THE QUEEN v. MAN YIU HUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 259 of 1986

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BETWEEN

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JUDGMENT

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1. On the 13th February 1986, the three appellants who were among. seven defendants pleaded guilty to a charge of gambling contrary to Section 6 of the Gambling Ordinance Cape 148. Each appellant was fined $400.00 whilst cash and other exhibits found at the premises where the gambling took place were confiscated. No appeal is made against the amount of the fines but the 1st appellant (D1) appeals against the forfeiture of $7925.10, the 2nd appellant (D3) against forfeiture of $36,580.00 and the 3rd appellant (D4) against the forfeiture of $12,860.00. The order for forfeiture was made pursuant to Section 26 of the Gambling Ordinance which is mandatory and reads :-

"26. If in any proceedings under this Ordinance or otherwise on application by or on behalf of the Commissioner of Police, a magistrate 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, he shall order that it be forfeited to the Crown, whether or not any person has been convicted of an offence under this Ordinance."

2. It does not appear from the record that the draconian consequences of Section 26 were explained to the appellants who were unrepresented at the hearing. The learned magistrate may well have been right in making the order, but before so doing a defendant is entitled to put forward grounds why an order should not be made.

3. In the circumstances, I consider that the appropriate course is to remit the case back to the learned magistrate with a direction that the full implications of Section 26 be explained and to invite representations from the appellants as to why their monies should not be forfeited.