THE QUEEN v. TANG TAK MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 760, OF 1988

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BETWEEN

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J U D G M E N T

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1. The Appellant was charged with book-making contrary to section 7(1)(a) of the Gambling Ordinance, the particulars being that on the 27th January 1988 inside the room 607 Cheung Fung House, Cheung Wah Estate, Fanling, he did engage in book-making

2. On the same charge sheet, another person name CHAU Sai-lung was charged as the 2nd Defendant on a separate charge of betting with a book-maker, contrary to Section 8 of that same Ordinance. Both appeared in Court together to answer the charges. The 2nd Defendant pleaded guilty and this Appellant pleaded not guilty.

3. After the conviction of the 2nd Defendant, he said in mitigation "I just ask D1 to place the bets for me". The Court then said to him "Are you saying he was not a book-maker and therefore you plead not guilty", and the 2nd Defendant replied "No, nothing further to say". He was then fined and the Appellat case was adjourned to another date for trial. Although the Appellant came before a different magistrate from the one who took the pleas in the first instance, the magistrate before whom the Appellant was tried did indicate that he had seen the brief summary of facts on file in connection with the 2nd Defendant having been dealt with on the (b) charge.

4. There was an application by Mr. Roderick Murray of counsel who then appeared for the Appellant seeking to have the magistrate disqualify himself because of what he knew of the background of the case. The magistrate, however, decided to proceed with the hearing, eventually convicting the Appellant.

5. Briefly the evidence at the trial consisted of that of some police officers who Went to the premises mentioned in the charge armed with an authorisation under the Gambling Ordinance

6. In the premises, they found the three telephones, one being a portable telephone one a wireless domestic telephone, and the other, an ordinary-hand set telephone. There was also a calculator, some ball-point pens, paper slips and a book. One of the paper slips was in fact a betting slip. The Appellant was on the premises at the time with his sister-in-law.

7. The police officers whilst they were there answered a number of telephone calls and subsequently were able to connect a tape recorder. found in the premises to the telephone for the purposes of recording incoming calls. In the course of these telephone calls at least two people rang up and made bets on horse races.

8. In the light of that evidence, one could be excused for thinking that there could be no other inference be drawn than that the Appellant was the book-maker on those premises. He, however, when he was cautioned and again in his evidence said that the persons making the calls and telephoning bets to him were friends whom he was helping as a conduit pipe as it were through which their bets eventually went to a book-maker. He said that he received no profit from his role and that his motive was to secure  good tips for himseif because one of his friends apparently had a reputation as a successful tipstar.

9. At the trial the central issue was whether the Appellant was doing what he was doing in the course of trade or business, a necessary element in proof of a charge of book-making, or whether he was doing it for the reason which he gave. it would appear on the Appellant's own version that at the very least he was aiding and abetting somebody else to engage in bookmaking, However, this point was not raised at the trial nor on the hearing of this appeal until I asked the question in passing of Mr. Laskey during the course of his submissions.

10. In his attack on the magistrate's decision to convict, Mr. Laskey relies on three grounds. He submits that he learned magistrate should have disqualified himself because of his knowledge before the trial commenced of what had taken place in respect of the 2nd Defendant, especially since the 2nd Defendant was one of the persons who did telephone when the police were at the premises.

11. As to this, the learned magistrate himself, when he mentioned that he had knowledge of brief summary of facts, went on to say this: "Accordingly there is no need for the prosecution to make any opening statement unless the prosecutor feels it needs to add to the information provided in the brief facts, that as far as the defence is concerned, I will give the allegations in the brief facts as being limited to the context of an opening statement".

12. In the oral reasons delivered at the end of the evidence and submissions, the magistrate makes no reference to the 2nd Defendant other than to say this:  "Defendant maintains that he received and passed on the bets out of friendship and to get the benefit of the 2nd Defendant's horse selections". In his Statement of Findings, the magistrate makes no reference to the 2nd Defendant as such at all. Although the Appellant's counsel at the trial did ask the learned magistrate to disqualify himself, I do not think that there was a sufficient basis for him to accede to that request. I accept the submission of in Mr. Pang that a professional judge, such as the magistrate in this case is, is trained to ignore material which may come to his notice and which may have a prejudicial effect on the case of the particular Defendant then before him. I think that the learned magistrate in what he said at the beginning at the trial simply meant that he was treating the brief facts as the equivalent of an opening statement, a practice which, I understand, from the many magistrates court files which have come before me in the last 6 weeks, is commonly followed in the magistrates courts. The reference to the 2nd Defendant in his oral reasons for his decision, I see as nothing more than a shorthand method of describing the person the Appellant was talking about when he was giving his reason for accepting the bets. Accordingly, I find no merit in that ground.

13. The 2nd ground of appeal contends that the learned magistrate erred in not considering whether one of the witnesses called for the prosecution was an expert witness before hearing his evidence regarding the documentary exhibits. The particular Witness was a police officer who claimed to have had considerable experience dealing with the enforcement of the Gambling Ordinance. He said that he had dealt with 30 odd cases altogether and that in 1986 he had undertaken an "advanced gambling  course". whatever that may be, but he did go on to say that he had given expert evidence in 2 or 3 gambling cases and in particular in relation to book-making cases. It is true that there was no debate before he gave his evidence as to whether he was properly qualified to give such evidence whether he was properly within the category of expert witnesses. However, it seems to me that even if this submission succeeded it could make no difference because what the witness did give evidence of was the meaning of certain notations on the betting slip. It would take no expert qualified Dyan "advanced gamboling course" to persuade the people in Hong Kong that "W" 'is an abbreviation for "Win" and "P" is an abbreviation for "Place" and that when you get certain figures in juxtaposition with one another they can mean that the person has had a bet for win, a bet for place, a bet for win a bet for place, a bet for quinella or all up bet and so on. That was all really than the witness gave evidence about. The magistrate could have come to the same conclusion without the benefit of the evidence of the graduate in the advanced gambling course, Accordingly, I find no substance in that ground.

14. Ground 3 complains that the learned magistrate failed to apply the proper test in deciding that the Defendant's guilt could be based on inferences from the evidence Mr. Laskey's point here was that the Appellant's explanation for receiving the bets was not so incredible as to be immediately cast aside. He contends that the learned magistrate should have looked at this as a possible explanation for his conduct and in evaluatiny the evidence, the magistrate did not properly conclude that the inference that he was doing it by way of trade or business was the only reasonable inference in the circumstances.

15. The learned magistrate said this:" I found that I could not believe the Appellant's claim that he was simply a conduit for the bets with the only benefit to him being the knowledge of what horses CHAU Sai-lung bet on. Such a claim seems to defy a commonsense assessment of the activities of the Appellant that afternoon and certainly flew in the face of the evidence of the articles founded in the premises, the telephone calls received and the admission made at the time that at least the bets of Wai Shek were not passed on". He then went on to say that he rejected the Appellant's explanation and found that there was an element of trade or business in his activity.

16. The reference to the admission that the bets of Wai Shek were not passed is to a cogent reason for not accepting the Appellant's explanation. Mr. Laskey has pointed to the answer which the appellant gave in his cautioned statement where he said "I did not place bets on horses for Wai Shek" but as Mr. Pang points out the Appellant had admitted that Wai Shek and Ah Shek are to him one and the same person, that the evidence of the police officers that two telephone calls were received for a person who said he was Ah Shek making bets and that Ah Shek's name appeared on the betting slip in that context, the appellant's statement that he did not place bets on horses for Wai Shek could only mean that the bet place by Ah Shek had not been relayed by the Appellant to a book-maker, and that therefore he did in effect accept those bets himself.

17. I accept Mr. Pang's point that when he asked the rhetorical question: ''How can you accept the bet and yet not engage in trade or business?" I think that the learned magistrate could come to no other conclusion than that the Appellant was engaging in bookmaking. There is, therefore, no basis on which I can interfere with the learned magistrate's decision to convict and accordingly, I must dismiss the appeal.