HKSAR v. HUI TSANG CHI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 810 OF 1997

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J U D G M E N T

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1. The Appellant appeals against conviction on one charge of engaging in bookmaking contrary to section 7 (1)(a) of the Gambling Ordinance, Cap. 348. The trial proceeded on the not uncommon basis of the admitted facts being put before the Magistrate, the exhibits being put before the Magistrate and submissions being made on behalf of the parties. The Magistrate thereafter convicted the Appellant of the charge. He announced his findings at the trial in this form:

"I convict the defendant of the offence of engaging in bookmaking. The two authorities to which I earlier referred on this issue are the case of R. v. Lam Chek-yin Cr. App. 496/82, a decision of Mr. Justice McDougall and R. v. Fung Sik-cheung Cr. App. 436/84 a decision of Mr. Justice O'Connor. In those two decisions their Honours took the view that an employee bookmaker carrying on a business of bookmaking by way of trade or business is a principal offender and not the aider and abettor of the owner. In this case I note that the further evidence against the defendant is that he received a commission and not a salary.

The defendant will face a custodial sentence. His counsel will address me on penalty."

2. When notified of Appellant's intention to appeal, the Magistrate reproduced the findings he had given orally in court. The Appellant submitted that the Magistrate had in effect made no findings at all. What he did was announce the conviction, refer to two cases on which he relied and say at the end that he "notes" evidence that defendant was working for commission rather than wages. That is the sum of his findings.

3. Section 114(b) of the Magistrate's Ordinance Cap.227 provides as follows:

"When a notice of appeal has been given to the magistrate's clerk, the magistrate whose, conviction, order of determination is the subject of the notice of appeal shall prepare a signed statement of his findings on the facts and other grounds of his decision ..."

4. Learned Senior Counsel argued today with some force that it is not enough for the Magistrate simply to proceed to convict on admitted facts without having made any specific findings, or stating what inferences he has drawn from those facts. Specifically, there were no findings about the elements of the charge and on what basis he found Appellant guilty of bookmaking. This is relevant in terms of the definition of bookmaking, because it appears clear that although Appellant may have been receiving bets, which was one of the ways in which bookmaking can be effected, there was no finding by the court as to whether there was evidence that he engaged in that business for himself, or for somebody else, by way of trade or business.

5. The Respondent dealt with this point by saying that since all courts are now on a full recording system that there is no need to have a Statement of Findings as there was in what he terms "the old days". That cannot be right. Certainly, because all courts are now on a recording system life is simpler for Magistrates and judges who no longer need laboriously refer to, or regurgitate sections of the evidence, but can simply refer to relevant parts of the transcript or incorporate their oral findings made in court as the whole or part of their Statement of Findings.

6. However, in a case like this that proceeded on admitted facts it is still incumbent on the Magistrate to make findings stating the basis on which he convicted the defendant. An added complication in this case is that it is not clear what status the defendant's cautioned statement was accorded at the hearing, or in the Magistrate's deliberations. It would appear, although unclear because no finding spells it out, that the cautioned statement was not before the Magistrate in terms of Section 65(c) as were the other items of evidence Exhibit Nos. 1 to 27.

7. The brief facts are very brief. The Magistrate does not state whether he relies solely on those facts in coming to his decision. If he does, he should have stated what view he took of them in deciding whether Appellant was engaged in bookmaking by way of trade or business, because there are no admissions on that point in the brief facts. If the Magistrate was assuming that the cautioned statement was incorporated as part of the Section 65(c) admission, he is obliged to state what part or parts of that statement he relies on in assessing Appellant's guilt.

8. I was referred to an exchange recorded between the court and defence counsel at the hearing, where the Magistrate said that he is not relying on at least one aspect on the cautioned statement, but from the "findings" it is unclear whether he accepted that the remainder was included under the S.65(c) admission or not.

9. While S.119(1) of the Magistrates Ordinance, Cap.227 empowers a judge on appeal to confirm, reverse or vary a magistrate's decision and make such other orders as are deemed just, the section does not empower the court to make primary findings of fact.

10. In this case I cannot be satisfied that the findings, so-called, substantiate this conviction.

11. Accordingly I allow the appeal against conviction and sentence and remit the case to the Magistrate with a direction that he state his findings on the evidence before him in relation to S.7(1)(a) of the Gambling Ordinance Cap. 348 or, alternatively S.7(1)(C) of the Gambling Ordinance, Cap.348, and announce whether or not a conviction is entered and on what basis.

12. Bail extended to Appellant on amended terms as set out in the bail form.

13. Appellant to appear before Magistrate as directed by Magistrate for delivery of verdict, and sentence if appropriate.