HKSAR v. LI KA WAI

HCMA 664/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 664 OF 2015

(ON APPEAL FROM ESCC NO 1129 OF 2015)

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J U D G M E N T

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Introduction

1.  The appellant was convicted in the Eastern Magistracy before Mr Lee Shiu-ho, sitting as a Permanent Magistrate (“the Magistrate”) on a charge that between 21 May 2014 and 8 June 2014 engaged in bookmaking contrary to section 7(1)(a) of the Gambling Ordinance, Cap 148 (“the Ordinance”).  He was sentenced 12 months’ imprisonment and the Magistrate also ordered that cash totalling HK$417,000 found in his premises to be forfeited.

Reversal of Plea by the Appellant

2.  Before the trial, the appellant has in fact earlier pleaded guilty to the charge before another magistrate and has admitted the facts before he was convicted.  However, during mitigation, the presiding magistrate found that the mitigation put forward by the defence was inconsistent with the appellant’s guilty plea and hence he decided to set aside his conviction of the appellant and entered a plea of “Not Guilty” instead and the case was re‑fixed for trial.

Summary of the evidence

3.  Mr Jonathan Man, SADPP and with him Mr Ivan Cheung, SPP (Ag.), on behalf of the respondent, has succinctly summarized the case for both prosecution and defence in their written submission and I shall conveniently adopt it in this judgment as follows :-

“IV. Prosecution Case

5. As summarised by the Magistrate in his Statement of Findings, the entire Prosecution case was agreed to by the Appellant and no prosecution witness was called or required by the Defence for cross-examination[1].

6. By way of admitted facts, it was admitted that on 8 June 2014 the Appellant’s residence was raided by the Police. The television in the living room was switched on and turned to live horse racing broadcast. The following exhibits were seized from a coffee table in the living room[2] :-

(a) A notebook computer which was then connected to a website called www.citibet.net (‘citibet.net’);

(b) A stationery notebook with handwritten records in red and in blue;

(c) A Xiaomi mobile phone from which ‘WhatsApp’ messages between the Appellant and persons known as ‘Alex’ and ‘Willy’ were retrieved (‘WhatsApp records’);

(d) Four Samsung mobile phones and a tablet computer;

(e) Horse racing newspaper and magazine on the date of the raid;

(f) One calculator;

(g) Two pens, in red and in blue, as were the handwritings in the notebook.

7. A substantial amount of cash totalling $417,000 (‘Exhibit P10’) was found inside an unlocked safe inside a bedroom wardrobe[3]. The said cash was in the form of rounded notes, consisting of 390 pieces of $1,000 note and 270 pieces of $100 note[4], apparently neatly stacked inside the safe[5].

8. The Appellant was at all material times the holder of a betting account with the Hong Kong Jockey Club and the betting records of the account were produced in evidence[6].

9. The Prosecution adduced, under section 65B of the Criminal Procedure Ordinance, Cap. 221, an expert statement made by a gambling expert[7]. The expert provided evidence on the general situation of horse racing bookmaking and ball matches bookmaking in Hong Kong. Having analysed the WhatsApp records from the Appellant’s mobile phone, the expert’s evidence was that the Appellant had during the offence period received bets from persons known as Alex and Willy in the sum of $2,221,000[8].

10. It is the opinion of the expert that the Appellant played the role of the bookmaker[9]. Relevantly, as explained by the expert, the common practice of bookmaking in Hong Kong whether for horse racing or for ball matches would be for a bookmaker or who through the making use of an agent also called teng chai to deal with clients on matters including credit limit, receiving and placing bets, and the settlement of bets[10].

11. The Appellant’s cautioned statements were also admitted into evidence by way of admitted facts. On the day of the raid, the Appellant admitted to have onlybetted on horses through citibet.net[11].

12. In his video-recorded interview[12], which was also admitted into evidence by admitted facts, the Appellant stated the following which are of relevance : -

(a) A customer named ‘Mr Chan’ introduced citibet.net to the Appellant[13]. The password of the account was set by the Appellant himself[14].

(b) The Appellant admitted that he would pay and receive cash from ‘Mr Chan’ and the Appellant had collected $200,000 from ‘Mr Chan’ [15].

(c) The Appellant claimed that the stationery notebook seized by the Police was used by him to mark down the loans which he lent to his friends[16].

(d) The Appellant claimed that Exhibit P10 was his savings since childhood[17].

(e) Regarding the WhatsApp records, the Appellant claimed that the messages only related to tips for horse racing, betting ratios and odds of the Hong Kong Jockey Club, and the result of bets the Appellant placed.[18]

V. Defence Case

13. The Appellant elected to testify and there was no other Defence witness. As summarised by the Magistrate in his Statement of Findings, the Appellant’s evidence was essentially that : -

(a) The Appellant worked in sauna parlours until May 2014. His last position was a manager earning $20,000 odd per month exclusive of tips. Since then, he became unemployed. Such was the explanation given by the Appellant for the finding of Exhibit 10 in the unlocked safe.[19]

(b) The Appellant accepted that on the day of the raid he was betting on an illegal betting website, i.e. citibet.net, on horse racing and on football and basketball matches.[20]

(c) The Appellant claimed that he was introduced to citibet.net by a person named ‘Mr Chan’ who was also referred to as ‘Fei Chai’ in the WhatsApp records.  The Appellant asserted that ‘Alex’ and ‘Willy’ would settle their winnings and losses directly with ‘Mr Chan’ and not with him.  The Appellant stated that the WhatsApp records were merely his communications with ‘Alex’ and ‘Willy’ in that he would help them place bets with citibet.net after they had told him what they wanted to bet.  ‘Alex’ and ‘Willy’, the Appellant said, were friends he came to know when they were customers at the sauna parlour where the Appellant worked.[21]”

The Magistrate’s Findings

4.  In his Statement of Findings, the Magistrate accepted the undisputed prosecution evidence and the gambling expert’s evidence and his conclusion upon analysis of the appellant’s WhatsApp records was that the appellant had received bets totalling $2,221,000 from persons known as “Alex” and “Willy”[22].

5.  As for the defence case, the Magistrate noted the discrepancies in the appellant’s version in the cautioned statements and in his own evidence.  The Magistrate was of the view that the explanation given by the appellant for the WhatsApp records was plainly inconsistent with the content of those records.  The Magistrate declined to attach any weight to the exculpatory explanations made by the appellant in his cautioned statements or in his testimony in court.^[23]

6.  The Magistrate’s basic finding of fact is set out in para 53 of his Statement of Findings^[24] : -

“Having regard to the totality of the evidence before me, the only reasonable and irresistible inference I can come to (and I so find) is that the Defendant had during the offence period received such bets totalling $2,221,000 from Willy and Alex as agent (and in the role of a bookmaker as opined by the gambling expert) for and on behalf of his principal bookmaker by way of trade or business and not otherwise.”

Appeal against Conviction

7.  Mr Andrew Bruce SC, on behalf of the appellant, has raised two grounds of appeal against conviction:

8.  The first ground (Ground 1) was that the conviction by the Magistrate on the basis that the appellant was an agent of the bookmaker was unsafe and unsatisfactory in that:-

(1)   there is no offence known to law of engaging as a bookmaker as an agent of the bookmaker;

(2)   (alternative to (1)), the Magistrate erred in finding or otherwise failed to articulate how and under what circumstances the appellant acted as an agent of the bookmaker;

(3)   (alternative to (1)), there was no evidence upon which an inference could be drawn as to the scope of the agency as between the appellant and the bookmaker and whether the conduct of the appellant operated within the scope of such an agency;

(4)   (alternative to (1)), there was no evidence upon which an inference could be drawn that as an agent, the appellant bound the bookmaker as to the wager and bet apparently accepted by the bookmaker from the appellant as an agent.

9.  The second ground (Ground 2) was that the Magistrate fell into error in finding against the appellant in terms of credibility based on the fact that the appellant only revealed for the first time in his testimony something which was not mentioned in his interview with the police.

Ground 1

10.  Mr Bruce SC submitted in this ground that the charging provision in this case, namely, section 7(1)(a) of the Gambling Ordinance does not create criminal liability upon the basis that a person is the agent of a bookmaker.  He argued that the only basis upon which agency might arise came from the decision of R v Lam Shek Yiu [1982] HKC 314 where the Court of Appeal held that an employee might assist a bookmaker and might create criminal liability under section 7(1)(b) of the Ordinance.  The aiding and abetting provision in section 7 appeared in section 7(1)(c) which has now been repealed.

11.  Leading counsel further submitted that there was no evidence that the bookmaker ever had any relationship with the appellant other than the appellant was a person who operated an account through Mr Chan on the citibet website.  There was no evidence that the bookmaker ever contemplated the appellant to be his agent of bookmaker and one of the important concepts of the law of agency is that an agent has the authority to bind the principal and the essence of bookmaking is the acceptance of the risk.

12.  The respondent’s reply to this ground is that as a matter of law, an agent of a bookmaker can perfectly be convicted of the offence for “Engaging in Bookmaking” under section 7(1)(a) of the Ordinance.  The Magistrate was entitled to as he did find that the appellant received bets as agent on behalf of his principal bookmaker by way of trade or business at the material time and found that he engaged in bookmaking.

13.  After carefully considered the submissions by the respondent and without rehearsing the arguments of Mr Bruce SC in full, it is clear that the leading counsel’s argument cannot stand as it went against all the established authorities.

14.  The respondent had referred me to Section 7(1)(a) of the Gambling Ordinance  which reads: -

‘(1) Any person who- (Amended 53 of 1981 s. 4)

(a)   engages in bookmaking, whether on one occasion or more than one occasion; or (Amended 12 of 2002 s. 4)

(b)   ...

(c)   ...

commits an offence ...” (emphasis added)

Therefore, it is clear from the wording of this section that it applies to “any person”, be it principal bookmaker, agent, or employee who engages in “bookmaking”.

15.  In R v Lam Shek Yiu [1982] HKC 314, it was argued by the applicant that since only a principal bookmaker could be said to be acting “by way of trade or business”, his employee could not be convicted of the offence of “Engaging in Bookmaking”.  McDougall J ruled that:-

“An employee who receives a bet or bets on behalf of his employer who runs a bookmaking business receives it or them no less in the way of trade or business than does his employer. The words relate to the purpose for which the bet or bets are received, and this is so irrespective of whose trade or business it is by way of which it or they are received.”

16.  In HKSAR v Chu Kam Yiu & others (2002) 5 HKCFAR 591, at para. 27, Silke NPJ apparently agreed with McDougall J and said that the reasoning also applied to the agent of the bookmaker:-

“28. The same reasoning would apply to the agent of a person who runs a bookmaking business but not, as Mr Ching Y Wong submits, to the agent of the punter which is all the respondents here, if anything, were.”

The Court of Final Appeal’s further held in para 30 at 603B that:-   

“ ‘accepted the bet as his own’ would not exclude an agent of or an employee of a bookmaker who receives a bet on his principal’s, or his employer’s, behalf.”

It is thus clear from the judgment of the Court of Final Appeal that it is open to convict a person under section 7(1)(a) of the Ordinance even if he only receives bets as agent on behalf of his principal provided that he does so by way of trade or business.  This judgment was later also followed by the Court of Appeal in HKSAR v Ip Tin Wong CACC 241/2003.  Cheung JA had said at para 77: -

“The judge had clearly found that the applicants were bookmakers. He also said that they were ‘at least’ operating as ‘Tang Jai’. In our view whether they were ‘Tang Jai’ or merely agents for bookmakers is irrelevant for the purpose of the conviction. Even as agents for the bookmaker the applicants would be guilty of the offence of bookmaking: See Paras. 27 and 28 of the judgment of Silke NPJ in Chu Kam Yiu and others.” (emphasis added)

17.  Mr Bruce SC sought to criticise the Magistrate’s finding by resorting to the civil law concept of the law of agency in his analysis.  The respondent quickly pointed out that in HKSAR v Fung Hok Cheung [2008] 5 HKLRD 846, the Court of Final Appeal has already rejected the argument that concepts of civil law should be applied to the criminal law.  It was held in that case that the application of civil law concepts to criminal matters has often been held to be of no or limited application. 

18.  However, mere proof of the appellant receiving such bets even as agent or employee on behalf of a principal bookmaker would not be sufficient.  The Magistrate has to be satisfied that the appellant received bets not only as an agent of a bookmaker but also by way of trade or business on behalf of his principal bookmaker. 

19.  The respondent referred to HKSAR v Kam Susanto CACC 542/2003 where the Court of Appeal held the fact that the applicant was receiving a commission from the bookmakers was a sufficient basis to find that the applicant was engaging in bookmaking by way of trade or business. (see paras 55-64)

20.  The Magistrate was therefore entitled to find that the appellant, in receiving a commission of 2% for the winnings and losses of bets of “Alex” and “Willy” he placed with citibet.net, had received bets by way of trade or business and as an agent for a bookmaker.

21.  There is accordingly no merit in Ground 1.

Ground 2

22.  In this ground, the appellant complained that in assessing the credibility of the appellant and coming to the conclusion that the appellant  has not been honest with the court and was apparently hiding the whole truth, the Magistrate had engaged in impermissible reasoning in para 31 of the Statement of Findings in that the appellant’s claim that the stationery notebook (Exh P3) was related to “shares trading” or “mah-jong playing” arose for the first time in his testimony in court and was not mentioned by him in his cautioned interview by the Police.  It is submitted that this is a forbidden form of reasoning: Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600; HKSAR v Chan Kau Tai [2006] 1 HKLRD 400; HKSAR v Lam Sze Nga (2006) 9 HKCFAR 190

23.  What happened in this case was that the appellant’s version in the cautioned interview was however materially different and he said Exh P3 was a record of loans borrowed and made by him. 

24.  The respondent pointed out that it was undisputed that the appellant did receive bets from “Alex” and “Willy” and apparently communicated with “Alex” and “Willy” for such purposes via WhatsApp. The gambling expert had identified the names of “Alex” and “Willy” and the figures corresponding to them written on Exh P3 could be matched exactly with the WhatsApp records found in the appellant’s mobile phone[25].  The respondent submitted that the presence of identically matching figures relating to the appellant’s settlement of bets with “Alex” and “Willy” on  Exh P3 could not have been a mere coincidence and such objective evidence contradicted the appellant’s account of what he used Exh P3 in his cautioned statement.

25.  In my judgment, under the circumstances, the Magistrate was perfectly entitled to take into account the marked inconsistencies in the appellant’s account as to his use of Exh P3 and found that the appellant was not honest with the court and was not telling the truth. 

26.  The respondent has properly referred me to Li Siu Hing v HKSAR FAMC 32/2007, in which the Court of Final Appeal held that cross‑examination of a defendant based on the inconsistency between what was said under caution and what was said at trial would not involve any violation of the defendant’s right of silence:- 

“6. the Court drew a distinction between cases where the accused exercises his right of silence and cases where he makes statements which expose him to cross-examination as to their inconsistency. Mr Justice Mortimer NPJ stated:

‘We may add that, of course, if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence.  The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.’ [3: HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600 at 622, §57]”

(emphasis added)

27.  In the present case, it is clear that the appellant was not remaining silent or just making a general or brief statement about the figures appeared in Exh P3 during the interview and he just sought to elaborate further on this subject in his testimony in court.  What really happened was in the cautioned interview, the appellant had voluntarily offered a detailed explanation on the meaning of the figures which had flatly contradicted with his evidence in court.  In my judgment, the Magistrate was therefore fully entitled to consider the inconsistent statements and make adverse findings against the appellant in terms of his credibility as a witness of truth. 

28.  There is also nothing in this ground. 

Appeal against Sentence

29.  Mr Bruce SC has raised two grounds in his Perfected Grounds of Appeal to argue that the sentence of the appellant should be reduced:- 

(1)   Firstly, it is submitted that credit should have been given to the appellant’s earlier guilty plea before another Magistrate albeit the plea was not accepted by the court (Ground 3); and

(2)   Secondly, the Magistrate was not entitled to take into account the effect of the conduct of the appellant on the legal monopoly of the Hong Kong Jockey Club. (Ground 4)

Ground 3

30.  As said, although the appellant had earlier entered a plea of guilty to the charge before another Magistrate, his mitigation was inconsistent with his guilty plea and was not accepted by the court. What was put forward in mitigation was that the appellant claimed he was only a mere conduit in passing the bets he received from persons known as “Alex” and “Willy”. It was in fact a denial of an element of the offence, namely the element of “bookmaking” which requires proof that bets were received, etc, “by way of trade or business”. 

31.  I fail to see the logic why the appellant would be therefore entitled to some form of discount in sentence and should be treated in any way differently from those pleading not guilty and convicted after trial.  Those who are convicted after trial would stand to lose the customary 1/3 discount as a matter of normal practice.  The respondent criticised this argument and submitted that if that were to be the case, the law would be seen as encouraging defendants to enter guilty pleas and then put forward fanciful mitigation in the understanding that even if such mitigation was inconsistent with the guilty pleas, full or some discount would yet still be given to their guilty pleas.  

32.  The Magistrate duly convicted the appellant after trial and was entitled to refuse to give any further discount to the appellant. As a matter of law and practice, the appellant’s earlier guilty plea which was already regarded as a nullity by the court could not possibly be utilised as any valid ground for reduction in the sentence when he was subsequently convicted after trial. 

33.  Although the appellant did not raise this argument, I have considered whether a sentencing discount should still be given to the appellant as the defence did not challenge the prosecution case during the trial. In the end, I came to the conclusion that this issue was very much a matter for the sentencing court’s discretion and that it was necessary to decide to what degree the shortening of trial really represent any substantial saving of time and resources so far as the overall preparation of the case for trial was concerned. This will always be dependent on the particular circumstances of the case in question. Bearing in mind in this case, the prosecution case about the raid of the appellant’s premises and the seizure of the exhibits is effectively unchallengeable, so it is not surprise that there was no challenge to the prosecution evidence. I can well understand why the Magistrate did not exercise his discretion to reduce the sentence of the appellant.

34.  This ground should be dismissed.

Ground 4

35.  The appellant submitted in this ground that the Magistrate erred in taking into account that a relevant sentencing factor was the protection of the gambling monopoly of the Honk Kong Jockey Club.  With respect to Mr Bruce SC, I found it difficult to understand the force of this argument.  The Magistrate said:

“82. On top of affecting the legal monopoly of HKJC, bookmaking has, I think, its harmful effect on society as a whole.”[26]

36.  The respondent replied that the legal monopoly of the Hong Kong Jockey Club would be central to the regulating of gambling activities in Hong Kong, it being the only organisation authorised to receive and hence regulated in receiving bets for both gambling and lottery in Hong Kong.  The appellant’s bookmaking activity in the present case clearly not only affected the legal monopoly of the Hong Kong Jockey Club but also most importantly presented a vice to the society as a whole.  The said matters are clearly matters which the Magistrate would be entitled to consider in determining the sentence against the appellant.

37.  The respondent also referred to the Court of Final Appeal’s decision in Ng Siu Chau v HKSAR (2000) 3 HKCFAR 62 at 65G-H when it commented on the philanthropic role of the Hong Kong Jockey Club that premises on its legal monopoly in gambling activities in Hong Kong : -

“Before dealing with these matters it is as well to bear in mind the role of the Club in horse racing matters in Hong Kong. It has a monopoly on these activities which it administers. Vast amounts of money are wagered on each race from the earnings of which the Club makes substantial payments by way of tax and, as a non-profit organisation, makes equally large if not larger donations to charity.”

Thus, it can be seen that the protection of the monopoly of the Hong Kong Jockey Club was wholly justified in the interest of the community as a whole against the evils of illegal and unregulated gambling activities. 

38.  I am of the firm view that there is no substance on this ground. The appeal against sentence is without merit and is dismissed accordingly.

Appeal against forfeiture

39.  Ground 5 was raised by the appellant as an attempt to challenge the Magistrate’s order to forfeit cash of HK$417,000 (Exh P10) found in an unlocked safe in a bedroom wardrobe when the police raided the premised of the appellant. 

40.  Mr Bruce SC in particular submitted that in so ordering, the Magistrate was either wrong in law or alternatively, he had exercised his discretion wrongly as there was no connection between the cash found on the premises of the appellant and his gambling given, in particular, that the gambling would appear to have been online gambling and neither on the day upon which he was arrested nor on any other day was there any necessary input of cash.’

41.  The respondent first pointed out that the appellant’s complaint under this ground that the Magistrate erred in the exercise of his “discretion” was misconceived as section 26 of the Gambling Ordinance was a mandatory provision and imposes an obligation upon magistrates to forfeit “any money ... which has used in or for or in connexion with or is or represents the proceeds of or is derived from unlawful gambling.”  Before the order was made to forfeit the money, the defence was also given full opportunity to make representations on why Exh P10 should not be forfeited.

42.  The Magistrate had explained fully why he came to the conclusion that the sum of HK$417,000 has to be forfeited:-

“56. To start with, I have rejected Defendant's evidence and answer in the VRI that Exh.P10 was his savings as he claimed.

57. To the contrary, I found Defendant agent for bookmaker, receiving bets as much as $2,221,000 during the offence period. In WhatsApp records, he had, from time to time, informed Alex and Willy of the outstanding settlement amounts due to or from them by a particular day (and I have rejected his evidence that one Mr Chan would settle directly with them).

58. Defendant was admittedly unemployed on the day of police raid. When police raid his premises, he was found betting on horse races through citibet.net. At that time, Exh P10 was placed inside an ‘unlocked’ safe inside bedroom wardrobe. Such large amount of cash was not put into Defendant’s various bank accounts despite he admitted had a number of bank card and accounts.

59. Against the expert evidence I accept of, inter alia, how agent of bookmaker works, including settlement of bets, Defendant had admitted in the VRI that he had, from time to time, collected and paid cash to one Mr Chan connected to citibet.net and he had once received as much as $200,000 from Mr Chan (and I reject his claim of spending it all away).

60.       On the totality of the evidence I accept, the only reasonable and irresistible inference that this court can come to (and I am satisfied) is that Exh.P10 has been used in or for or in connexion with or is or represents the proceeds of or is derived from unlawful gambling. As such, under s.26 of GO, I am obliged to order its forfeiture and I so order.”

43.  The appellant’s major complaint was that there would be no realistic connection between the monies found and the appellant’s bookmaking activities as they were all on‑line gambling. 

44.  The respondent criticised the argument as it was premised upon a narrow and restricted interpretation of the ambit of section 26 of the Ordinance.  The respondent has conducted a diligent research on the matter and referred to the court a number of authorities and submitted that a logical and sensible statutory interpretation of the wordings of the section clearly supports that the section is intended to be of a very wide import and is plainly wide enough to catch the circumstances in the present case.

45.  I can do no better than to quote the respondent’s submission on this point  in full:-

“76. In R v Lai Chin Hung [1980] HKLR 115 the Court of Appeal at 119 considered that section 102 of the Criminal Procedure Ordinance, Cap. 221, contained ‘very wide words’[27]. Similar to the expressions ‘in connection with’, ‘used’, and ‘in respect of’ which appear in section 102(1)(a), (b) and (c) of that Ordinance, it is submitted that the words ‘used in or for or in connexion with or is or represents the proceeds of or is derived from unlawful gambling’ under Section 26 of the Gambling Ordinance should similarly be given a meaning of the widest import. This is particularly in light of the obvious fact that money involved in unlawful gambling may take and change into different forms from time to time. Were a narrow interpretation be applied, it would run counter to the object and utility of Section 26.

77. In Chalmers v The Queen [2011] VSCA 436, it was held that the word ‘used’ should be given its ordinary meaning of ‘employed, or made use of, for a particular end or purpose’[28]. It was further held that the expression is wide in scope and the scope of the words ‘in connection with’ would be wider than ‘used in the commission of’ an offence[29]. Recently, in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57, the Court of Appeal considered the provisions of Section 56(1) of the Dangerous Drugs Ordinance, Cap. 134, which employed similar expressions as those found in section 26 of the Gambling Ordinance. Macrae JA had this to say in paras. 33 & 34:

‘33. ... It would be absurd to suggest that only when the money was actually used, in the sense of paid out for some specific purpose connected with drug trafficking within this jurisdiction, could it be forfeited. ...

34. Such an interpretation of section 56(1) would significantly undermine the purpose and efficacy of the forfeiture provisions in circumstances where one might not be able to ‘pinpoint’ specifically whether the money had been given to a defendant as a reward for trafficking, or to support or sustain him while trafficking, or to enhance the impression that he was a bona fide foreign traveller on legitimate business when in fact he was trafficking, or for any other reason connected with a drug trafficking offence.

35. Accordingly, I would reject such a restricted interpretation of section 56(1)(a) of the Ordinance.’

78. The Court of Appeal in that case unanimously dismissed an appeal by the applicant who claimed that money found on him when he was intercepted for trafficking in dangerous drugs was not actually ‘used in the commission of or in connection with’ the trafficking offence.

79. In a tax case Nowegijick v The Queen [1983] 1 RCS 29, the Supreme Court of Canada said this:

‘The words ‘in respect of’ are, in my opinion, words of the widest possible scope. They import such meanings as ‘in relation to’, ‘with reference to’ or ‘in connection with’. The phrase ‘in respect of’' is probably the widest of any expression intended to convey some connection between two related subject matters.”[30] (Emphasis added)

It is submitted that the words “used” and “in connexion with” under Section 26 should be similarly understood and widely interpreted in line with the above cases.”

46.  After considering the above authorities very carefully, I totally agree with the submission by the respondent that the expressions used in section 26 is wide in scope and the scope of words “in connection with” is much wider in its context and meaning.  Therefore, after the Magistrate has rejected the appellant’s claim that the cash was his own savings, based on the circumstantial evidence of the case, including the total amount of bets involved was more than HK$2.2 million and the appellant was unemployed, the Magistrate was perfectly entitled to find, on the totality of evidence, that the cash of HK$417,000 found in the unlocked safe in the appellant’s premises had been used in or for or in connexion with or was or represented the proceeds of or was derived from unlawful gambling and therefore should be forfeited. 

47.  The appellant’s appeal against the Magistrate’s decision to forfeit the monies (Exh P10) is therefore dismissed.

Conclusion

48.  In conclusion, a Magistracy appeal is in the nature of re‑hearing and the appellate court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong” (see HKSAR v FOK, James Alistair [2015] 4 HKC 247).  At para 10 the test of plainly wrong is said to be as follows:- 

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, the finding was one that no reasonable magistrate could have reached.”

49.  The Magistrate has had the advantage of seeing and hearing the appellant and is in a better position to assess his credibility.  It is for that reason that an appellate court will only depart from a magistrate’s determination of the credibility of a witness (including the defendant) if it is “plainly wrong”.  In my analysis, the Magistrate did not commit any error in his assessment of the credibility of the appellant and had committed no fault in the course of analyzing and evaluating the evidence.  There is no merit on each and every ground of the appeal. The appeal against both conviction and sentence (including the forfeiture order) is therefore dismissed.