THE QUEEN v. YEUNG KWONG YUI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1470 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted on an offence of managing a gambling establishment and was fined $15,000.00. The brief facts were that on the 3rd May 1990, a police party raided a village at Yau Mei Sun where some 20 persons including the appellant were seen to be gathered under a canopy playing pai kau.

2. It was the evidence of the police sergeant that the appellant was heard to utter words "this money is commission" and was seen to put money into a brown box. The police shouted, the players dispersed, and subsequently the appellant and the eleven others were arrested. Gambling equipment was seized.

3. The magistrate was satisfied that the equipment that had been seized was being used for unlawful gambling and went on to find that the only and overwhelming inference was that it was controlled and organised by the appellant who was withdrawing commission. The magistrate had heard evidence from an expert as to the meaning of "Lok Shui". It was the expert's evidence that the words "Lok Shui". could refer to commission, being money taken by the banker from dividends being paid to the gamblers, but could also refer to a situation where a gambler had won a considerable sum of money and had given some of this as a gift to the staff of the establishment.

4. The ground of appeal relied upon is that the magistrate erred in finding. that the: only inference to be drawn was that the appellant was taking commission and was therefore the person managing the gambling establishment. Mr Bailey, for the Crown, does not seek to contest the appeal. On the evidence which came from the police officer and from the gambling expert, it is clear that there was an inference which could be drawn other than the one which the magistrate drew, that is that the appellant could have been one of the gamblers or one of the staff of the establishment. Where there is evidence from which an inference other than one of guilt can be drawn then the inference of guilt cannot be drawn.

5. Accordingly, the appeal is allowed, the conviction is quashed and the fine is to be remitted to the appellant. In addition the money found on the appellant at the time of arrest, produced as exhibit P.11, will be returned to him.