HKSAR v. LAU WING KUN AND ANOTHER

CACC 524/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 524 OF 1999

(ON APPEAL FROM DCCC 1422/1998)

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J U D G M E N T

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Hon Mayo VP:

1. The 1st and 2nd applicants were respectively the 1st and 3rd defendants at the trial below in the District Court. It will be convenient to refer to them as the 1st and 3rd defendants. They were both charged together with five other defendants with a conspiracy to engage in bookmaking.

2. The re-amended charge read as follows:

"1st Charge (against D1, D2, D3, D4, D5, D6 & D7)
Statement of Offence

Conspiracy to engage in bookmaking, contrary to Section 159A of the Crimes Ordinance, Cap.200, and Section 7(1)(a) of the Gambling Ordinance, Cap. 148.

Particulars of Offence

LAU Wing-kun, TSE Ping-wang, TSANG Lim-cho, NG Man-kin, LAU Ka-fai, CHUNG Hiu-leung and HUI Chun-wah, between 1st day of June 1997 and 10th day of June 1998, in Hong Kong, conspired together and with LEUNG Man-hei, TSANG Hsiang-ching and TONG Kin-wai, to engage in bookmaking by:-

(1) producing a computer programme designed to assist in the receipt, storage, processing and settling of bets on overseas football matches;

(2) teaching members of the syndicate or learning how to use the said computer programme;

(3) renting premises for the purpose of receiving, processing and settling bets on overseas football matches and equipping the premises with a computer, telephones, recording and other equipment for use in connection with those purposes;

(4) accepting bets on overseas football matches;

(5) using the computer and the installed programme to assist them to receive, store, process and settle the said bets."

3. D2 was also charged with two offences of offering an advantage contrary to s 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

4. After a lengthy trial before H H Judge Wright D1 and D3 were convicted on the conspiracy count and D2, although acquitted on the conspiracy count, was convicted of the other two offences he was charged with. Although he is seeking leave to appeal against his convictions the Chief Judge of the High Court has ordered that his application will be heard separately from the present applications.

5. On the conspiracy count only D1 and D3 were convicted. The other defendants were all acquitted.

6. D1 and D3 both seek leave to appeal against their convictions. For the reason which has been given these applications are confined to the conspiracy.

7. On 10 June 1998 officers of the ICAC conducted a raid at a flat at Union Plaza, Fanling. D3 together with D4, D5, D6 and D7 were all present in the flat at the time of the raid. A computer and a computer programme and documents were seized by the officers. Simultaneously with this raid two other raids were undertaken by ICAC officers. One was at the residential home of D1 being a flat at Lei King Wan and the other at D2's residence in Discovery Bay.

8. A number of items were seized in the raid at D1's premises. Included amongst these was a document in a similar format to that adopted in the hard disc forming part of the computer programme seized at the Fanling flat.

9. Various statements were made by the defendants and a considerable amount of time was expended at the trial on the admissibility of these statements.

10. According to the prosecution case in June 1997 D1 was introduced to PW2 and PW3 who both possessed a measure of expertise in programming computers. These witnesses gave evidence of the discussions they had with D1 on the subject of programming a computer to facilitate storing and computing information on gambling on football matches and for the retrieval of data. The first meeting they had was at a restaurant when the feasibility of the proposal was discussed. Thereafter a number of further meetings took place. D1 explained what he required from the programme and PW2 and PW3 advised him on what was possible. Eventually agreement was struck between them that PW2 would provide the necessary programme for $50,000 which would be paid to him by instalments.

11. There were also discussions concerning the purchase of a Packard Bell computer which would be used to operate the programme. This was purchased and installed at a flat at Lei King Wan.

12. PW2 and PW3 visited the flat on a number of occasions to make minor modifications or refinements to the programme. Significantly PW2 transferred a copy of the programme to his own computer so that if all or part of D1's programme was deleted from his computer it would be possible to reinstate the programme with a minimum of inconvenience. PW2 produced his copy of the programme at the trial.

13. When PW2 and PW3 were attending at the Lei King Wan flat they noticed a number of telephone calls being received by people in the flat who then made entries to the computer.

14. Evidence was adduced that D1 paid the rent of the Lei King Wan flat up to January 1998. Shortly after this the Fanling premises were rented. D3 paid the rent for these premises.

15. PW2 was able to give evidence that the computer and the computer programme which was seized at the Fanling raid were the same as those he had assisted in installing at the Lei King Wan flat.

16. The prosecution also called a witness PW10 who was accepted as being an expert on gambling. When he gave his evidence he said that he had studied all the documents which had been seized from the raids. His evidence was to the effect that a bookmaking operation had been in operation.

17. Neither D1 nor D3 gave evidence on the main issue at the trial.

18. For the reasons he gave the Judge was satisfied at the appropriate level that D1 and D3 were guilty of the conspiracy count as charged.

19. The 1st ground of appeal is in this form:

"1.1 The learned District Judge erred in ruling that the 1st Charge was valid because:

(a) the charge was bad for duplicity in that the Particulars of Offence included allegations both of acts of 'engaging' in Bookmaking and 'assisting' in Bookmaking; and

(b) the Particulars of Offence was in breach of rules 3 & 4 of the Indictment Rules Cap. 221 by its omission of the essential element of 'by way of trade or business' and inclusion of allegations which were clearly of 'assisting' and not 'engaging' in Bookmaking, the latter being the offence of the conspiracy charged.

1.2 The learned District Judge erred in law in finding that the conspiracy between the two Applicants herein to be the single conspiracy that was charged in that, by his own findings, the evidence established another conspiracy between the 2nd Applicant and the 4th to 7th accused."

20. Mr Griffiths SC for D1 and D3 submitted that O'Connor, J had been right when he had concluded in R v FUNG Sik-chung [1985] HKLR 387 that s 7(1)(a) and 7(1)(c) of the Gambling Ordinance, Cap. 148 created separate and distinct offences.

S 7 reads:

"7. Bookmaking

(1) Any person who -

(a) engages in bookmaking, whether on one occasion or more than one occasion;

(b) holds out in any manner that he solicits, receives, negotiates or settles bets by way of trade or business; or

(c) in any capacity assists, either directly or indirectly, another person in bookmaking,

commits an offence and is liable -

(i) on summary conviction to a fine of $5,000,000 and to imprisonment for 2 years; or

(ii) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 7 years.

(2) No prosecution shall be instituted under subsection (1)(c) without the consent of the Secretary for Justice but if on the trial of any person for an offence under subsection (1)(a) or (1)(b), it is not proved that the accused is guilty of an offence under either one of those subsections but it is proved that the accused is guilty of an offence under subsection (1)(c), the accused may, notwithstanding the absence of consent of the Secretary for Justice to the institution of a prosecution under subsection (1)(c), be convicted of an offence under subsection (1)(c) and dealt with accordingly."

21. One of the factors which had been weighed by O'Connor, J had been the requirement in s 7(2) to obtain the consent then of the Attorney General for a prosecution under s 7(1)(c) whereas there was no such requirement for prosecution under s 7(1)(a).

22. Mr Griffiths argued that it was evident from the amended particulars of the charge that what was being alleged by the prosecution was that these defendants had both engaged in bookmaking and had also assisted in this endeavour. In this connection he referred to the five matters particularised in the re-amended charge. The first three items and the fifth clearly referred to assisting in bookmaking. It was arguable that the fourth did also.

23. If the charge is read as a whole it is quite clear that what is being alleged is that the named conspirators are alleged to have conspired to engage in bookmaking contrary to s 7(1)(a). Although the word "assist" is used in items 1 and 5 it is manifest that this refers to the computer function and not to the person using the computer.

24. Even if this is wrong no question of duplicity can arise in the present case.

25. S 159A(1) of the Crimes Ordinance, Cap. 200 provides:

"159A. The offence of conspiracy

(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either -

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question."

26. It will be noted that the subsection refers to "offence or offences".

27. Mr Griffiths attempted to overcome this difficulty by arguing that the legislature must have contemplated that the offences referred to in the section must be of a kindred nature. I can see no reason to read into the section such a requirement. Even if I was disposed to do so engaging in bookmaking and assisting another person to do so would undoubtedly be of a very similar nature.

28. There can be no question of the re-amended charge being duplicitous.

29. That then leads to the next complaint which is that Rules 3 and 4 of Indictment Rules, Cap. 221 have not been complied with as there is no averment in the particulars of the charge that the bookmaking was by way of being a trade or business.

30. Indictment Rules 3 and 4 are as follows:

"3. Statement of offence in indictment

(1) Subject to rule 4, every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

(2) An indictment for a specific offence shall not be open to objection in respect of its form if it is framed in accordance with a form of indictment for that offence which has been approved by the Chief Justice.

(3) Notwithstanding paragraph (1), a judge may order further particulars of an offence stated in an indictment to be delivered in any case in which he deems it expedient to do so.

4. Indictment for specific statutory offence

Where the specific offence with which an accused person is charged in an indictment is one created by or under an Ordinance or a national law applying in Hong Kong, then, without prejudice to the generality of rule 3 -

(a) the statement of offence shall contain a reference to the provision in the Ordinance or national law applying in Hong Kong creating the offence;

(b) the particulars shall disclose the essential elements of the offence:

Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it; and

(c) it shall not be necessary to specify or negative an exception, exemption, proviso, excuse or qualification."

31. It will be observed that the requirement to specify the essential elements of the offence is qualified where the failure to specify it does not prejudice or embarrass the accused person.

32. There can be no question of any prejudice or embarrassment in the present case. The averment was not a material averment.

33. "Bookmaking" is defined in s 2 of the Gambling Ordinance as:

"Bookmaking" (收受賭注) means the soliciting, receiving, negotiating or settling of a bet by way of trade or business whether personally or by letter, telephone, telegram or by any other means;"

34. Having regard to the evidence which was lead before the Judge there can be no doubt that there was ample evidence which if accepted would have amounted to the bookmaking constituting a trade or business.

35. The final complaint made in this ground is that the Judge dealt with the case on the basis that there was one single conspiracy when on his own findings there was a subsidiary conspiracy. Reliance is placed upon the passage at p. 42 of the appeal bundle:

"On the evidence before me these Accused did not know of the existence of the First Accused or that there were other parties or was another party. This must mean that they had to be unaware of the existence of an existing conspiracy between the Third Accused and another or others which must mean that these Accused would have lacked the requisite intention to attach themselves to that existing conspiracy.

There would be no difficulty in a finding that there was a conspiracy between the Third Accused and these Accused nor would there have been any difficulty had these Accused been charged with substantive offences under sec. 7(1) of the Gambling Ordinance. As it is, on the evidence before me I am unable to be satisfied that they had become part of the overall conspiracy. It is thus unnecessary for me to consider other facets in respect of these Accused."

36. There is no substance to this complaint. The fact that the evidence may disclose the existence of some further conspiracy is of no consequence.

37. This can be seen from the passage at p. 856 of the judgment of Lawton L.J. in Greenfield [1973] 57 Cr App R 849:

"A charge which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the accused being a member of a conspiracy other than the one charged."

38. What is very clear is that on the evidence which was before the Judge there was one conspiracy which related to the events occurring at the Lei King Wan flat and the Fanling flat. There was continuity in the events which occurred. The computer and the programme which were the subject of the Fanling raid were on the evidence of PW2 the same ones as those installed at the Lei King Wan premises.

39. The 2nd ground of appeal is as follows:

"2.1 There was a material irregularity in that the learned District Judge:

(a) failed to consider and make findings on the essential elements of the 1st Charge;

(b) failed to consider and make findings on any of the specific allegations in the Particulars of Offence in respect of 'engaging in bookmaking';

(c) took into consideration opinion evidence of PW2 & PW3 who were not called as and were not experts on gambling; and

(d) failed to consider what weight, if any, was to be given to the 'dock identification' of the 2nd Applicant by PW2 as having been seen by PW2 at the Lei King Wan premises.

"2.2 In consequence, the learned District Judge had erred in drawing the inference that there was a conspiracy to engage in bookmaking between the Applicants."

40. It is convenient to consider paragraphs (a) and (b) together.

41. The nature of the conspiracy charged has already been outlined earlier in this judgment. It was also outlined in counsel's opening at the commencement of the trial below.

42. As has been pointed out by Mr Reading SC who represented the respondent in his very helpful skeleton argument all the defendants were very well aware of the nature of the conspiracy which was being alleged against them.

43. The Judge, who is a very experienced Judge, was fully aware of the elements of the offence charged. He gave comprehensive reasons why he accepted the evidence he did and why he rejected other evidence and submissions.

44. The question which had to be considered by the Judge was whether or not it was proved at the appropriate level that a particular defendant was a party to the conspiracy charged.

45. See Greenfield already cited and in re Attorney General's Reference (No. 1 of 1987) [1988] 1 HKLR 375.

46. On pages 33 to 39 of the appeal bundle the Judge outlines the prosecution cases against D1 and D3. It was an overwhelmingly strong case and it would have been surprising if the Judge had not been satisfied that these defendants had been guilty as charged.

(c) It is clear that PW2 and PW3 gave evidence relating to the computer programme and what it was capable of achieving. The expert evidence relating to gambling was given separately by PW10 who was accepted at the trial as an expert on this subject.

(d) Mr Griffiths accepted before us that the Judge had properly exercised the discretion reposed in him in connection with the dock identification of D3. His complaint was the weight which the Judge had attached to the identification.

47. There is no merit whatever in this complaint. This was not a case where identification was a live issue. PW2 in his evidence had said that he had seen D3 on several occasions at the Lei King Wan flat and at a meeting in a restaurant. In addition to this D3 made a number of admissions in his cautioned statement. The so called dock identification was in reality establishing that PW2 recognised D3.

48. In my view none of the grounds of appeal can be sustained.

Hon Leong JA:

49. I agree and have nothing to add.

Hon Keith JA:

Introduction

50. At the conclusion of the hearing, I agreed that the application for leave to appeal had to be dismissed, but I wish to add a few words of my own on ground 1.1 of the Perfected Grounds of Appeal out of deference to the arguments of Mr John Griffiths SC for the Applicants. There is nothing which I wish to add to what Mayo V-P has said on the other grounds of appeal.

Separate offences

51. Section 7(1) of the Gambling Ordinance (Cap. 148) ("the Ordinance") criminalises three different activities: engaging in bookmaking (section 7(1)(a)), holding oneself out as engaging in bookmaking (section 7(1)(b)) and assisting another to engage in bookmaking (section 7(1)(c)). These three activities were held by O'Connor J in R. v. Fung Sik Chung [1985] HKLR 387 to constitute three separate offences. Thus, a person who merely assists another to engage in bookmaking contrary to section 7(1)(c) cannot be convicted of engaging in bookmaking contrary to section 7(1)(a). And a charge which alleges both a contravention of section 7(1)(a) and a contravention of section 7(1)(c) is void for duplicity.

The first charge: the wrong offence

52. These two consequences of section 7(1) creating three separate offences provided the foundation for the attack which Mr Griffiths made on the conviction of the Applicants on the first charge. His wide-ranging submissions boiled down, in my opinion, to two arguments. The argument which comes first analytically went like this. The particulars of what the Applicants were alleged to have conspired to do amounted to an allegation that they had conspired to assist others to engage in bookmaking contrary to section7(1)(c). That was not the conspiracy alleged in the statement of the offence, namely a conspiracy to engage in bookmaking contrary to section 7(1)(a). This mismatch between the statement of the offence and the particulars of it meant that the Applicants could not have been convicted of the offence charged in the statement of the offence, and that rendered the charge null and void.

53. I accept without reservation the importance to be attached to the particulars of an offence. They identify the essential features of the charge and the essential elements of the offence. But the argument breaks down, in my opinion, because it is based on a false premise. It is not the case that the particulars of what the Applicants were alleged to have conspired to do amounted to an allegation that they had conspired to assist others to engage in bookmaking contrary to section 7(1)(c). In my view, the particulars of what the Applicants were alleged to have conspired to do amounted to an allegation that they had conspired to engage in bookmaking contrary to section 7(1)(a).

54. There are three comments I wish to make by way of amplification of that conclusion. First, I have not overlooked that "bookmaking" is defined in section 2 of the Ordinance as meaning "the soliciting, receiving, negotiating or settling of a bet by way of trade or business ...." However, those activities do not take place in a vacuum. Thus, the soliciting of a bet is not limited to asking potential gamblers to place a bet, the receiving of a bet is not limited to the actual acceptance of the gambler's bet or the receipt of his stake, and the settling of a bet is not limited to the actual payment of winnings. These features of a bookmaking operation can only be done effectively when systems for settling odds, accepting bets, receiving stakes and paying out on successful bets have been established. The particulars of the offence set out five things in numbered sub-paragraphs which the Applicants were alleged to have conspired to do. In my opinion, sub-paras. (1), (2), (3) and (5) all amounted to the soliciting, receiving, negotiating and settling of bets by way of trade or business because they each constituted separate steps in the establishment of business systems to enable bets to be solicited, received, negotiated and settled on a large scale in the course of a trade or business.

55. Secondly, it is undeniable that sub-para. (4) amounted to the receipt of bets. Although Mr Griffiths distinguished between the wording of the particulars ("accepting") and the language of section 2 ("receiving"), I have no doubt that that was a distinction without a difference. Even Mr Griffiths acknowledged that a view contrary to the distinction which he was drawing may well be appropriate.

56. Thirdly, when analysed in this way, there can be no question of the particulars amounting to an allegation that the Applicants had conspired merely to assist others to engage in bookmaking. I have not ignored the fact that the word "assist" appears in sub-paras. (1) and (5) of the particulars. But as Mr John Reading SC for the Respondent wrote in his skeleton argument, the word "assist" in the context referred to the function of the computer programme, not to the roles of the Applicants. In other words, the computer and its software assisted the Applicants in their bookmaking activities. In particular, sub-para. (5) stated that the computer and the programme were to "assist them [i.e. the Applicants] to receive, store, process and settle the said bets", which could only have been a reference to the bets on overseas football matches referred to in sub-para. (4).

The first charge: duplicity

57. This analysis serves to defeat the second argument deployed on behalf of the Applicants, namely that the first charge was duplicitous to the extent that the particulars amounted to an allegation that the Applicants had conspired to assist others to engage in bookmaking. If any of the particulars amounted to such an allegation, it was said that the Applicants were being accused in one charge of two different offences. This argument breaks down at first base, because for the reasons I have given I do not regard any of the particulars as amounting to an allegation that the Applicants had conspired to assist others to engage in bookmaking.

58. But even if one or more of them did, that would not render the first charge void for duplicity. That is because the charge alleged a single conspiracy, albeit a conspiracy to commit two closely related substantive offences. A charge of conspiracy is not void for duplicity merely because the conspiracy alleged is a conspiracy to commit more than one offence. That follows from section 159A(1)(a) of the Crimes Ordinance (Cap. 200), which refers to an agreement which, if carried out, will necessarily amount to or involve the commission of "any offence or offences". Similar language in section 1(1) of the English Criminal Law Act 1977 resulted in similar conclusions being reached in R. v. Siracusa (1990) 90 Cr. App. R. 340 at p.350 and R. v. Roberts [1998] 1 Cr. App. R. 441 at p.449B.

59. In the light of all that, Mr Griffiths was forced to refine his argument. He acknowledged that a charge of conspiracy may allege a conspiracy to commit more than one offence, but he argued that the offences had to be "kindred" offences, and that the charge had to spell them out. I am prepared to assume, but without deciding, that the rule that a charge of conspiracy may allege a conspiracy to commit more than one offence is subject to these refinements, but they do not assist the Applicants in the present case. Engaging in bookmaking contrary to section 7(1)(a) and assisting another to engage in bookmaking contrary to section 7(1)(c) are "kindred" offences m the context of the present case in that, although different offences, they were not dissimilar and were closely related in the sense that they represented different stages in the establishment of a single bookmaking operation. It is true that a contravention of section 7(1)(c) was not spelt out in them, but that would only have been necessary if any of the particulars amounted to an allegation that the Applicants had conspired to assist others in bookmaking. As I have said, none of them amounted to such an allegation.

"By way of trade or business"

60. Finally, the point was taken that there was no reference in the particulars of the offence to the fact that the bookmaking in which the Applicants were said to have conspired to engage had been "by way of trade or business". This was said to contravene rules 3(1) and 4(b) of the Indictment Rules. The former requires the particulars of the offence to give such reasonable information "as may be necessary" as to the nature of the charge. The latter requires the particulars to disclose "the essential elements of the offence", though an essential element need not be disclosed if the defendant is not prejudiced or embarrassed in his defence by the failure to disclose it. The contravention of these rules was said to render the charge of conspiracy null and void.

61. I cannot go along with this argument. It is important to remember that the sub-section which creates the offence which the Applicants were alleged to have conspired to commit merely made it an offence to "engage in bookmaking". The fact that "bookmaking" had been defined elsewhere in the Ordinance did not mean that any particular part of that definition had to be repeated in the particulars. The need to give such reasonable information "as may be necessary" as to the nature of the charge relates to the particulars as to what the defendant is alleged to have done, e.g. the matters set out in the five numbered sub-paragraphs in the particulars in the present case.

62. Nor do I think that the particulars failed to disclose the essential elements of the offence. The essential elements of the offence were that (i) the Applicants were parties to an agreement, and (ii) that agreement amounted to an agreement to engage in bookmaking. It may be that one of the ingredients in the offence of engaging in bookmaking is that the acts which constituted the bookmaking have to have been carried out "by way of trade or business", but that does not mean that that has to be spelt out in the particulars. To take a simple analogy, dishonesty and an intention to deprive permanently are ingredients of the offence of theft, but the particulars of a charge of theft are sufficient if they state:

63. "X on the - day of - stole a bag belonging to Y."

Hon Mayo VP:

64. The convictions on this charge were safe and satisfactory and these applications are dismissed.