money, or gambling equipment, or property, used in or in connection with unlawful gambling.

16. The evidence by the prosecution is that upon the police party entering the premises, they observed some people who were inside taking banknotes from the table where the tiles were placed, and putting these banknotes into their pockets. Mr Kwong rightly submitted that these people were not identified and there was no way of knowing which Defendants had done that and which had not, and of the Defendants who did it, how much was taken from the tables and how much was originally in their pockets.

17. In so far as the 2nd Appellant is concerned, he did not bother to return to Hong Kong to prosecute his appeal, so I dismiss his appeal against sentence. In relation to the other four Appellants who are present, namely D1, D3, D5 and D7, their appeals against sentence are allowed to the extent that the fines of $1000 and the costs of $500 will remain as ordered by the learned Magistrate. However of the amounts ordered to be confiscated, which amounts were found on their respective persons, I order that only half of those amounts be confiscated and the other half be returned to them.