THE ATTORNEY GENERAL v. MAK CHUEN HING & 71 OTHERS

 Headnote -

          Gaming in a gambling establishment - Section 6 Gambling Ordinance Cap 148 - whether it creates an offence of absolute liability, with no possibility of a defence of honest belief or reasonable excuse - Principles of construction of criminal statutes established since Reg. v. Tolson [1889] 23 QBD 168 and applied throughout the common-law world - By necessary implication section 6 Gambling Ordinance permits a defence of honest belief or reasonable excuse - s6 Gambling Ordinance consistent with Hong Kong Bill of Rights.

          Held (Court of Appeal): Magistrate erred in concluding that s6 Gambling Ordinance created an offence of absolute liability and hence inconsistent with Article 5(1) of the Bill of Rights. Attorney-General's appeal allowed.

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JUDGMENT

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Litton V-P:

Introduction

1. This matter comes before us on a case stated by a magistrate, Mr W.J. Eccleton, seeking our opinion on questions of law. The appellant is the Attorney-General. The respondents are persons charged with having gambled in a gambling establishment, in December 1994, contrary to section 6 of the Gambling Ordinance, Cap 148. As formulated in the case, the questions are as follows:

2. As to (2), it is difficult to understand why the question of law was formulated in that way. If the magistrate was right on question (1) - that is, that s6 of the Gambling Ordinance is inconsistent with the Bill of Rights - then, by the operation of section 3(2) of the Hong Kong Bill of Rights Ordinance, Cap 383, section 6 has, since 8 June 1991, been repealed. That is the end of the matter. Question (2) becomes otiose.

3. As to (3), it raises no question of law. It is a matter purely of case management. We do not know what evidence might have been led by the prosecution if the case had proceeded to trial. For all we know, it might have taken many days. There were 72 defendants involved and the case against each might have differed in detail. Normally, it would have been preferable if the challenge under the Bill of Rights was made after the conclusion of the prosecution case. But the circumstances here might have been exceptional. If, as a matter of discretion, the magistrate considered it right to entertain the challenge under the Bill of Rights first, without hearing the evidence, that was within his jurisdiction. No question of law is involved in that process.

4. Ultimately, there is only one question of law for our decision: Whether s6 of the Gambling Ordinance is inconsistent with the Bill of Rights.

Article 5(1) Bill of Rights

5. The only Article in the Bill of Rights said to be engaged is Article 5(1). It says:

          (1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

6. In construing the Bill of Rights, regard must be had to its international origin: see section 4, Hong Kong Bill of Rights Ordinance. Accordingly, the expression "in accordance with such procedure as are established by law" in Article 5(1) means such legal procedures as meet the minimal requirements of fairness impliedly agreed to by the signatories to the International Covenant on Civil and Political Rights. The question then boils down to this: Does s6 of the Gambling Ordinance meet those standards, or is it so harsh and oppressive, or so arbitrary in its application, that it falls foul of Article 5(1)?

The scheme of the Gambling Ordinance

7. Save in the specific circumstances described in subsections (2) to (8) of section 3, gambling is unlawful in Hong Kong. Take as an example the playing of cards for stakes in a restaurant. Such gaming is lawful if it occurs on a social occasion, in a licensed restaurant, where no fee is charged for admission, no-one concerned in managing the restaurant is involved, the game does not involve a bank kept exclusively by one or more of the players, and the game is not conducted for gain other than the extent of the winnings as a player: see section 3(3).

8. Section 6 says:-

          "6. Gambling in a gambling establishment

          Any person who gambles in a gambling establishment commits an offence and is liable -

"Gambling establishment" is widely defined in section 2 and includes any premises or place used for the purposes of or in connexion with unlawful gambling.

9. The scheme of the Ordinance is therefore reasonably clear. Restaurants, clubs etc are not gambling establishments and gaming may lawfully take place in such premises if the requirements as set out in the relevant subsections in section 3 are satisfied. If any of those requirements are not satisfied then the gaming becomes unlawful, and the establishment becomes a gambling establishment.

Proof of the offence

10. Gambling takes place in a large variety of places and of circumstances. In a prosecution for an offence under section 6, the onus is on the prosecution to satisfy the court that, on the evidence adduced, the activity amounts to unlawful gambling. Of course, in this regard, the prosecution is assisted by the presumption in s19(2). This court has held, in Reg v. King Capital Club Co. Ltd.[1991] 1 HKLR 88 that in establishing guilt under s6, there is no onus on the prosecution to show that the accused knew that the place where the gaming took place was a gambling establishment. In this sense the offence under s6 is one of strict liability.

11. Does it follow that s6 is inconsistent with Article 5(1) of the Bill of Rights?

The magistrate's approach

12. The magistrate approached his task of interpretation in this way:

13. In considering the question of inconsistency with Article 5(1) of the Bill of Rights, the magistrate referred to Bokhary JA's judgment in A.G. v. FONG Chin-yue [1995] 1 HKCLR 193 at 200 where he said:

"Of course, that is not to say that the express wholesale abolition of each and every mental element in our criminal law would be consistent with the Bill of Rights. If effective, such a measure would leave no one with liberty or security of person. And of course the right to liberty and security of person is a right secured for everyone under Article 5(1) of the Bill of Rights."

14. The magistrate concluded as a matter of construction that s6 created an absolute offence, with no possibility of a defence of honest belief, or reasonable excuse. The fact of gambling in a gambling establishment was, on the magistrate's interpretation of s6, without more, enough to have a person convicted and imprisoned, even though that person had every reason to believe that it was not a gambling establishment: for instance, reasonably believing it was a licensed restaurant: the accused having gone there to play mahjong at a wedding feast but, unbeknown to him, the license granted under the Public Health and Municipal Services Ordinance had in fact expired, rendering gaming there unlawful: see section 3(3)(a)(i) of the Gambling Ordinance. That, on the magistrate's interpretation, is the harsh effect of s6.

15. Having reached this point the magistrate concluded (though it is not spelt out in the stated case itself) that the "law" justifying the arrest and detention of accused persons - namely s6 of the Gambling Ordinance - fails to meet the minimum standards of fairness set out in Article 5(1): the words "in accordance with such procedure as are established by law" in Article 5(1) not being capable of accommodating such a harsh provision as s6. This approach to the application of Article 5(1) of the Bill of Rights is correct, but is the magistrate right in his interpretation of section 6 of the Gambling Ordinance?

Strict liability

16. As Bokhary JA said in Fong Chin-yue at p200, the common law rules of construction themselves have a high human rights content. No court would ascribe to the legislature the intention of creating a crime of absolute liability, with no possibility of a defence of honest belief or reasonable excuse, unless the context admits of no other view: particularly where the commission of the offence may result in imprisonment.

17. In Fong Chin-yue the court had the task of construing various statutory offences under the Dutiable Commodities Ordinance, Cap 109. Like section 6 of the Gambling Ordinance, words such as "knowingly" "without reasonable excuse" are absent from the relevant provisions of that Ordinance. Take, for instance, s17(1) which makes it an offence to deal with dutiable goods except in accordance with the provisions of that Ordinance. On a literal interpretation, the offence is committed irrespective of the accused's state of mind: reasonable belief that duty has in fact been paid on the goods in question, on a literal reading of s17(1), affords no defence. But the court rejected this "black-letter" approach, and in so doing found the provisions of that Ordinance consistent with the Bill of Rights, reversing the magistrate in that regard.

18. Since Reg v. Tolson [1889] 23 QBD 168 the common law courts have evolved the defence of reasonable mistake of fact, the burden of proving this on a balance of probabilities resting upon the defence. The proposition is simple. The result is reached by the proper construction of the statute creating the offence. The prosecution does not have to prove guilty knowledge, but it is open to the accused to show on a balance of probabilities that he reasonably although mistakenly held an honest belief. This approach to construction is accepted all over the common law world: see Fong Chin-yue at p205. This is said by Lord Diplock in Sweet v. Parsley [1970] AC 132 at 163-B to be a general principle of construction:

"... even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent." (Emphasis added).

19. Upon such a construction of the statute creating the offence, the court strikes the balance which the legislature is deemed to have intended. If the prosecution has to prove the defendant's knowledge beyond reasonable doubt, it may be easy for the guilty to escape. But it would be much harder for the guilty to escape if the burden of disproving knowledge is thrown on the defendant. And if that were done, innocent people would be able to satisfy the court of their innocence on a balance of probabilities: see Lord Pearce in Sweet v. Parsley at 157D-E to this effect. The result is that the offence is one of strict liability, but not of absolute liability.

Proper construction of s6

20. Applying that principle of construction to s6, knowledge that a restaurant is properly licensed, or a club fulfills the safety conditions required by law would be a state of mind. So would a reasonable, although mistaken, belief that the legal requirements have been complied with. Assuming that the ingredient of the offence which the prosecution has to prove is that the restaurant is unlicensed, or the club does not meet the safety conditions imposed by law, thereby rendering the premises a gambling establishment: section 6 does not require the prosecution to prove, beyond reasonable doubt, knowledge of those facts on the part of the defendant. But there is no reason in principle why proof by the defendant, on a balance of probabilities of his belief that the restaurant is licensed, or the club complies with the safety conditions, should not be a defence. This arises by necessary implication of law.

21. This in effect is the construction placed upon s6 by this court in The King Capital Club case: see p92-I where Jones J, delivering the judgment of the Court, said:

"We agree with Mr Reading, who appeared for the Crown, that the legislature deliberately omitted the word 'knowing' or 'knowingly' from s.6 having regard to the conditions prevailing here. In our view strict liability effectively promotes the objects of the legislation. We accept that this places a heavy burden upon those who wish to gamble but at the same time do not wish to offend the law."

Admittedly, the words "heavy burden upon those who wish to gamble" are somewhat ambiguous. But, in the context of an offence of strict liability, which the court found s6 to be, this could only mean a burden on the balance of probabilities to show honest belief or reasonable excuse.

Conclusion

22. The magistrate, at p14 of the stated case, said:

"I cannot see how a provision to allow an innocent Defendant to prove on the balance of probabilities that he had a reasonable belief that the premises were those in which lawful gambling was permitted would handicap the giving of effect to this legislation and I cannot see how the possible conviction of some innocent people would lead to greater vigilance on the part of the other gamblers, it being a defence that should only be available to those who have exercised some vigilance and who held an honest belief that it was a lawful place of gambling."

23. He thought that this result could only be achieved by legislative amendment. He failed to appreciate that the application of ordinary principles of construction, as evolved by the common law courts, already leads to this result. He accordingly fell into error.

24. The answer to the question posed in the case stated is that the magistrate has erred. Section 6 of the Gambling Ordinance is consistent with the Bill of Rights.

Bokhary JA:

25. I agree.

26. Section 6 of the Gambling Ordinance, Cap. 148, makes it an offence punishable by imprisonment as well as a fine to gamble in a gambling establishment.

27. The term "gambling establishment", section 2 of the same Ordinance provides, "includes any premises or place, whether or not the public or a section of the public is entitled to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purpose of or in connection with unlawful gambling or an unlawful lottery."

28. When is gambling lawful and when is it unlawful? The answer is provided in subsection (1) of section 3: gambling is unlawful except as provided in the other subsections of the same section. In other words, gambling is unlawful unless it comes within those lawful exceptions.

29. What if the physical acts of someone charged under section 6 in fact fell outside those exceptions but would have come within them if the facts were as he reasonably believed them to have been? To hold that he would be guilty even if he were to prove on a balance of probabilities that such was his state of mind would mean that the offence created by section 6 does not entail a guilty mind at all and is therefore an offence of absolute liability.

30. But it is not such an offence. Rather it is an offence of strict liability. In other words, the prosecution does not have to prove a guilty mind. But proof by an accused - on a mere balance of course - of a reasonably held innocent belief is a good defence.

31. It is clear that the offence is a strict rather than absolute one. That becomes clear once the relevant provisions are construed in conformity with the principles identified by this Court in AG v. Fong Chin-yue [1995] 1 HKCLR 193. And it is also what emerges from a proper reading of this Court's decision in R v. The King Capital Club Co. Ltd [1991] 1 HKLR 88 where (as one sees at pp 92-93) the liability is termed "strict" and reference is made to the "burden" on the "innocent" gambler.

32. The Magistrate against whose decision the Attorney General now appeals by way of case stated took the view that section 6 created an offence of absolute liability and had been repealed by section 3(2) of the Hong Kong Bill of Rights Ordinance, Cap. 383, because the nature of the absolute offence created was so extreme as to be inconsistent with the right to liberty and security of person secured by article 5(1) of the Bill of Rights.

33. However, the true construction of section 6 of the Gambling Ordinance is that it does not go to that extreme. Charges thereunder do admit of a reasonably held innocent belief defence. The section is accordingly Bill consistent and extant.

34. It comes to this. The Magistrate thought that section 6 created an offence of absolute liability, had in the circumstances been Bill repealed and really ought to be replaced by a newly enacted provision creating an offence of strict liability. In truth however, the appropriate law is already in place since the liability under section 6 in its present form is not absolute but merely strict.

Ching JA:

35. I agree that for the reasons already given this appeal succeeds. I need only add that for my part the matter is effectively concluded by the judgment in The Queen v. Choi Kai On [1995] 1 HKCLR 79.