HKSAR v. CHIU WING KAI

HCMA37/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 37 OF 2008

(ON APPEAL FROM STCC 6610 OF 2007)

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J U D G M E N T

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1. On 12 December 2007, the appellant was convicted after trial before Mr T.H. Casewell, magistrate, of one charge of Engaging in Bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance, Cap. 148, Laws of Hong Kong.  He was fined $25,000.  This is his appeal against that conviction. 

2. In his trial he was represented by Mr James Chandler of counsel and today before me by Mr James McGowan of counsel.  The respondent is represented by Ms Sally Yam, SGC.  

3. It was the prosecution case in the lower court that the appellant was, between 1 and 21 October 2006, engaged in bookmaking and in particular that he was taking bets on Premier League football matches in the United Kingdom. 

4. Stated briefly the facts were that at 10:20 on the evening of 21 October 2006 police officers went to the appellant’s home at Shatin.  Upon entry they found that the television was turned on and was tuned to Channel 63 where the Premier League football matches were usually shown.  

5. The appellant’s computer was on and the website in view was described by the magistrate as a football gambling site (there was evidence to the effect that in Hong Kong it was an illegal site inasmuch as the Hong Kong Jockey Club was the only entity permitted to take bets on football matches).  A number of documents that appeared to be records of bets were identified and seized by the police officer. 

6. One police officer spoke to the appellant at the time and asked him :

“Who purchased these records or bought those records found on the desk?”

In response the appellant said words to the effect that somebody had asked him to place bets with the Jockey Club on “his” or possibly “their” account.  It was the officers’ evidence that the appellant added that he did not place all of those bets with the Jockey Club.  Those bets (the ones he did not place with the Jockey Club) he said had been “eaten” by him.  It was not in issue in the trial nor before me that the colloquial expression used by the appellant meant that he had himself taken those bets. 

7. The police officer had not cautioned the appellant prior to this conversation.  Later when it was reduced into writing he refused to sign the written document. 

8. In addition to the documents referred to above which were described in the trial as “betting slips” the police officer also obtained an SMS message sent to the appellant’s mobile telephone on 18 October 2006.  The content of that SMS message was such that it was referred to and determined to be in the trial itself a “betting slip”. 

9. Several of the documents and that SMS message were examined by an expert in gambling and it was his evidence in the prosecution case that the exhibits which were referred to by the magistrate as P4, 5, 6 and 7 and the SMS message P9 were all bookmakers records. 

10. Exhibits P4 and P5 were referable to football matches played that weekend in the United Kingdom Premier League and there was also reference to other European games.  Likewise exhibits P7 and P9 (which was the SMS message) were directly referable to mid week football games played in the European Champions League.  The charge alleged that the appellant had engaged in bookmaking between 1 and 21 October and therefore as exhibit P6 whilst nonetheless a bookmakers record fell outside the period of the alleged offence it was ignored by the magistrate.  The gambling expert’s evidence was not challenged.  The magistrate was clearly alert to the fact that the finding of the bookmakers records, (i.e. the betting slips) could not of itself establish that the appellant had been engaged in bookmaking.  The magistrate noted that for the offence to be established he had to be satisfied to the criminal standard that the appellant had solicited, received, negotiated or settled a bet by way of trade or business. 

11. As to these matters the magistrate accepted that the admission made by the appellant that he had “eaten” certain bets was a clear and unequivocal admission of having taking bets within the time frame of the alleged offence.  Taking into account the fact that the betting slips were referable to football games played or being played within those dates together with the fact that he was found to be viewing the odds being offered on the internet gambling site, the magistrate was satisfied so as to be sure that the prosecution had established that the appellant had been engaged in bookmaking albeit on a small scale.  He was likewise satisfied that despite the small scale of the appellant’s bookmaking it was nevertheless by way of a trade or business. 

The appeal

12. Ground 1 of the grounds of appeal reads as follows :

“The learned Magistrate erred in determining that in all the circumstances the Appellant’s alleged and admission could be properly and fairly admitted into evidence.” 

13. Mr McGowan in his written submissions at paragraph 2 lists six matters referred to by the magistrate when he concluded that the appellant was bookmaking.  The last of these was the alleged admission by the appellant that he “did place bets with the Jockey Club for others but also that he had ‘eaten’ some of them himself”. 

14. Mr McGowan submits that the latter admission which the magistrate took to mean (and this is not challenged in these proceedings) that he had taken the bet as a bookmaker was critical to the prosecution case and should have been ruled inadmissible.  This he says is so in this particular case because apart from this admission there was no direct evidence that the appellant was bookmaking.  There was no evidence in the time that the police officers were at the appellant’s home of telephone calls being received to place bets.  There were certainly betting slips and circumstances which properly generated suspicion but nothing concrete directly linked the appellant to bookmaking other than this admission.  Mr McGowan says in these circumstances that the magistrate was in error not to exclude the admission, critical as it was to the whole of the prosecution case.

15. In the trial the appellant’s counsel had sought to exclude the admission from the evidence.  The magistrate was alert to the fact that it was made before the appellant had been cautioned.  He was also alert to the fact that the appellant refused subsequently to adopt the expression not as the magistrate pointed out however because he had not said it but because it did not convey what it was that he intended to say in response to the police officer’s question. 

16. The magistrate in his reasons for verdict said this :

“I also did not consider that I need exercise my discretion to exclude what the defendant had said.  Clearly, the defendant was not challenging the accuracy of what was said it was merely that it did not convey his intent.

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So I was prepared not only to admit those words into evidence but also to rely upon them as being capable of establishing a fact; if they can be interpreted in such a way.”

17. The magistrate, a very experienced magistrate, was aware that it was incumbent upon police officer to administer a caution to a suspect when the evidence that he had was sufficient to establish that an offence may have been committed.  No doubt he was aware of Rules I and II of the Rules and Directions for the questioning of suspects.  Rule II in particular states that :

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence he shall caution that person.”

18. In the present case the magistrate was not satisfied that the investigation had reached that stage when the appellant was asked about what were subsequently found by the gambling expert to be betting slips. 

19. It is correct as Mr McGowan points out that the police officer who went to the appellant’s home on 21 October did so armed with a gambling authorization.  That is a document authorized by a senior ranking police officer pursuant to section 23 of the Gambling Ordinance, Cap. 148 to enter and search premises which are reasonably suspected to be a gambling establishment.  The authorization is specific to the premises and not any individual.  In the present case whilst access to the premises was obtained by this means, it did not then follow that the appellant himself was suspected of having committed an offence.  That suspicion the magistrate found arose after the officers had entered the premises and the appellant had admitted having taken bets on football matches.  Whilst it may be that the fact that :

(1) the television in the premises was on and tuned to the European Premier League football matches;

(2) the computer in the premises was surfing but not necessarily logged onto football gambling sites; and

(3) there were pieces of paper which might have been “betting slips” in front of the computer;

generated suspicion.  There was no direct evidence that the appellant had engaged in anything illegal.  The premises themselves might have been suspect but the appellant was not.  At least not at that stage. 

20. The magistrate said this :

“I did not accept that the caution need necessarily be administered at such an early stage in the investigation.  The police were quite entitled to put questions to the defendant about the things they had observed in the flat because it was only after the defendant had in fact spoken to them that the reasonable suspicion would have existed that the defendant was involved in bookmaking”

21. In the circumstances of this case I agree with those observations.   Whilst it is correct, as Mr McGowan points out, the questions asked of the appellant were after the police officer had seen the television and computer images and the pieces of paper that were ultimately found to be betting slips nevertheless other than being present there was no direct evidence of the defendant’s involvement in any illegal activities. 

22. In these circumstances it was proper for them to ask the appellant the questions they did without first having cautioned him. 

23. The police officer who asked the questions of the appellant which ultimately elicited the incriminatory answer accepted in the course of the cross-examination that he should have cautioned the appellant before asking him questions about what appeared to be betting slips found on the table in the appellant’s home. 

24. Ms Sally Yam, SGC in her submissions emphasizes that any breaches of the rules and directions for questioning of suspects and the taking of statements does not mean that an answer given by the accused, and in particular an answer given by an accused who should have first been cautioned is thereby inadmissible and she refers me to the unreported judgment of HKSAR v. Li Yau Fok, HCMA347/1999. 

25. Ms Yam emphasizes that the issue for determination is whether or not a statement is voluntary.  With that observations, I agree.  What, however, is to my mind critical is that whether or not a police officer “has evidence which would afford reasonable grounds for suspecting that a person has committed an offence” is an objective test.  If a police officer erroneously believes that he did not have sufficient grounds and asked questions when he should have first cautioned the suspect, the court must determine whether his belief is reasonable or unreasonable based on the evidence at hand.  Similarly a concession by an officer that he should have cautioned a suspect before asking further questions may be in error.  In the present case the magistrate was aware that the officer made the concession he did.  The magistrate nevertheless did not agree with it.  It was the magistrate’s conclusion that when the question was asked of the appellant there was not until it was answered a proper basis for the need to caution.  I agree with those observations.  

26. Mr McGowan submits that the admission by the appellant that he had taken some bets himself was a crucial part of the magistrate’s reasoning.  It may have been but it is apparent from the reasons both written and oral that his conclusions were based on the evidence in its entirety not only that admission that all of the other evidence to which I have earlier adverted to.  At the time the appellant was questioned there was in my opinion mere suspicion but not otherwise that he had engaged in bookmaking activities.  In the circumstances the asking of the question by the police officer was entirely proper, as the magistrate has found.  It is for that reason that ground 1 of the perfected grounds of appeal must fail.  

27. Ground 2 of the perfected grounds of appeal reads as follows :

The learned magistrate erred in determining in all of the circumstances that the appellant :

(a)  was indeed acting as a bookmaker; and

(b) was doing so by way of trade or business. 

28. The magistrate concluded on the basis of the whole of the evidence that the appellant was bookmaking.  He was in my opinion entitled to come to that conclusion.  Similarly he concluded that it was bookmaking “by way of trade or business” albeit as he found on a small scale. 

29. As to the finding that the appellants was bookmaking, in his reasons for verdict the magistrate refers at length to the submissions made to him on behalf of the appellant in the trial.  It is apparent from these references that the magistrate was fully alert to the strengths and weaknesses of the prosecution case and what it was required to be proved before a conviction could be recorded.  He was fully aware of the fact that if the appellant was indeed bookmaking he was doing so on a small scale.  He was fully aware that in the time the police were in the appellant’s premises there was no attempt to place bets with him by telephone. 

30. He was likewise aware that for a conviction to be recorded for bookmaking the taking of bets must be by way of trade or business, and this he found was the case albeit on a small scale.  He understood fully that the bets that had been taken by the appellant were not large.  Nevertheless he was satisfied that the appellant was operating by way of trade or business. 

31. I have examined carefully his findings in this regard and I have no doubt that he is correct in those findings.  In this case ground 2 of the perfected grounds of appeal must fail.  And the appeal must be dismissed. 

32. The conviction is neither unsafe nor unsatisfactory.