THE QUEEN v. CHAN TAK-SANG AND OTHERS

IN THE COURT OF APPEAL

1987, No. 46
(Criminal)

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Dates of hearing: 16th and 17th:July,-1987.

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. The four Applicants were convicted in the District Court, by His Honour Judge Cameron, of cheating at gambling contrary to Section 16(1)(a) of the Gambling Ordinance, Cap. 148.

2. Originally there were five Defendants so convicted, but one does not seek leave to appeal. Nine charges were variously laid against the Defendants and combinations of the Defendants, with convictions recorded on all.

3. It is not necessary to go into the details. Each charge involved a variation upon the basic theme commonly known as the "Tin Sin Kuk" or "Heavenly Swindle". It is practised generally, as in this instance, with the aid of a game called "Chong Yuen Tan", itself a variant of the well known game of "Fan Tan". As a form of confidence trick the "Tin Sin Kuk" is equally well known, and we do not propose to set it out now. Those who are not acquainted with it will find a concise and clear description in the judgment of Huggins, J. (as he then was) in the Queen v. Chan Ngan Lun[1] .

4. In substance the various grounds of appeal which the Applicants seek to put forward are common to all. Those that are now pursued resolve themselves into three. The first two relate to the evidence of Yeung Ying Kit, a Sergeant in the Royal Hong Kong Police Force. He spoke as to the nature of the Tin Sin Kuk and as to the game of Chong Yuen Tan. He also spoke, or was cross-examined, as to other matters connected with gambling. So far as those other matters went, his evidence did not find favour with the judge, who said -

"In evidence-in-chief PW3 (that is the Sergeant) indicated he was an expert on various forms of gambling. Under cross-examination it was apparent that this was not so. I did however accept PW3, as an expert on TIN SIN KUK and CHONG YUEN TAN where coins were used."

5. The judge gave no explanation for that decision.

6. Our attention has been drawn to the cases of the Queen v. Yeung Chiu[2] and the' Queen v. Lam Kam Ming[3] , which indicate the extent to which a judge is required to justify his conclusions of fact. In the former we find the following comment -

"Where the body of evidence upon which the Crown relies in a criminal case shows on the face of it, difficulties and incoherences of a substantial sort then I think in any such case it must always be the duty of a magistrate or a judge, in giving reasons for deciding which body of testimony he believes to discuss these difficulties and to give some reasonable indication of a manner in which he has disposed of them."

And in the latter we find this comment -

"Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved."

7. We have been taken through the relevant parts of the Sergeant's evidence. In particular, he said at one stage that Chong Yuen Tan and Fan Tan were one and the same game. Later he accepted that there were differences, in that in Chong Yuen Tan no two persons can bet on the same number, the banker can of his own decision declare any round void and the financial differences are settled after a certain number of rounds rather than each time. The Sergeant was later unable to understand questions put with regard to what we are told are particular permutations used in wagers upon horse racing. Finally, when it was suggested to him that Tin Sin Kuk was not a game of chance, he replied that "if normal, it could be". That answer was of course incorrect, and inconsistent with both the substance of his earlier evidence and of his later specific evidence to the effect that it was "a swindle in which the swindler is swindled".

8. It is suggested that these particular passages demanded specific treatment by the judge in his reasoning; alternatively that in themselves they so discredited hr. evidence that as a whole it should have been rejected.

9. With respect we do not think that either conclusion must necessarily follow. We do not see these matters as incoherent difficulties or incoherences of a substantial sort or as significant inconsistencies or conflicts. Moreover the judge had the advantage that we do not, of having seen and heard the Sergeant. He would have been able to follow the lengthy cross-examination and be in a good position to accept or reject the Sergeant's evidence as he thought appropriate. We see nothing in the passages to which we have been referred, or in the other evidence of the Sergeant to which our attention has been drawn, to say that the judge was wrong.

10. Despite the forceful cross-examination which attacked the Sergeant's knowledge and understanding of the various forms of gambling, no objection as such was taken to his expertise. However, that is now put as the second ground of appeal. It is suggested that the Crown, failed to establish his qualification as an expert.

11. Section 20(3) of the Gambling Ordinance provides -

"If in any proceedings under this Ordinance a court is satisfied that by experience or otherwise a police officer has expert knowledge of any practice or device used in or for the purpose of the commission of any offence under the Ordinance, the court may receive evidence from that police officer as to the nature, effect or purpose of the practice or device."

12. We accept without hesitation the submission that the burden is on the Crown to establish that a police officer does have the appropriate knowledge before his evidence as to the nature, effect or purpose of the particular practice or device is receivable. But we have to observe that where no objection is taken a judge may be satisfied by very little evidence. We need only refer to the comment of Huggins, J. in the Queen v. Lee Fat[4] :-

"There is no doubt that if an accused person expressly states that he does not object to the admission of a confession the judges require only a scintilla of evidence to satisfy them that the confession was voluntary."

We accept that he refers there to an express statement that no objection is taken, but we do not for ourselves see any significant distinction between an express and tacit lack of objection. Nor can we see, as is now suggested; that any heavier burden is imposed where the condition precedent is set, as in the present instance, by statute rather than as it was in that case, by common law.

In the present instance the knowledge which the officer would have to exhibit to the Court would not be of gambling as such, or of the game on which the wagers were based, but of the misleading device or false practice by which the Defendants were able to win money from their victims, in other words knowledge of the Tin Sin Kuk. However, the evidence initially led from the Sergeant by counsel who then appeared for the Crown mostly referred to gambling. It indicated that he had been engaged in the investigation of gambling matters for about half of the twenty-three years of his police service, that in 1984 he had been appointed by the police as a gambling expert and that he had on some 25 occasions given evidence in court in that capacity. He had also attended an advanced course run by the police for those already appointed as gambling experts. Nevertheless, when referring to the various types of gambling that he had investigated in his time, he specifically mentioned the Tin Sin Kuk. Without going into the question of whether it would be permissible for a judge to defar his conclusions as to the qualification of a proferred expert until the completion of all his evidence, we are satisfied that in the present instance there was at that initial stage of his evidence, in the absence of objection, sufficient for the judge to be satisfied that the Sergeant's evidence was admissible under the subsection, a conclusion amply borne out by his subsequent evidence. There has been a faint suggestion that even then, his evidence went too far and decided the very issue which the judge himself had to decide, namely did the Defendants make use of the misleading device or false practice to win money from the various victims. We do not find that it did. The judge drew that conclusion for himself from the totality of the evidence.

13. The judge gave the reasons for convicting very shortly, under the heading of "Findings", in the last two pages of a lengthy written decision. As to the credibility of the various victims he merely said that there had been cross-examination directed to establish that their evidence was not credible and that they had all experienced difficulties .under cross-examination. Nevertheless he accepted them generally as witnesses of truth, although not very intelligent.

14. The final ground of appeal is that the learned trial judge erred in failing to warn himself of the danger of convicting upon the evidence of persons who on their own evidence had conspired to practise deception upon others in the course of their gambling activities. The coincidence that nine such persons, unacquainted with each other, should give strikingly similar and yet untruthful evidence, is so remote as to seem beyond possibility. Nevertheless we are willing to accept for the purpose of this argument that the willingness of the various victims to practice deceit upon others by way of unfair gambling is a factor that should have caused the judge to warn himself to approach their evidence carefully. He certainly did not do so in express terms. We have already referred to all that he said in this respect in his "Findings". However, two pages earlier, at the conclusion of his detailed recital of the evidence he recorded this passage -

“These above persons (that is the various victims) who lost money engaged in gambling with mixed motives. Some did it out of pure greed. They did not expect to lose. Some did it partly out of greed and partly because they believe they had to go along with the scheme to secure the project they had been offered. Some also believed they were doing good by helping to teach the nephew a lesson. In one instance the money was to be returned to the nephew, in the others a share of the winnings was to be given to the nephew's relatives.”

15. It is well established that in circumstances where care has to be exercised in relation to particular witnesses, there is no set formula for the warning that is then necessary. What is essential is that the judge should be aware of the position and that he should not overlook the possibility that the witnesses’ evidence may have been influenced by their particular situations. The passage we have quoted leads us to believe that the judge, although not expressly referring to it in his final paragraph, was indeed aware of the position of the victims and that he did not overlook it when coming to his conclusion as to the truth of their evidence.

16. For these reasons we see no merit in the grounds of appeal suggested and we refuse the applications for leave to appeal.

17. We come now (after hearing counsel further) to the applications for leave to appeal against sentence. To begin with we would make some general observations. Firstly, we respectfully agree with the comments of this Court in the Attorney General v. Leung Kam To[5] that for a single offence of this nature, a sentence of one year's imprisonment would normally be an appropriate starting point.

18. Secondly, as a general rule we would not expect there to be any significant variation in the sentences imposed on different offenders in any particular case by reason of the different roles that each had played in the course of that particular swindle. From the very nature of this kind of fraud the parties are dependent upon the conduct of each other, each party needing to succeed in his own part before the whole can succeed.

19. Thirdly, although the amount of money involved is a matter to be taken into consideration, it does not play a decisive part, for the amount taken will usually depend more upon the character and circumstances of the victims than upon the intent of the culprits.

20. Returning to the instant case, one factor commended to our attention is that the offences are somewhat stale. That is certainly true with regard to the offence in Charge 9, which was committed in 1977. The other offences range from 1983 until 1985, coming to light only from conduct in 1986. But again from their very nature, offences of this kind are likely to lie undiscovered for sometime, if not forever. We are not satisfied that the period for which these particular offences laid undiscovered is sufficient to warrant any general discount in the sentences to be passed.

21. The 1st Defendant was only concerned in two offences. When the criminality of those two offences is compared with the total criminality of the other Defendants we think that insufficient distinction has been made. Three years' imprisonment is too heavy. Two years would have been more appropriate. Furthermore D1 is now aged 72, a considerable age and for humanitarian reasons we propose to allow a further slight discount and reduce his sentence to eighteen months.

22. In the personal circumstances of the other three Defendants we find nothing unusual. There are family considerations of course, but then that is usual in almost every instance, and often, it is the family who in effect pay more heavily for the offence than the offender himself. We are not satisfied that there is anything in the personal circumstances of the other Defendants which would warrant a reduction in an otherwise proper sentence.

23. In general we do not think the sentences passed were manifestly excessive, in particular with regard to the 3rd Defendant who was involved in a great number of offences and party to both the syndicates concerned. However we do not find it possible to draw a viable distinction between the conduct of the 4th and 5th Defendants. It is true that the 4th Defendant was concerned in four offences and the 5th in only three. But we feel that in the context of the whole case a variation of one does not justify a whole year's difference in sentence.

24. For these reasons we grant the applications for leave to appeal in respect of the 1st and 4th Defendants, treat the hearing as the appeals, allow the appeals and reduce their sentences to eighteen months and three years respectively on each of the appropriate charges, the sentences to be served concurrently; all other applications are refused.