THE QUEEN v. TAM MING CHU

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HEADNOTE

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UNLAWFUL GAMBLING -APPLICATION FOR FORFEITURE OF VESSEL - ORDER MANDATORY IF GAMBLING MAIN PURPOSE AND NOT INCIDENTAL TO USE OF VESSEL.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 238 OF 1991

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JUDGMENT

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1. This is an appeal from an order of forfeiture made by Mr Acton-Bond in Western Magistrates Court in respect of a vessel seized in a gambling raid.

2. The vessel - a pleasure craft capable of carrying 47 passengers and valued at $250,000 - was moored to a buoy near the entrance to Aberdeen Typhoon Shelter when it was boarded by police officers. Four men were in the cabin. It was apparent from the cassette recorders, mobile telephones and betting slips found in the cabin that they were engaged in recording bets in respect of horse racing, a commentary on which was being broadcast over the radio. This was admitted by one of the four - in fact the boatboy in charge of the boat. The betting slips reflected bets that night amounting to $70,000.

3. The appellant - the owner of the vessel - was in U.S.A. at the time of the seizure but was represented at the forfeiture proceedings. Her husband was one of the four men arrested but the prosecution offered no evidence and he was acquitted.

4. Section 26 of the Gambling Ordinance, Cap. 148, provides:-

If in any proceedings under this Ordinance or otherwise on application by or on behalf of the Commissioner of Police, a court is satisfied that any money gambling equipment or other property, not being immovable property, has been used in or for or in connexion with unlawful gambling or an unlawful lottery, the court shall order that it be forfeited to the Crown, whether or not any person has been convicted of an offence under this Ordinance.

 

5. It is clear that, if the boat is 'property' used in connexion with unlawful gambling within the meaning of the section, the magistrate had no discretion and was bound to order forfeiture.

6. It was submitted by Mr Grounds, on behalf of the appellant, both before the magistrate and on appeal, that the vessel:

(a)	cannot be 'other property' on a proffer construction of the Ordinance;

(b)	was a superior thing to any money or gambling equipment' and thus, by virtue of the ejusdem generis rule, was not within the inferior class and therefore not 'other property';
(c)	was not used 'in or for or in connexion with unlawful gambling'.

Other Property

                (a) This argument depends on the proposition that the vessel is a 'place' within the meaning of the ordinance and that, to avoid inconsistency, s.26 should be considered subordinate to s.23 and s.24, which give the police powers of search and. seizure of gambling equipment, money and, property in a 'place'.

7. With respect I. fail to see the inconsistency. There is no reason why a vessel cannot at the same time be both a 'place' and 'other property'.

Ejusdem Generis

                (b) Section 3 of the Interpretation Ordinance provides that 'or', 'other' 'otherwise' construed disjunctively implying similarity, unless the word 'similar' or  some other word of like meaning is added.

8. The ejusdem generis rule therefore does not apply in the absence of any contrary intention in the section.

Used in connexion with unlawful gambling

                (c) It is submitted that, if this vessel is liable to forfeiture, so also would an ocean liner in only one cabin of which unlawful gambling was taking place; or a Boeing 747, in which some cleaning workers were caught gambling.

9. Mr Grounds draws the distinction between a vessel or vehicle in which gambling is found to have taken place on a single occasion and which is clearly used also for innocent purposes, and one which has been equipped with fixtures and fittings to facilitate gambling. Only the latter, he submits, is 'used in connexion' with the gambling.

10. If that is right, bookmakers could cruise the streets of Kowloon taking bets on their mobile telephones, free from the risk of arrest or having their cars confiscated.

11. In my judgment one must look at the main purpose of the vessel at the time. If it is for gambling, it is being used in connexion with gambling. If it is an ocean liner moored in the harbour, it is to discharge and pick up passengers and cargo: the gambling is quite incidental to that purpose and is done without the knowledge of those in control of the ship.

12. In this case the vessel was being used solely for the purpose of taking bets on the races and was moored in that location in order to attempt to avoid the attentions of the police. I have no doubt that, in these circumstances, it was being used in connexion with unlawful gambling within the meaning of s. 26 and that the magistrate was right to order its forfeiture.

13. It is a severe penalty on an owner who has committed no offence out it is an additional deterrent to gamblers which may lawfully be employed by the Commissioner in his discretion. The question of unfairness or hardship is therefore irrelevant. The appeal is dismissed.