TSOI PING KWAN v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL No. 962 OF 1987

_________________

______________

J U D G M E N T

______________

1. The appellant was jointly charged with two others that, contrary to section 7(1)(a) of Cap. 148, on the 10th May, 1987 at Flat C, 25th floor, No. 378, Queen's Road, Central, he engaged in bookmaking.

2. Very briefly the facts were that on the day in question a party of police with the necessary authorization entered the said premises where they found the appellant and two others. The appellant was, at the time, holding the handset of a telephone which was connected to a radio cassette recorder. Also in the room was another radio cassette recorder, a television set which was broadcasting the races, six betting slips and other items including a calculator. After securing the premises a police officer manned the telephone which the appellant had been using and he "received" a number of telephone calls from persons attempting to place bets with the person receiving the calls. These were recorded by a tape recorder found on the premises.

3. Transcripts of the tapes were made and translated and these were admitted in evidence, as Exhibits P24 and P25. An expert testified that Exhibit P25 could not have related to the 10th of May, 1987. The learned magistrate stated in his Findings of Fact that in deciding whether the appellant "at the material time" was a person engaged in bookmaking he was satisfied that the appellant was the licensee and occupier of the premises, the keys of which were found in the premises together with documents relating to the same. He then went on specifically to refer to an unidentified person spoke to a person who identified himself as "Ping Kwan" and who provided answers concerning an enquiry with regard to a running account in regard to betting (page 171 of the record and page 3 of the magistrate's Statement of Findings). The name of the appellant is TSOI Ping-kwan. There is no evidence on which day this particular call was placed but on the evidence, and this was conceded by Counsel for the Crown, this call could not have taken place on the day in question.

4. The only evidence of bets which callers were attempting to place on the day in question was when. the police officer manned the telephone after the police party had gained entrance to the premises and these appear at pages 144 to 148 inclusive of the transcript. At page 146 -the officer manning the telephone spoke to a caller who asked for "Ah Kwan" and who placed a bet and again on page 147 where the caller again asked for "Ah Kwan" but who did not place a bet as he did not think the voice of the person taking the call sounded like "Ah Kwan". Also on the same page's caller asked for "Ah Fai" but this caller too had doubts about the identity of the person he was calling and he hung up. The name of one of the persons in the room at the relevant time and who was jointly charged with the appellant was CHENG Hung-fai (the 2nd defendant in the court below and who was acquitted).

5. It was suggested by Mr Hampton for the appellant that the learned magistrate did not rely on the telephone calls asking for "Ah Kwan" and "Ah Fai" because he could not place sufficient reliance to the extent that he was sure that the "Ah Kwan" and "Ah Fai" the callers asked for was the appellant and that, therefore, he relied on the call referred to at page 171 of the record because on that occasion the caller asked to speak to "Ping-kwan" which contained two of the three characters of the appellant's name whereas at pages 146 and 147 the caller used only one character. Unfortunately, in doing what he did, the learned magistrate relied on an enquiry of a running account in regard to betting with "Ping Kwan" on a day other than the 10th of May, 1987. What apparently happened is that side A of the tape was first used to record calls, then side B, and then side A was again used which erased what had previously been recorded. This was why the call referred to on page 171 was not a continuation of the calls taken by the police officer but was on the tape and transcribed because it had not been erased by a further use of the tape. It was an understandable mistake.

6. The learned magistrate specifically found that the telephone call on page 171 was received on the day of the raid.

7. It is impossible for this Court to say with any certainty, in the circumstances of this case, that without relying on that telephone call, the learned magistrate would have come to the conclusion he did. In the circumstances, and not without some reluctance, I have come to the conclusion that the verdict is unsatisfactory and unsafe. The appeal is allowed and the fine is set aside.