THE QUEEN v. CURRENCY BROKERS (HK) LTD AND ANOTHER

IN THE COURT OF APPEAL

No. 186 of 1987
(Criminal)

BETWEEN

THE QUEEN

and

CURRENCY BROKERS (H.K.) LTD (D1)

ROBERT LEE FLICKINGER (D2)

Dates of Hearing: 4th, 11th & 25th June 1987

Date of Judgment: 25th June 1987

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JUDGMENT

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Kempster, J.A.:

1. On 10th July 1986 in Victoria District Court Currency Brokers (Hong Kong) Ltd and Robert Lee Flickinger were convicted on their own pleas of bookmaking contrary to section 7(1)(a) of the Gambling Ordinance (Cap. 148) and to section 84 of the Interpretation and General Clauses Ordinance (Cap 1). They now seek an eight month extension of time in which to apply for leave to appeal, if that be necessary, alternatively to serve notices of appeal against such convictions pursuant to section 83(1)(2) and (3) of the Criminal Procedure Ordinance (Cap. 221). I take the view that the points sought to be relied upon are points of law and that appeals lie as of right subject to the time factor.

2. The pleas of guilty would normally preclude any appeal but in circumstances where, upon admitted facts, appellants could not lawfully have been convicted of the offences charged, as is here contended, an appeal may nonetheless be sustained since, by analogy with a positive ruling, in accepting the pleas the judge would be deemed to have made an erroneous decision in 1aw: R v Hunt[1]; R v Whitehouse[2].

3. As for the reasons for this belated application the company and Mr. Flickinger pleaded guilty after considering legal advice. They were represented at the hearing. But in the light of representations said subsequently to have been made by the police to the Immigration Department and to have demonstrated a less favourable attitude to the offences than that shown by Judge Chism Mr. Flickinger, and through him the company, repented of their pleas although he and his solicitors were too heavily engaged in other litigation immediately to make the necessary applications. Time ran on. The knowledge of the attitude of the police must have come to Mr. Flickinger’s notice at the end of February 1987 and he did not swear an affidavit until the 7th or file applications until 14th April. This is a scenario which hardly prompts me to favour the exercise of the Court's undoubted discretion in favour of any extension of time.

4. The classic approach in this context was expressed by Viscount Caldecote, CJ in R v Cullum[3]; quoting an earlier judgment of Humphreys J:

The rules are of importance. We have constantly refused applications for an extension of time within which to make an appeal when there have been no substantial merits brought to our notice which seem to justify the Court in extending the time.

There is other good authority that the merits, in the sense of the prospects of success if time were to be extended, should be taken into account. R v Marsh & Others[4]; In R v Lee[5] and R v Foster[6]. In the latter cases the Court even received fresh evidence on appeals from convictions in relation to which pleas of guilty had been entered.

5. Section 7(1)(a) of the Gambling Ordinance reads:

Any person who engages in bookmaking commits an offence.

And bookmaking is defined in section 2 as meaning

the soliciting, receiving or negotiating of a bet by way of trade or business whether personally or by letter, telephone ,telegram or by any other means.

A bet is not specifically defined but in ordinary English usage it means the staking of money or other value on the outcome of an uncertain event or doubtful issue or in support of an affirmation or forecast. The term wager may be regarded as synonymous. The best-known legal definition of a bet or wager, to be found in the judgment of Hawkins J. in a redoubtable case known to all students of the law, is a transaction

- by which two persons, professing to hold opposite views touching the issue of a future uncertain event, mutually agree that, dependent upon the determination of that event, one shall win from the other, and that other shall pay or hand over to him, a sum of money or other stake; neither of the contracting parties having any other interest in that contract than the sum or stake he will so win or lose, there being no other real consideration for the making of such contract by either of the parties. It is essential to a wagering contract that each party may under it either win or lose, whether he win or lose being dependent on the issue of the event, and, therefore, remaining uncertain until that issue is known. If either of the parties may win but cannot lose, or may lose but cannot win, it is not a wagering contract. Carlillv The Carbolic Smoke Ball Company[7]

This decision was affirmed in the Court of Appeal: 1893 1 QB 256. The only qualification that I would venture to make is that the material event need not be one that must occur in the future; a qualification that has no relevance in the instant case. Before parting with this aspect of the matter it might, perhaps, he observed that the Gaming Act 1845 does not apply in Hong Kong.

6. The Summary of Facts agreed between the Crown and the applicants disclosed just such a situation as was defined by Hawkins J; particularly when read in conjunction with the considered pleas of guilty. Members of the public entering into what were called leverage contracts with the company, by way of its trade or business, staked, that is to say put at hazard, sums of money dependent on the appreciation or depreciation of nominated foreign currencies within a period open to their election but subject to a maximum of 180 days; accepting the New York Spot Market price for the nominated currency at any material time as the benchmark. If the chosen currency rose in value in relation to the US$ within the relevant period the company would be liable to pay the other party a sum converted into HK$ proportionate both to the rise and to the amount of the currency specified. If it fell the other party would be liable to the company mutatis mutandis. One party would win and the other lose. The existence of service and handling fees, which were not dependant on the outcome of the wager, do not affect the analysis. In no circumstances was the other contracting party entitled to require the delivery by the company of any amount of the chosen foreign currency.

7. Whether or not reputable financial institutions offer contracts of a similar nature is neither here nor there. I would only say that those that have been drawn to the attention of this Court are markedly different in important respects from the leverage contracts with which we are concerned.

8. All I need say in conclusion is that the applicants' prospects of success are not sufficiently strong to persuade me to extend the time for service of notices of appeal in the circumstances already outlined. I would dismiss the applications.

Yang, Ag. C.J.:

9. For the reasons given by my brother Kempster I too would dismiss the applications.

Power, J.A.:

10. I concur with all has fallen from my brother Kempster and would also dismiss the applications.