CHEN TA HOI AND OTHERS v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 700 OF 1986

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BETWEEN

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JUDGMENT

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1. This is an appeal against conviction by 15 appellants against a decision of a magistrate made on the 2nd June 1986 in respect of offences under the Gambling Ordinance. The appeals against sentence were abandoned.

2. The 1st appellant Chan Ta Hoi was convicted of assisting in the operation or in the management or other control of a gambling establishment contrary to section 5(c) of the Gambling Ordinance and was fined $5,000. The other appellants were convicted of gambling in a gambling establishment contrary to section 6 of tae same Ordinance. Those appellants were fined sums of between $500 and $800.

3. The evidence for the Crown was given by three police officers who went on the evening of the 24th March 1986, to carry out a gambling authorisation at the 7th floor of 580 Nathan Road which was a flat occupied by the Van Bond Association. These police officers laid an ambush outside the premises and waited for about ten minutes until 11:50 p.m. before two persons arrived who sought entry to the premises by ringing the door bell. At this stage the police officers moved towards the door to gain entry to the premises, but the door was held against them, although the police officers had revealed their identity. Eventually one of the police officers kicked the door open and gained access. Inside they found 23 persons including the appellants who were taken to the police station with the other two persons who had arrived when the police made their move.

4. Various items of gambling equipment were found on the premises including 39 playing cards on a table in the reception room, 13 playing cards under a chair next to the telephone in that room, 175 chips, 4 dice and a plastic banker.

5. Upon the evidence found, the appellants were arrested, reliance being placed upon section 19(1)(c) of the Gambling Ordinance which provides-

 

is shall be presumed until the contrary is proved that the premises or place are or is a gambling establishment."

 

Section 23(2)(a) relates to the entry by police officers by force of premises under a gambling authorisation.

6. The first appellant admitted that he was a member of the staff of the premises and was responsible for providing services to the Association. Although the 14 appellants the subject of the first charge claimed to be members of the Association, no membership cards were produced. The 1st appellant however, did produce a record of his membership. No money was found on the table where the 39 cards were placed, but a sum of $130,841.20 was found on the persons of those who were present. The 1st appellant had in his possession keys to the outer and inner doors of the premises. A business registration certificate was found at the premises and there was a sign on a wall which said that if members wanted to play games, they should use chips and not cash. There were two television sets in the reception area, one of which was for a closed circuit television camera. One police officer said that he found a Chinese chess set ready for play on a table in another room and four other chess sets were packed away in cupboards in the same room.

7. The 1st appellant gave evidence that he worked at the premises to provide drinks and refreshment. He said he did not receive a salary, but obtained profits from the refreshment sales. The 1st appellant also said that members were allowed to play chess, mahjong and cards, but were only allowed to use chips as the games were for amusement only. The 1st appellant denied that he had tried to prevent the entry of the police officers to the premises. He said that the membership fee for the Association was $50 per month. When the police arrived, the lst appellant said that members were playing various games including chess. He called one witness, D.W.2, who testified that he was the owner of the property, having purchased the flat for $400,000.00, after which he offered the premises for the use of the Association of which he was a founder member. The Association started with about 100 to 200 members. He said that the premises were used by members to meet friends, to do business, and as a place of amusement after work. He referred to the fact that there was no lease and that for the first two years, the premises were to be rent-free. The premises were operated by his brother-in-law and by the 3rd appellant.

8. None of the other appellants elected to give evidence or called any witnesses on their.behalf.

9. The learned magistrate in his statement of findings made 13 findings of fact which are set out in the record on pages 66 and 67 which read -

10. There was no dispute that gambling equipment was found on the premises and that the appellants were physically present there. Further it is clear that entry was obstructed.

11. The learned magistrate said that not only did the presumption under section 19(1)(c) arise, but that the presumption under section 19(2) also applied - section 19(2) reads-

"        Where in any proceedings under section 6 it is proved that a person was found in a gambling establishment or that a person escaped from a gambling establishment on the occasion of its being entered under section 23(2)(a), such person shall until the contrary is proved be presumed to have been gambling therein."

12. After the learned magistrate rejected the evidence of the 1st appellant and made a finding that the premises were a gambling establishment, he went on to say that the presumptions could be rebutted on a balance of probabilities. In his statement of findings at page 70 of the record he said:

"That there was no positive evidence where each person had been in the premises immediately before the police entered and that the police could not say what each person had been doing immediately before the police entry is not of itself sufficient to rebut the presumptions under section 19 on charge A. Such in approach overlooks the purpose of a presumption, is an emasculatory approach to interpretation and contrary to the principles in section 19 of Cap. 1. Approaching the evidence on a totality basis, considering the layout and organisation of the premises, the number of persons There and Dl's evidence of the Association activities the overwhelming inference was the premises were open, kept and used for the purposes of or in connection with ambling and that was the reason people came there. This was not a "for amusement only" situation."

He also considered the provisions of section 3(2) of the Ordinance which provides-

"3. (2)      Gaming is lawful if the game is 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 a player of or at the game."

The learned magistrate held that the section did not apply to the facts of the present case as it was not a social occasion. He also made reference to the different coloured counters that had been found which he said indicated that they had different values which also led him to the conclusion that the premises had been used as a gambling establishment. He held that the appellants had not rebutted the presumption.

13. With regard to the 2nd charge, the learned magistrate found that the 1st appellant had assisted in the management by collecting membership fees paying some of the outgoings and seeing to the needs of members. By his day to day activities and his possession of the keys, he found that the 1st appellant knew that the premises were a gambling establishment.

14. Mr. Hampton, counsel for the appellants referred to section 2 of the Gambling Ordinance with regard to the definition of 'game' and 'gaming' which where relevant reads :

Mr. Hampton argued that the definitions should be accorded a restrictive meaning and contended that the type of game that one would consider as part of gaming, would be mahjong, paikow or playing cards, whilst chess would not come in this category. On the other hand the learned magistrate considered that the definition should be given a wide meaning. I agree with the learned magistrate for the words in my judgment must be construed in the light of the section which says "the playing of or at any game".  I do not, therefore, accept Mr. Hampton's interpretation that the definition should be given a restrictive meaning.

15. Mr. Hampton then submitted that section 3(2) does not require the playing of a game to be only for amusement and without stakes, but that it is irrelevant whether or not the game is being played for money. The nub of his argument is that for the convictions to be upheld, it is necessary to establish that the trade or business that was carried on was for the promotion of the game. He also asserted that section 17 is not apposite to section 3(2). Section 17 where it is relevant provides:

                "In any proceedings under this Ordinance -

However, in the context of Section 3(2), 1 consider that section 17 must be relevant.

16. Ground 1(c) of the Grounds of Appeal reads:

17. With regard to this ground, Mr. Hampton drew my attention to the words of Sir Alan Huggins in Chan Yuet Kwan and Clan Yue Kuen v. R.⁽¹⁾ with regard to the matter of inferences to be drawn from primary facts which reads -

"An inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be draw from the facts on which it is based is one of guilt, for where primary facts admit of two inferences, one of guilt and one of innocence, they can give rise to no more than suspicion, and if suspicion be added to suspicion, the total can be no more than suspicion."

18. In he instant case, no specific finding of fact was made by the learned magistrate with regard to the issue of the counters which I have referred to before, but he clearly drew an inference as I read his findings. Again no specific finding was made that his was nor a social occasion for which no definition is provided by the Ordinance. Mr. Hampton in this respect cited Leung Shui & Ors. v. R. ⁽²⁾, where the facts were as follows :-

"         Police visited the 11th floor of a hotel and found 5 persons playing sap ng wu in one room and 4 persons playing mahjong in each of 4 other rooms. Gambling equipment used had been hired out by the hotel for a fee and normal room service was provided, if required. The three appellants, two of whom were working as waiters and the third as an amah on the 11th floor of the hotel were arrested and subsequently charged with and convicted of assisting in the operation, management or other control of a gambling establishment.

 

            On appeal the material issue which the court had to consider was whether the hotel rooms came within the definition of "gambling establishment" contained in section 2 of the Gambling Ordinance.''

Cons J. in his judgment at page 547 and 548 under the heading "Promoting or conducting by way of trade etc." had this to say :-

"This part of the subsection has given me considerable anxiety, for there is no doubt that the guests of the hotel that evening were not quests in the normal sense in which that word is used in relation to hotels, that is, they were not genuine travellers or persons having no other accommodation for the night. They were persons who had gone there deliberately for the purpose of gaming. And this fact was well known to the hotel. Yet on the other hand all that the hotel did outside its normal line of business was to lay in an unduly large stock of mahjong tiles. Does this then amount to "promoting by way of trade or business"? The answer, I think, is to be found in subsection (4). The words "promoted or conducted by way of trade or business" are to be found three times in section 3, that is in subsections (2), (3) and (4). Each time the phraseology is identical, until we come to the last. there the words are followed by the qualification

 

'	otherwise that to the extent of the charging of a fee not exceeding the prescribed amount for the hire of any set of tiles'.

 

This indicates that the legislature intended the general use of the words in question to cover the hiring out of titles and other gaming equipment. Otherwise there would be no need for this last specific exception. It does not follow that every hiring will necessarily take a hotel keeper outside the provisions of the subsections. It is perhaps a matter of degree and will have to be decided in each case according to the circumstances. In the present case equipment had been hired to least four of the five rooms occupied. The evidence showed this to be a regular feature of the Hotel's business. These factors are sufficient.

 

For this reason I am satisfied that the Mayfair total was that evening promoting gaming by way of trade or business."

19. Mr. Hampton contended that the $50 membership fee was received by the Association by way of trade or business, in the sense that it was collected for the running of the Association, but did not constitute the promotion of a game whilst there was no evidence before the Court of hiring of gambling paraphernalia or equipment as was referred to and found by Bewey, J. in the case of Wong Kar-kui and Ors. v. R.⁽³⁾

20. Dealing with these matters, it is pertinent to observe certain findings by the learned magistrate which appear at page 71 of the record where he says :-

"Whilst it may be the various persons regarded visiting to the premises as a social occasion, in reality they were there for gambling. Whilst the premises were private (as opposed to public) premises, the Association was conducting a business, the consideration for entry was the $50 membership fee and the equipment was provided by the Association. The provision of variously coloured counters indicates the counters have different values. Such would enable the Association to draw a "commission" by "selling" counters to members or by charging a commission on the counters when they are returned at the end of the game. Similarly different colour counters assist in the "squaring" of accounts at the end of a game. If play was for amusement only there would be no need for different colour counters.''

Prior to that he had made a reference to the evidence of the 1st appellant that the refreshment he provided was very basic and apart from the games and a television set amusement facilities were limited. Although the 1st appellant referred to the provision of mahjong and dominoes games rooms, no mahjong equipment or dominoes were apparently found on the premises. He summarised his conclusions in his admirable statement of findings in the following words at page 70 of the record:

21. It is evident from the findings of the learned magistrate that the premises were private premises which were run by the Van Bond Association. A membership fee of $50 per month was payable. Apart from the general running expenses this sum was also received for the promotion of gaming by way of trade or business. I found Mr. Hampton's submission on this issue to be unrealistic. 23 persons including the appellants were found on the premises where gambling equipment was found. Counters were found from which it can be reasonably inferred that they represented winnings. I am unable to agree with the submission of Mr. Hampton that the appellants were gambling on a social occasion for the evidence conclusively points to illegal gaming having taken place. No evidence was given by the appellants so that the magistrate was left with the evidence given by the prosecution witnesses the 1st appellant and D. W. 2 to decide if the presumptions had been rebutted and he found no such evidence to that effect. Although, as I have said, social occasion is not defined in the Ordinance, it was not envisaged in the particular circumstances of this case that the gambling that took place could be other than illegal.

22. With regard to Ground 1.(c). the argument that the magistrate should have made a specific finding, is not in my judgment necessary. It was a perfectly justifiable inference to draw from the evidence which was, as I say, not rebutted.

23. Quite clearly, the totality of the evidence pointed irresistibly to illegal gaming and that the Association was carrying on business for this purpose. In no way can it be said that the convictions were either unsafe and unsatisfactory. The evidence in fact was overwhelming with the result that the appeals by the appellants in respect of the 1st charge will be dismissed.

24. There remains a final ground of appeal with regard to the 1st appellant that the 2nd charge was bad for duplicity. Particulars of the charge read :-

"CHEN Ta-hoi, you are charged that on the 24th day of March, 1986, at Van Bond Association, 580 Nathan Road, 7th floor, Yaumati, Kowloon, in Hong Kong, you did assist in the operation or in the management or other control of a Gambling Establishment."

Duplicity means quite simply that a defendant must not be charged with two or more separate offences. This issue was not argued before the learned magistrate, but was raised by him in his findings at page 72 of the record where he decided that the charge was not bad by reason of duplicity. He said :-

"Who charge covered all D1's activities. Section 5(c) of the Ordinance appears to create one offence (unlike sections 5(a) and (b)) which can be committed in all or either of the circumstances set out therein and is akin to a charge under section 139(b) of the Crimes Ordinance Cap. 200 which would not be bad for duplicity by charging "did manage or were otherwise in charge or control of premises kept as a, vice establishment."

It is clear that this issue can be raised on appeal although not argued in the Court below see Cheng Chun Wah v. R. ⁽⁴⁾ which was cited by Mr. Hampton where Addison, J. at page 7 said:-

"        Although the matter as to duplicity was not taken in the magistrate's court it is one which can be taken on the appeal. See Archbold, 40th Edition para. 49; R. v. Wilmot (1934) 24 Cr. App. R 63, 68 and Mallon v. Allen (1963) 3 All E. R 343.

25. In the case of Mallon V Allen Lord Parker, C.J. said at page 84:

"In those circumstances it seems to me that these informations were bad for duplicity. It is, of course, unfortunate that the point was never taken at the very outset before the justices and indeed was never taken before them at all, but only in this court. It is, however, a point which, as it seems to me, goes to jurisdiction, and if it is a good point, it is good whenever it is taken."

26. Mr. Hampton referred me to a Court of Appeal decision Tang Hang Chung & Ors. v. R.⁽⁵⁾ which concerned offences under the Gambling Ordinance where it was held that assisting in the operation as distinct from assisting in the management of a gambling establishment were distinct offences. McMullin, V.-P. at page 9 of the judgment said :-

"..........In s.5 the operator is put in a category by himself, distinct from the person who manages or otherwise has control. It seems reasonable to suppose that the legislature viewed the operator as the person in overall control, the person with the final say in how, where and when, and even whether, the enterprise is to be carried on. He may be remote from the day to day running of the business which can be left in the hands of a manager or other lesser functionary below the manager. If that is the proper way to look at the section, it may be that a person who cannot be said to assist in the management of the business might nevertheless be said to assist in the operation thereof."

27. Mr. Reading who appeared on behalf of the Crown drew my attention to some English authorities, but they do not assist as I am in any event bound by the decision of the Court of Appeal. As a result I find the charge against the 1st appellant, was bad for duplicity. Accordingly the appeal of the 1st appellant is allowed, the conviction will be quashed and the fine if paid will be remitted.

28. Mr. Reading urged me to amend the charge under section 27 of the magistrates Ordinance. However it was held in Wong Man Shun v. R.⁽⁶⁾, a decision of the Court of Appeal which was cited by Mr. Hampton that save in exceptional circumstances, a charge should not be amended on an appeal, except in respect of minor particulars, as it would deprive an accused person of the protection of section 27 unless the case is referred back to the Magistrate for re-hearing.

29. However, I consider that this is an appropriate case to exercise my power to amend the 2nd charge by deleting the words "or in the management or other control" and I shall order that there be a re-hearing of this charge as amended before the same magistrate. The actual charge for clarification will therefore now read:

"        CHEN Ta-hoi, you are charged that on the 24th day of March, 1986, at Van Bond Association, 580 Nathan Road, 7th floor, Yaumati, Kowloon, in Hon Kong, you did assist in the operation of a Gambling Establishment."

(1) Criminal Appeal 212 of 1973

(2) (1977) HKLR 544

(3) (1982) HKLR 488

(4) Criminal Appeal No. 143 of 1980

(5) Cr. App. 565 of 1982

(6) (1980) HKLR 266