THE QUEEN v. WONG WAI YIP AND OTHERS

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HEADNOTE

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GAMBLING ESTABLISHMENT - BURDEN ON CROWN TO ESTABLISH KNOWLEDGE IN RESPECT OF CHARGES LAID UNDER S.5 AND S.6.

SECTION 3 - INTERPRETATION OF PROVISIONS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1518 OF 1989

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JUDGMENT

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1. The 1st appellant was convicted after trial before Mr W. Banks of managing a gambling establishment, the other appellants were convicted of gambling in a gambling establishment. They appeal against these convictions.

2. The facts were that four undercover police officers went to premises known as Sun Fat Fraternity Association Ltd. They were asked if they wanted to play mahjong and, when they said they did, one of the group completed an application form and was given a membership card. They were then taken to a cubicle where they played mahjong for four hours, following which they were given a bill for food and services. When they queried the bill, they were told by the 1st appellant that it included a charge of $17 per hour for the hire of the mahjong tiles. The police raided the premises and the appellants were arrested. The premises were found to comprise 21 small rooms and one brillard room. In the small rooms were found a mahjong table and chairs, mahjong tiles and dice. The 1st appellant was charged under section 5 (b) of the Gambling ordinance which states :-

                "Any person who, on any occasion :

3. The other appellants were charged under section 6 which states :-

                "Any person who gambles in a gambling establishment commits an offence."

4. A gambling establishment is defined in section 2 as including any premises or place whether or not the public or a section of the public is entitled or permitted to have access thereto, owned or kept or used, whether on one occasion or more than one occasion, for the purposes of or in connection with unlawful gambling or an unlawful lottery.

5. The Crown gains assistance in prosecutions under this Ordinance from the provisions of section 19 which provides :-

                "(1)        Where, in any proceedings under this Ordinance, it is proved that -

(2)       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."

6. As gambling equipment had been found in the cubicles, the Magistrate quite rightly found that the presumptions under section 19 applied and that the burden was on the persons charged to rebut those presumptions. It was for the appellants to show on the balance of probabilities that either the premises were not a gambling establishment or that they were not gambling in those premises.

7. The Magistrate directed himself to the provisions of section 3 which provide a defence to a charge under section 6 prima facie proof of which emerges from the presumptions contained in sub-sections (1) and (2) of section 19 (see R.v. Kwong Yiu-hung & Others M.A.1408/87). He was particularly concerned with section 3(3)(d) which states :-

8. The prescribed amount is $20 per day.

9. The Magistrate found that as the Sun Fat Association Limited was promoting or conducting the game of mahjong by way of trade or business and that the fee charged exceeded the "prescribed amount for the hire of mahjong tiles the provisions of section 3 did not provide the appellants with a defence. He was satisfied that the presumptions had not been rebutted and accordingly convicted the appellants.

10. It should be noted that in addition to the presumptions, the Magistrate had, from those appellants who gave evidence, their acknowledgement that they had been gambling in the premises on the evening of the police raid.

11. It is a ground of appeal that the Magistrate erred in holding that the presumptions under section 19 applied to the whole of the premises or place specified in the Gambling Authorization as opposed to the specific premises or place within which gambling equipment was found. This "premises within premises" argument does not, on the face of it, help the appellants in that the gambling equipment was found in all of the rooms occupied by the appellants. It is however further argued that if this submission is correct, then each group of four persons can rebut the presumption in respect of their particular cubicle by showing that their particular "game" was not promoted by way of trade or business, thereby becoming lawful gaming under section 3(3)(d) and section 3(4)(d). It is further submitted that this argument would also bring the appellants within the provisions of section 3(2) which provides :-

"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."

12. Mr Hampton who appears for the appellants submits that the term "the game" is not referring to mahjong in its generic sense but is directed to each game in each cubicle.'

13. To accept that section 3 can be interpreted in this way in my view would make a nonsense of section 6. It would be impossible for the Crown to obtain a conviction against any gambler found in an unlicensed mahjong club, which the Sun Fat Fraternity Association Limited clearly was. That cannot have been the intention of the legislation. I do not find any merit in this submission.

14. It is a further ground of appeal that the Magistrate erred in making no finding of fact as to the proof that the appellants knew that the premises were a gambling establishment, it being submitted that knowledge of such a fact is an essential ingredient of the offence and that the burden of proving such remains on the prosecution. Mr Reading who appeared for the Crown submits that once the presumptions under section 19 arise and are not rebutted, it is not incumbent upon the Crown to establish that the appellants knew that they were in a gambling establishment. This seems to be, from him, a change of position in that in R. . Fong Chi-keung [1988]1 HKLR Wong, J. at p.126 said "...I accept that the offence created by section 6 of the Gambling ordinance is one that also requires mens rea, a point which Mr Reading for the Crown readily conceded".

15. In that case, Wong J., was following the judgment of Rhind J. in Yuen Chi-ming & Others Criminal Appeal No. 214 of 1981 where the judge said :-

"For the purpose of proving a charge contrary to either section 5 or section 15 of the Ordinance, this presumption is however of limited utility. Through the presumption the essential ingredient of the premises in fact being a gambling establishment can be established; the presumption does nothing though to prove that a defendant knew that the premises were a gambling establishment. That the defendant must have known that the premises were a gambling establishment is not open to dispute and it is up to the prosecution to prove that he has such knowledge. How the prosecution proves knowledge is a trite topic in criminal law."

In R. v. Woo Chik-wah & Others Magistracy Appeal No. 432 of 1988, Barnes, J. considered that the Magistrate had correctly directed herself when stating that knowledge was a necessary element to be established by the Crown, that unless the appellants could be shown to have knowledge of what was taking place on the premises, no offences could be established.

16. Hooper, J. in R. v. Wu Wing-fu Magistracy Appeal 518 of 1989, took a somewhat different approach, he said :-

"It has not been submitted to me that section 6 creates a form of strict liability but it seems to me to be arguable that it does. The section is aimed at conduct which appears to fall within the proposition set out in the speech of Lord Scarman in Gammon (Hong Kong) Limited and others v. A.G. of Hong Kong, [1984]2 All E.R. 503 at 503E and followed in Hong Kong by the Court of Appeal in the A.G. v. Yip Man-cheong, Magistracy Appeal No. 1753 of 1988. However, as strict liability is not a matter which has been raised in this appeal, I do not propose to say more except that I am satisfied that the presumptions, once raised, are prima facie proof of the offence under, section 6 and that there is no burden on the Crown to establish mens rea independently of the presumption."

17. ''In deciding what is the correct approach to the question of knowledge some help can in my judgment be gained from the provision of the Dangerous Drugs Ordinance. S.47(3) provides that a person is presumed to be in possession of a dangerous drug if certain primary facts are proved.

18. S.47(4) provides :-

"Any person who is found or presumed to have had a dangerous drug in his possession shall until the contrary is proved he presumed to know the nature of such drug."

19. The Ordinance specifically provides that knowledge is to be presumed.

20. There is no equivalent provision in the Gambling Ordinance whereby a person found managing premises presumed to be a gambling establishment under S.19(1) or persons presumed to be gambling in a gambling establishment under S.19(2) are also presumed to have known the premises were a gambling establishment. If the legislature had intended this to be so a provision to that effect could very easily have been included in the Ordinance.

21. I am, therefore, of the view that knowledge is an essential ingredient of charges laid under S.5 and S.6 and that the burden of proving this element remains on the Crown.

22. It is true that the Magistrate did not record a specific finding as to knowledge. However, in my view, on the evidence he had before him, he could draw only one reasonable inference. All of the appellants who gave evidence admitted to having gone to the premises for only one purpose, to play majhong. They all admitted to gambling. Only one claimed that the Association did not charge for the hire of the tiles which was clearly untrue_. None claimed to have believed to have been in something other than a gambling establishment. The evidence was overwhelming that the 1st appellant knew that he was managing a gambling establishment and that the other appellants all knew they were in a gambling establishment.

23. The appeals are dismissed.