R. v. CHEUNG WAI HING and Others

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 750 OF 1995

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J U D G M E N T

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1. On 21 December 1995, police officers were sent to premises in Queen's Road West known as "K.C. City" to pose as gamblers. One of them was informed that he would have to become a member in order that he and his colleagues could gamble on the premises. He was charged a nominal figure of $20 in order to join. Thereafter the four undercover police officers were allowed to play mahjong, and did so for a number of hours. At the end of their game they were charged rent for the use of the room. It was following this that, having obtained a gambling authorisation, police raided rooms at those same premises. It was quite apparent that the premises had no licence and there was, as far as I can see during the trial in the Magistrates' Court, no dispute that a fee for membership was charged or that rent was charged.

2. The 2nd Defendant in the trial, (originally the 1st Appellant), had been charged with assisting in the management of a gambling establishment contrary to s.5 of the Gambling Ordinance Cap.148. She has now abandoned her appeal and I have already dismissed this.

3. These four Appellants, all of whom appeal against conviction, were D5-D8 at the trial. They were charged with gambling in a gambling establishment, on 31 December 1994, at K.C. City on the second floor of 554-556 Queen's Road West. That offence is contrary to section 6 of the Gambling Ordinance, Cap.148. Section 6 simply says: "any person who gambles in a gambling establishment commits an offence", and is liable to the financial penalties which are set out in the section.

4. By the terms of the Interpretation Section, section 2 of Cap.148, "gambling" includes gaming. "Gaming" is defined as meaning "the playing of or at any time 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".

5. "Gambling establishment" is defined as including "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 unlawful lottery".

6. With those definitions in mind, these Appellants were convicted by Mr. Andrew Kan, who was sitting as a Temporary Magistrate in the Western Magistracy.

7. The original Grounds of Appeal lodged by these Appellants rested principally on the argument that section 6 of the Gambling Ordinance was inconsistent with the Bill of Rights and, insofar as the presumptions under section 19 are concerned, which put the burden of proof on the Appellants, that this was inconsistent with Article 11(1) of the Bill of Rights. It was in order to allow the Court of Appeal, in The Attorney General v. Mak Chuen Hing Magistracy Appeal No.398 of 1996, to determine questions of a similar kind to those raised in this appeal, that this appeal was adjourned when the matter came before Duffy, J. on 1 December 1995. That case is now authority for saying that section 6 has been held not to be inconsistent with the Bill of Rights and, no doubt in the light of this, those two main grounds of appeal were abandoned.

8. Unfortunately, the prosecution was put to a very great deal of trouble by having had to prepare detailed submissions on those original grounds, and I am bound to say that it is unfortunate that, although the case of Mak was decided as long ago as 15 August, it was only this morning that the Respondent and the Court were presented with the Defence Skeleton Submission based upon the subsidiary grounds to the original Grounds of Appeal, dated November 1995. Whilst I am grateful to Mr. Pang for the work that he has done on his skeleton submission, it would have been very much more useful to have received it in advance, both from the Court's point of view and, more particularly, from the point of view of the Respondent who has, as I have already said, done a great deal of research in answering the main grounds of appeal when it must have been the decision of the Appellants' Counsel to abandon them. I think that if a lesson is to be learnt from this appeal, it is perhaps that it would help greatly if skeleton arguments and notices of abandonment could be served in better time.

9. That being said, there are other grounds which I have been asked to consider, which arise from the original notices of appeal.

10. The Appellants' arguments in summary are that the learned Magistrate firstly erred in law in finding that the room in which these Appellants were found playing mahjong, did not amount to private premises. This, in turn, it is argued wrongly precluded the defence of 'social occasion'. On the facts of the matter as presented to the Magistrate, there was the clearest evidence that anyone who went to those premises, prepared to pay for the use of them, would have been allowed into them. These were premises that provided mahjong tiles to anyone who wished to use them, provided they were prepared to pay for the privilege. It seems to me that the Magistrate was entirely correct in holding that the rooms, in these circumstances, did not amount to private premises.

11. Gaming, for the purposes of this case, would have been lawful by the terms of section 3(2) of the Gambling Ordinance, if the game was "played on a social occasion in the premises, and was not promoted or conducted by way of trade or business or for the private gain of any person otherwise than to the extent of a person's winnings as a player of or at the game". Again, there was overwhelming evidence that these premises were being conducted by way of trade or business. No one could have been under any misapprehension as to that. One of the Appellants had even said that he believed that the premises were licensed when asked about it. The Respondent realistically accepts that these Appellants were engaged on what can be termed a "social occasion" but there was at the same time evidence, upon which the Magistrate based his decision, that they were involved in unlawful gambling at a gambling establishment when faced with the totality of the evidence revealed at trial.

12. A further ground of appeal raised by these Appellants is that the learned Magistrate was wrong to find that the Appellants were gambling simply based upon their assertion that the one who had the least chips at the end of the day would buy a meal for all of them. Put shortly, it is the Appellants' contention that this was not gambling at all. The learned Magistrate, correctly in my opinion, held that it was gambling because, by the terms of section 2 of the Ordinance, gaming is defined as playing any games for winnings in money or other property, and that quite obviously must include a meal.

13. There are other grounds which are advanced, and I do not need to trouble with those in any depth. It is true to say that the 5th Appellant, Chan Nam-po, had a clear record. However, the failure of the learned Magistrate to make specific reference to that in the light of R. v. Fok Tin-yau [1995] 1 H.K.Crim.L.R. 351, was not necessary in the particular circumstances of this case. There is nothing to suggest that the learned Magistrate was unaware of the rule as it applies to good character when he came to direct himself about the evidence in this case.

14. I find that the Magistrate correctly directed himself and that, therefore, these appeals must be dismissed.