THE QUEEN v. FONG CHI KEUNG AND OTHERS

HEADNOTE

Gambling Ordinance, Cap. 148 - Offence of gambling in a gambling establishment under section 6 - Prosecution need not prove gambling unlawful - Any gambling in a gambling establishment is unlawful.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY AFPEAL NO. 605 of 1987

_______________________

_______________________

_______________________

JUDGMENT

_______________________

1. The appellants were convicted, after trial, before a magistrate of the offence of gambling in a gambling establishment contrary to section 6 of the Gambling Ordinance, Capo 148. They were each sentenced to a fine and their appeal is against conviction only. These appellants were respectively D4, D6, D7 and D24 at the trial in the court below.

2. The facts were that a police party executed a gambling authorization at the Dragon Inn in Castle Peak, New Territories, which is a hotel and restaurant comprising of a number of buildings and open space but entry to all of them is through and controlled by the main gate. The entry of the police party was delayed because the main gate was locked and when they finally entered they found a room known as the East Room deserted but it was well-lit with curtains drawn and air-condition switched on. There was a long table with banker tiles on it showing signs that the room had been used but hastily abandoned prior to the entry of the police. On an adjoining terrace, the police party found items which had apparently been discarded such as lai-see packets, dice and tiles. Along a trail leading to the buildings in the rear, there were more discarded dice and tiles. A total of 32 men including the four appellants were found hiding in the bushes in the vicinity of the abandoned room. Cash amounting to $54,000 and gambling chips having a face value of over $35,000 were found on them.

3. These facts were not disputed and were adduced in evidence by consent at the trial.

4. The manager of the Dragon Inn gave evidence that the premises had a restaurant licence. A police sergeant was called as an expert witness and testified that the layout of the room, the dice and tiles and the large number of people were consistent with pai kau having been played in the room.

5. Only D6 gave evidence. He said that he and the other appellants went to the Dragon Inn for dinner and, afterwards they played mahjong in a small room which was not the East Room. It was purely a game played on a social occasion among friends and there was no commission paid or payable. When they heard a disturbance or commotion outside, they thought that there was either a fight or a robbery and as a result they ran out of their room and hid themselves together but not with the others in the bushes. The learned magistrate did not believe his evidence.

6. In his statement of findings, the learned magistrate made a number of findings both on fact and on the law among which were that the Dragon Inn and the grounds surrounding it were premises or place within the meaning of section 19 of the Gambling Ordinance. He also found that the presumptions under the same section were raised and the burden was upon the appellants to prove on a balance of probabilities that the premises were not a gambling establishment or they were not gambling there but the appellants had failed to rebut the presumptions. In his oral reasons given in court, the learned magistrate, however, mentioned that the burden was on the appellants to prove on a balance of probability that either gambling was lawful or that they were not gambling and this passage appears at page 40 of the transcript.

7. Mr. Nguyen, who appeared for all four appellants before me, conceded that the whole of Dragon Inn and not just the East Room constituted the premises or place for the purpose of section 19 and having admitted this he further conceded that the presumption under section 19(1) applied. He argued, however, that section 19(1) only went so far as to help the prosecution to establish a prima facie case that the premises were a gambling establishment but it did not assist the prosecution to prove that a particular defendant knew that those premises were a gambling establishment. He relied on a judgment of Rhind J. in Yuen Chi-ming and others v The Queen, Criminal Appeal No. 214 of 1981. At page 7, the learned judge said:

“For the purpose of proving a charge contrary to either section 5 or section 15 of the Ordinance, this presumption is, however, of limited utility. Through the presumption, the essential ingredient of the premises in fact being ‘a gambling establishment’ can be established; the presumption does nothing, though, to prove that a defendant knew that the premises were 'a gambling establishment'. That the defendant must have known that the premises were 'a gambling establishment' is not open to dispute, and it is up to the prosecution to prove that he had such a knowledge. How the prosecution proves knowledge is a trite topic in the criminal law”

8. Although Rhind J. was dealing with a case under different sections, I accept that the offence created by section 6 of the Gambling Ordinance is one that also requires mens rea, a point which Mr. Reading for the Crown readily conceded. Knowledge is a matter to be inferred from all the evidence and without dwelling more on this issue there is, in my view, ample evidence to draw the inference that the appellants knew that the premises were a gambling establishment.

9. Mr. Nguyen further contended, that not only it was for the prosecution to prove mens rea, it was also incumbent upon them to prove that the gambling was unlawful. He sought to support his argument on three grounds: (i) the Ordinance created two types of gambling: lawful gambling and unlawful gambling; (ii) by necessary implication section 18 of the Ordinance placed the burden of proof on the prosecution to prove that the gambling was unlawful and (iii) the reasoning in a decision of a magistrate in Magistracy Criminal Appeal No. 576 of 1987.

10. Section 3(1) of the Ordinance reads:

“Save as provided in subsections (2), (3), (4), (5), (6), (7) and (8), gambling is unlawful.”

Subsections 2 to 7 list certain games to be lawful if they are played under certain conditions Subsection 8 goes on to say that gambling is lawful to the extent that it is authorized by or under the Television Ordinance or the Betting Duty Ordinance. Lotteries are also declared to be unlawful under section 4 unless they are authorized by or under the Betting Duty Ordinance, the Government Lotteries Ordinance or a licence granted under section 22. Section 2 defines gambling, game and gaming:

"gambling" includes gaming, betting and bookmaking;
"game" means a game of chance and a game of chance and skill combined and a pretended game of chance or chance and skill combined, and also means any game whatever in which -

(a) a bank is kept by one or more of the players exclusively of the others; or

(b) the chances of the game are not equally favourable to all the players including among the players, the bankers or other person by whom the game is managed or against whom the players stake, play or bet;

“gaming” means the playing of or at any game for winnings in money or other property whether or not any person playing the game is at risk of losing any money or other property.

It can be seen from these definitions that gambling has a much wider meaning than gaming while gambling includes gaming but the latter does not include the former. In my opinion, section 3(1) makes gambling unlawful with the exceptions as set out in subsections 2 to 8 and the exceptions are exhaustive.

11. Section 6 under which the charge against the appellants was brought provides:

“Any person who gambles in a gambling establishment commits an offence and is liable on conviction etc.”

The gravamen of this offence is gambling in a gambling establishment and it is important to understand that it is not gambling or gambling in any place which constitutes the offence. For this offence to be committed, two vital elements must be present, namely 'gambling' and 'gambling establishment'. Let us look at the definition.

“ ‘gambling establishment’ includes any premises or place, whether or not the public or a section of the public is entitled or permitted to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purposes of or in connection with unlawful gambling or an unlawful lottery.”

There can be no doubt, therefore, a gambling establishment is a place opened, kept or used for or in connection, with unlawful gambling. Section 18 has absolutely no relevance. This section reads:

“In any proceedings for an offence under section, 5, 7, 9 or 10, the burden of proving that any gambling was lawful by virtue of section 3 or that any lottery was lawful by virtue of section 4, shall be on the defendant.”

It was submitted by Mr. Nguyen that because of the omission of any reference to section 6 in this provision, the legislature must have, by necessary implication, placed the burden on the prosecution to prove that the gambling was unlawful in a charge brought under section 6. I am unable to accept this argument which was utterly misconceived. Once it has been proved either by positive evidence or by the presumptions under section 19, which remain unrebutted, that a person gambles in a gambling establishment, an offence under section 6 is established. I see nothing illogical or inconsistent in the omission of section 6 in section 18 because the simple answer is that you do not have lawful gambling in a gambling establishment. To say that there can be lawful gambling in a gambling establishment is not only a contradiction in terms but also the worst absurdity and a complete defeat of the legislative intention. In my judgment, the correct and only sensible interpretation is that any gambling in a gambling establishment is unlawful.

12. For the sake of clarity, I reproduce the relevant provisions in section 19 of the Ordinance:

(1) Where in any proceedings under this Ordinance it is proved that -

(a) the entry of a police officer to any premises or place under section 23(2)(a) was prevented, obstructed or delayed;

(b) any premises or place entered under section 23(2)(a) were or was provided with any means for concealing, removing or destroying gambling equipment;

(c) gambling equipment was found in any premises or place entered under section 23(2)(a) or on any person found in any such premises or place,

it shall be presumed until the contrary is proved that, the premises or place are or is a gambling establishment.

(2) Where in any proceedings under section 6 it is proved that a person was found in a gambling establishment or that a person escaped from a gambling establishment on the occasion of its being entered under section 23(2)(a), such person shall until the contrary is proved be presumed to have been gambling therein.

These presumptions could only arise if entry to the premises is made under an authorization in writing by a police officer of or above the rank of superintendant, if that officer reasonably suspects that the premises or place are or is a gambling establishment: section 23(1).

13. Mr. Nguyen conceded that section 19(1) applied and that the Dragon Inn as a whole was a gambling establishment and having rejected the evidence of D6, the learned magistrate also found that the presumption under subsection 2 had not been rebutted.

14. Mr. Nguyen adopted, for the purposes of his argument, the reasoning of a magistrate in The Queen v LAI Ping-sui and three others, Magistracy Criminal Appeal No. 576 of 1987 which came before me on appeal last month. In that case, the four appellants were convicted by Mr. Burrell of gambling in a gambling establishment contrary to section 6 of the gambling Ordinance. The appellants were found playing mahjong in premises which the learned magistrate found to be a sham club and a gambling establishment and commission was levied by the management under the guise of charges for snacks. It was agreed at the trial that the presumptions under both subsections (1) and (2) of section 19 applied and the learned magistrate found that they had not been rebutted. However, he took the matter further and in dealing with that part of his findings I said at page 2 of my written judgment:

“The learned magistrate took the view, and in my judgment correctly, that the conviction or acquittal of the appellants depended on whether the gambling was unlawful and if it was unlawful he must convict. He further said that the burden of proving that the gambling was unlawful was on the prosecution, even where the gambling itself was proved by the presumption. Mr. Fitzpatrick, Counsel for the Crown, agreed with the learned magistrate.”

Having reached the conclusion that no gambling is lawful if it takes place in a gambling establishment, I was clearly wrong when I said he was correct that a conviction or acquittal depended on whether the gambling was unlawful and in my judgment the magistrate in that case was wrong on both propositions.

15. Another ground of appeal argued by Mr. Nguyen was that the learned magistrate was wrong in permitting the prosecutor to cross-examine D6 on a cautioned statement which had not been proved by the prosecution to be voluntary and the learned magistrate was influenced by that evidence as a result. The content of that statement was merely that this appellant was recorded as having said that he did not wish to say anything when he was cautioned. I agree that the learned magistrate should not have allowed this course to be taken but I am satisfied that there is no prejudice or injustice to the appellants. The version given by D6 was so improbable that no reasonable tribunal would have believed it in any event.

16. For these reasons, the appeal is dismissed.