THE QUEEN v. LAM CHI-YAN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 747 OF 1988

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of keeping an unlicensed amusement game centre, contrary to Section 4 of the Miscellaneous Licences Ordinance.

2. The charge alleged that on the 25th of May 1988 at the mezzanine floor of Lok Chui Shing Amusement Game Centre in Tai Wai, he kept an amusement game centre otherwise than and in accordance with a licence issued under that ordinance. He was fined $3,000, order to pay $1,000 costs and the magistrate ordered forfeiture of the 14 machines which were kept on the premises contrary to the ordinance.

3. The Appellant does not appeal against the fine or the order for costs. He limits his appeal to the order of forfeiture. Mr Stevenson's principal submission on behalf of the Appellant is that the magistrate misdirected himself as to the exercise of discretion in ordering forfeiture. The answer to that submission is contained in the learned magistrate's ruling which he gave at the time he ordered the forfeiture and that is that the provision in the ordinance regarding forfeiture is mandatory. S 7A makes a contravention of S.4 an offence against the Ordinance and, insofar as it is material for present purposes, provides further as follows:

"The court shall on the conviction of any person of an offence under section 7(a) relating to an amusement game centre, order the forfeiture of any Machine seized by a police officer under section 6A, being a machine of a typed specified in paragraph (a), (b) or (c) of the definition of amusement game centre which was installed in the amusement game centre for the purposes of amusement, recreation or entertainment, unless the owner of the machine satisfies the court that there is special and exceptional reason not to order forfeiture."

4. The provision goes on to give an example. of what would be a special and exceptional reason. The example is that, where a machine has been stolen and the owner has reported the theft to the police as soon as practicable, a special and exceptional reason not to order forfeiture exists. The provision also goes on to provide that "ownership of itself of a machine by a person other than the person convicted or financial hardship to any person shall not be a special and exceptional reason".

5. The Appellant was at the time, a partner in a business which operated an amusement game centre at Tai Wai. He was not the licensee of the centre. The licencee of the premises was a Miss Law Pik-ying. A licence was granted in respect of the ground floor of the premises to Miss Law. When she first made application to the TV and Entertainment Licensing Authority, the body responsible for granting licences, the application  related only to the ground floor. She, however, later amended the application so as to include the mezzanine floor or as it is described in the correspondence between the parities, the cockloft. It was then discovered that part of the cockloft was an illegal structure and Miss Law was informed that she had either to apply for a change of user for the remaining part of the cockloft or exclude it from the application. She decided to exclude it and notified the Authority accordingly. Eventually a licence was issued to her in relation to the ground floor only for the use of 19 upright machines. A plan was also sent to her setting out the positions in which the machines were to be placed. The effect of the licence was that although, the machines up to the stipulated number could be replaced, they could only be operated in the part of the premises duly licensed for that purpose.

6. In this case no licence has ever been granted in respect of the cockloft portion of the premises and it was on that part of the premises on which the 14 machines, the subject of the order were found and seized by the police under S.6A The Appellant accepted responsibility for the operation of the machines in the cockloft when he pleaded guilty to the offence and it was quite clear from what was said before the learned magistrate that through the arrangement between himself and Miss Law he was well aware of the history of the matter leading up to the issuing of the licence for the ground floor part of the premises only. The result is that his use of the machines on the cockloft was a blatant breach of the Ordinance. It was therefore right in my view for the magistrate to observe that his degree of culpability for the use of the machines in the unlicensed premises was substantial.

7. Mr Stevenson has drawn my attention to the correspondence which passed between the Authority and Miss Law and to the evidence given in the lower court by an officer of the Authority. That officer's evidence was that if the Lands and Buildings Branch of the Public Works Department approved the illegal structure or if Miss Law changed the user or altered the structure so that the Approval of the Lands and Buildings Branch would be forthcoming, then the Licensing Authority would have granted the licences in respect of the cockloft. That, however, does not alter the position that the Appellant knew that he was not at that time licensed to use the cockloft for the installation of the machines.

8. Mr Stevenson referred me to The Queen v. SHIU Cho-kee, Magistracy Appeal 393 of 1985,in which O'Connor J after a review of many authorities set out the principles to be applied when a court is exercising a discretion to order forfeiture. The case before O'Connor J was one dealing with a different Ordinance altogether. As the learned magistrate pointed out, under this Ordinance, as I have said earlier, forfeiture must be ordered unless the court is satisfied that there is special and exceptional reason not to so order. Here the magistrate makes the point that effectively the Appellant's plea in this case was one of hardship but the Ordinance itself specifically provides that hardship can never amount to special and exceptional reason within the meaning of the Ordinance.

9. This being a case where the Applicant has failed to satisfy the court that there was special and exceptional reason not to order forfeiture I do not see how this court can interfere with the order that the learned magistrate made. Accordingly, the appeal must be dismissed.