HKSAR v. OR SUEN HONG

CACC 270/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 270 OF 2000

(ON APPEAL FROM DCCC 140/2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Background

1. This is an application for leave to appeal against conviction. The applicant was charged in the District Court with bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance, Cap. 148. The particulars of the offence charged read as follows:

"OR Suen-hong, on the 15th day of September, 1999, at Flat B, 6th Floor, Regal Crest, Nos. 5-9, Robinson Road, Central, in Hong Kong, engaged in bookmaking."

2. The case concerned activities observed, and documents later found, in that 6th floor flat in Robinson Road on 15th September 1999. The flat was under observation with the aid of a telescope, from premises opposite the flat, from 7 pm to 10 pm. In that time the applicant was seen to make 59 telephone calls, and in the case of about half of them he was seen to make a note after the call.

3. The unchallenged evidence was that a police party went to the flat at about 10.05pm and shouted to be let in. The applicant's wife, Madam Ng, was seen by the observer to approach the front door and then turn to speak to the applicant who was seated on the sofa in the living room with a pile of papers in his hand. She was heard by those outside the door to ask: "Someone looking for you?" The police repeated their identity and threatened to break open the door. The applicant was seen to go quickly to the kitchen still holding the papers. His wife went to the sofa. The police broke in. The judge's Reasons for Verdict succinctly summarizes what they found:

"The search revealed a number of exhibits. Exhibits P5, 6 and 7 were found in the fridge. P5 and 6 appear on their face to be records of betting on soccer matches. P7 is a sheet of paper headed, 'Ladbroke (Gibraltar) Ltd., Elite International Betting Service.' It is in the name of Frank Or, is dated 15 September and appears to refer to bets placed on soccer teams. P7 was not relied on in court.

In a drawer in the kitchen were found Exhibits P10 and 11, which later evidence suggested, referred to betting on horse races.

On the coffee table was found a notebook, P15, two pages of which were later said to refer to bets on horse racing, two multi-coloured pens, a calculator and a racing newspaper, The Sing Tao, dated 15 September.

The defendant's fingerprints were found on Exhibits 5, 10 and 11 and other unidentifiable prints were found on Exhibits 5 and 10."

The documents

4. Much of the evidence concentrated upon the nature of these documents and their contents and this appeal in large parts turns on the question of the purpose of their production in the trial and the use to which the judge put them in coming to his conclusion.

5. The documents were each put to a witness called by the prosecution who was put forward as an expert in gambling, specifically bookmaking, and particularly in bookmaking for horse racing. The exhibits with which we are concerned relate to, or purport to relate to, horse racing in some cases, and to soccer matches in the case of others.

6. He examined exhibit P5 and said that it was a betting slip on soccer. It bore the date 15 September, and also numbers and letters and names. The nature of this document can best be seen from the judge's description of it, and that description includes the judge's conclusion about the document, and in particular shows the use to which he put it in coming to his verdict. Given the central place which this document and others of the same ilk, take in this appeal, and the testimonial effect which it is said to bear, it is necessary to recite the description, and the finding in some detail:

"Exhibit P5 is headed 'European Champions League', and I am satisfied that this is the sort of document which one would keep if one were taking bets on soccer matches in that competition, played on 15 September. The document by itself cannot tell me that such bets were in fact laid, that would be in the nature of hearsay evidence. I shall not go through each individual entry. The flavour of the document can be obtained from the first.

Here we see that Olympiakos were recorded as playing Real Madrid. The reference to 102.5% indicates that a winner backing Olympiakos would get $102.50 for every $100 bet. The handicap reveals that Real were the stronger team and the reference to 87.5% indicates that a bet of $100 on Real would return winnings of $87.50. The next line contains entries which would be made if one had taken bets from three customers where, 'Lan' is a name, 'A' is $10,000 and '80%' is the return a customer will get on 100 if he won.

PW1 told me that the use of the word 'Buy' might mean the bet was being laid off, but it was clear that this opinion came in part from other documents which had not been exhibited to me. This was clearly inadmissible. It would amount to substituting his opinion for mine, and the documents his evidence was based on, were not available for examination.

It was suggested that P5 could be a record kept by someone laying bets instead of receiving them, i.e. by a punter not by a bookmaker. He initially appeared to accept that P5 might be such a record. He agreed that odds and handicaps might change with the betting, and make different bets more or less attractive at different times, and might lead to bets being placed on opposing teams by the same gambler.

When re-examined, however, it was clear that P5 was not to be regarded in that light. The first match indicated different gamblers, not one man hedging his bet and later entries showed only one team being backed.

I was satisfied having heard all the evidence that this was the sort of record a man might keep if he were receiving bets from the individual gamblers named, in the sums and at the odds listed. It was not the record of a gambler laying bets with a variety of different bookmakers, all named, and sometimes backing both sides against each other.

I should repeat, for it was frequently mentioned during the trial, that I do not mean by this that P5 was in itself proof that these bets were actually laid."

7. P6 appeared to be another written record of bets on soccer; as the expert described it, it was "a betting slip on soccer". This was a slip produced by the Macau Lottery Authority. It included the name of a team or teams, the handicap allotted to the team thought to have the better chance of success, the odds, and some names. The judge said in relation to this document that his comments and conclusions were the same as those he had made in relation to P5.

8. The effect of the evidence in relation to P10 was summarized by the judge thus:

"P10 appears to be concerned with horse racing, not soccer. There are two names with columns of entries under each. Again, I will deal with the first entry.

The number 2, circled, indicates race No. 2. The number 5 next to it indicates horse No. 5 in that race. 'W' & 'P' indicate win and place, and the number 1 indicates a bet of $10,000. The triangle symbol in other entries indicates a quinella.

PW1 was able to demonstrate by linking the bet next to the circled 5 with the Hong Kong Jockey Club Race Results, that these entries related to races run on 15 September. PW1 acknowledged the possibility that this sheet could be the sort of record a gambler might keep if he laid bets with two bookmakers bearing the two listed names, as well as the sort of record a bookmaker might keep if he received bets from the two individuals named. However, this could be shown not to be the case because of the different coloured pens used to make the entries. Why would a gambler use different colours on the same entry? And because the dividend used to calculate winnings as entered by race 5, information which a gambler would not in his experience note."

9. As for P11, the witness testified that he believed that to be a record of receiving horse betting; and, for the proposition that it appeared to record receipts rather than placing of bets, he emphasized the fact that it carried the names of various persons on it, and that the records were made in different colours; the fact of writing in black, blue and red was, he said, a common practice of someone who received off-course bets.

10. P15 was a notebook, and the witness examined two pages in that notebook. Those two pages, he said, were horse betting records of someone who had received bets. Again there were race numbers, horse numbers, the names of various persons, the way of betting, as he put it, and whether it was a loss or gain.

11. The judge said that in relation to each of these documents, P6, P10 and P15, he was satisfied "that these three documents are the sort of documents a man taking bets on horse racing would keep. I am satisfied that they are not the sort of documents a man placing bets would use." He acknowledged that the documents did not show that the bets had in fact been laid or had been laid with the applicant. As is amply demonstrated by the Reasons for Verdict, and by the transcript of the evidence, the judge was very well alive to the hearsay issue as far as these documents are concerned; he drew a distinction between the documents as evidence that the bets they described were in fact laid, on the one hand, and, on the other, their use to the expert in describing whether they were the type of the records kept by someone taking bets on soccer matches and horse racing. He took the view that they were admissible for the latter purpose. That view is criticized in this appeal, and to that issue we shall shortly turn.

Other evidence

12. The judge then addressed the other evidence which he utilized in deciding whether this applicant was or was not guilty of the offence charged. He noted that there were found in the flat different coloured pens right by the telephone on which the applicant had been talking, and next to which he had been making notes. He pointed to the unchallenged evidence that when the police arrived, and when it was plain to the occupants that the police were wanting to gain entry, the applicant approached the front door with a sheaf of papers in hand, but then turned and hurried to the kitchen. He was satisfied that the occupants of the flat, namely, Madam Ng and her husband, the applicant, had deliberately delayed the entry of the police to the flat. He noted the fact that the applicant had been observed sitting for three hours making and receiving 59 telephone calls after some of which he had made notes; that there was discovered the notebook, on the telephone table, in which are found records that a bookmaker might keep; and that when the police entered the premises the television was on showing, live, horse racing. The applicant's fingerprints were found on some of the documents discovered in the fridge and the drawer. He found that the evidence as a whole pointed clearly to the applicant being in charge at the flat, rather than to him assisting someone else in whatever business was there being conducted. He recognized that there was absent some of the paraphernalia that might be found at bookmakers' premises, such as tape recorders for recording the text of phone calls but, "taking all the evidence together", he was satisfied that the only inference he could properly draw from the evidence as a whole was that the applicant was engaged in bookmaking at his flat on 15 September. So he convicted him and imposed a substantial fine as well as a two year sentence of imprisonment, which he suspended for three years.

The Ordinance

13. In order best to appreciate the grounds of this application, and the analysis of them which will follow, a reference is necessary to those sections of the Ordinance which are relevant to the application.

14. 'Bookmaking' is defined in the Ordinance (section 2) as "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."

15. 'Gambling', by the same section, is said to include "gaming, betting and bookmaking."

16. A 'gambling establishment' "includes any premises or place ... opened, kept or used ... for the purposes of or in connexion with unlawful gambling...."

17. Section 7(1) of the Ordinance is the offence creating section with which we are concerned. It reads as follows:

"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) ....

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

18. Section 19 of the Ordinance is entitled "Presumptions". There are two subsections which are relevant to this appeal:

"(1) Where in any proceedings under this Ordinance it is proved that -

(a) the entry of a police officer to any premises or place under section 23(2)(a) was prevented, obstructed or delayed;

(b) ....

(c) ....

It shall be presumed until the contrary is proved that the premises or place are or is a gambling establishment.

(2) ....

(3) For the purposes of any proceedings under section 7(1)(c) any person who is proved to have had in his possession one or more than one betting slip shall, until the contrary is proved, be presumed to have been assisting another person in bookmaking."

19. Section 23(2)(a), which is referred to in section 19(1)(a), relates to entry by a police officer to enter and search a place, where that entry has been authorized by a superintendent (or an officer of a rank higher than that) who suspects the premises to be a gambling establishment.

Ground 1: The hearsay point

20. The first ground of this application relates to the admissibility of the documentary exhibits P5, P6, P10 and P15. The ground, as framed in the perfected grounds of appeal, contends that the expert witness was wrongly permitted to rely upon the truthfulness of the contents of those documents: "The contents of a document being hearsay made it inadmissible for the purpose of proving the truth of its contents and that therefore [the expert] ought not to [have] been permitted to form his opinion of [them]." It is said that the documents were in any event inadmissible because the purpose of their production was to make an implied assertion that the person who made the document was engaged in bookmaking. In so far as the documents were mere betting slips, the making or possession of a betting slip was not, it is argued, evidence of the offence charged and was indeed not admissible to prove the commission of the offence charged since the contents of the documents constituted hearsay. The issue is more succinctly summarized in Mr Wong's skeleton argument, namely, whether these exhibits were admissible to prove that the applicant was engaged in bookmaking.

21. The success or failure of this attack depends upon a proper appreciation of the exclusionary rule and the principle behind it. Professor Cross' accepted formulation is that "a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated" (as repeated in Cross & Tapper on Evidence 9th edition p.530). It is excluded because it "is thought to be unreliable; hence its exclusion is felt to be necessary for maintaining higher standards of accuracy in findings of guilt.... Independent policy reasons have also been advanced for the exclusionary rule.... The principal independent justification is that the admission of hearsay statements would deny the accused on opportunity to participate effectively in the proceedings instituted against him by preventing him from cross-examining the maker of the statement" (see A.A.S. Zuckerman "The Principles of Criminal Evidence", pp. 179-180). Hearsay evidence may be oral or it may be documentary but it is essential to understand that:

"... the prohibition of the hearsay rule ... does not apply to all words and utterances as such. If this fundamental principle is clearly realized, its application is comparatively simple. The hearsay rule excludes extra judicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted." (see Wigmore on Evidence (3rd ed., vol. 6, p.178) referred to in Mawaz Khan v. R.[1967] AC 454, 459)

22. The question then is this: What was the purpose in this particular trial of the production of the exhibits analyzed by the expert? The issue in this case was whether it was proved, to the requisite standard, that the applicant was, on 15 September 1999, receiving bets "by way of business" (see section 2). Now the mere fact that the applicant had in his possession these betting slips could not in themselves in accordance with the rules of evidence have proved that the persons named in the various records had in fact placed the bets which those records purported to evidence. That is because the purpose of their production, if so limited, and if directed to that end, would have been to establish the facts stated in the records. So, for example, one notes that section 8 of the Ordinance stipulates that "any person who bets with a bookmaker commits an offence;" and it would not be permissible to produce a betting slip which stated on its face that A placed a bet with B as proof that A in fact placed that bet. But that was not the purpose for which the records in this case were produced. A key issue was whether the applicant was in business as a bookmaker. To show that someone is in business of a particular kind, whether it be as a bookmaker, a banker, a butcher, or a baker, it will always be probative of that fact to show that he kept records, and that they were the type of records kept by a businessman of that category. It matters not, therefore, to take one of those example categories, for the purpose of illustration, whether it is true, as records found might suggest, that 15 lbs of flank were in fact received from an abattoir and sold on to four named customers on a particular day, if the purpose in producing the records is to demonstrate that they are the type of records kept by persons in business as butchers, and are not the type of records one would expect a domestic consumer to maintain. If that is truly the purpose, then the fact that the records might also be read as suggesting that the specific deliveries were in fact made is not to the point, so long as the properly directed mind does not utilize them to that added or alternative end. The purpose in this case of the production of the documentary exhibits was to show that the applicant was in possession of the paraphernalia of betting, namely, betting slips. There was other such paraphernalia, namely, the telephones and the coloured pens next to the telephones. Those documentary exhibits contained the format and the jargon of the business, and the purpose of proving their possession, their nature, their format and their jargon, was to show, together with other evidence, that the flat was the venue for the conduct of a business of the kind run by bookmakers. To that end these documents were, in our judgment, admissible evidence and did not breach the prohibition against hearsay evidence. That the trial judge utilized this evidence for this limited purpose, excluding from his mind any temptation to use them as proof that the bets purportedly recorded were in fact placed and placed with the applicant could not be more clear from a reading of the transcript and from his Reasons for Verdict.

23. It is in the circumstances unnecessary to examine the contention that the judge erred in permitting the expert to render an opinion in respect of evidence that was inadmissible, for the premise does not exist. We would add only this - that Mr Wong asserts that the expert proceeded on the assumption that the contents of the documents were true, and he points to one particular passage in the transcript in support of the proposition. We have the transcript as a whole which shows the frequent occasions where the court clarified the purpose of the expert's evidence, which was not to assert the truth of the contents of the slips, but rather to describe the nature of the documents, and to interpret the jargon which they contained.

24. The applicant asserts that he is assisted by the House of Lords' decision in R v. Kearley [1992] 2 AC 228 and by the Hong Kong case which followed it, R v. NG Kin-yee [1993] 2 HKC 148. We do not think that these cases assist the applicant.

25. The basis upon which the telephone calls to the appellant in Kearley were held by the majority to be inadmissible, was that the state of mind of the callers was irrelevant, and in so far as the calls were said to carry an implied assertion that the appellant had in the past supplied drugs to them, the evidence of the calls and what was said in them was inadmissible as hearsay, for the object of adducing this evidence was to show the truth of the implied assertions. The decision of the House of Lords has, to use the words of Lord Hoffmann in Secretary of Justice v. Lui Kin Hong [2000] 1 HKLRD 92, 112, "been heavily criticized", and whether it is a decision which will in future be followed in Hong Kong is a matter with which we need not be concerned. However, for present purposes, it suffices to pose the test posed by the majority in the House of Lords. And if we ask the question whether the exhibits in the present case were adduced to establish the truth of the assertions said to be implicit in them, we must first ask what suggestions were implicit in them. Implicit in the exhibits might be said to be suggestions that such and such a bet was placed with a bookmaker on a certain date. Unlike the case of Kearley, and all the Commonwealth cases on bookmaking to which it referred, there was not in any of the documents in this case an implied assertion that anyone placed bets with this applicant. In a passage recently cited with approval by the Court of Final Appeal in Wong Wai Man & Others v. HKSAR [2000] 3 HKLRD 313 at 317-318, Mason CJ, in R v. Walton (1989) 166 CRL 283 said (at p.288) that:

"The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement."

26. The fact is that in the present case the exhibits were not tendered to prove directly the facts said to be implicit in them, namely, that those particular bets were placed with someone, but rather that, even though they may well have been placed with someone - one knows not whom, for the records do not say - this applicant was in possession of records of this type. In this way, the nature of the evidence and its contents and its implied assertion and its purpose can be distinguished from the evidence under discussion in the Kearley case and in the Hong Kong bookmaking case which has followed.

Betting slips, and section 7(1)(a)

27. It is then said that in any event the making of a betting slip was not evidence per se of an offence under section 7(1)(a) and, further than that, that the possession of a betting slip was not admissible for the purpose of proving a section 7(1)(a) offence.

28. The basis for this argument flows from the provision which is section 19(3) of the Ordinance, which provision is recited in the summary we have provided of relevant provisions. Mr Wong SC, on behalf of the applicant, says that since this subsection provides that possession of a betting slip gives rise to a presumption that the person in possession has been assisting another in bookmaking (the section 7(1)(c) offence), its probative use is excluded for the purpose of proving a section 7(1)(a) offence.

29. The point is, with respect, untenable. All that section 7(1)(c) does is to provide a statutory presumption which, assuming the evidence is sufficient to raise it, a defendant has then the burden of displacing. It hardly means that a court is to exclude evidence of the possession of betting slips in the case of other offences under the Ordinance no matter how relevant that evidence may be. If the evidence is relevant to any charge levelled under the Ordinance, then it is admissible unless there exists some rule which specifically excludes its admissibility. Section 7(1)(c) excludes nothing. No one suggests that in a section 7(1)(a) prosecution the mere possession of a betting slip suffices to establish a case of running a business of bookmaking. What, however, it might do, is to establish such proof in the light of all the circumstances in which it is found, those other circumstances to be shown by other admissible evidence.

30. It is worth noting that the case against this applicant was proved by much more than the evidence said to be inadmissible. The betting slips which were adduced show the keeping of records such as might be kept in a bookmaking business. The fact that the applicant was actually receiving bets on the day in question was proved by the uncontested evidence of calls coming in to his flat at an average frequency of about one every three minutes over a period of three hours on a racing night; by the fact that he was seen making notes frequently when receiving these calls; and by the fact that there were found different coloured pens by the telephone.

Ground 2: Treatment of the section 19 presumption

31. We have earlier set out the terms of section 19(1)(a) which provides that in any proceedings under the Ordinance where it is proved that the entry of a police officer to a place or to premises under section 23(2)(a) was prevented, obstructed or delayed there is then a presumption that those premises are, or that place is, a gambling establishment.

32. The evidence in this case was that the police entered under a warrant pursuant to section 23(2)(a).

33. Now the judge found that the entry of the police was deliberately delayed and he held, having recited the terms of section 19, that:

"In my view, the facts of this case do reveal a delay such as to cause a presumption to operate, that the flat was being used for bookmaking.

The defendant chose not to give evidence or to call any witnesses. That is his right. He does not have to call evidence or give evidence to rebut the presumption. It may be rebutted by other evidence before the court.

In this case, however, on the contrary, the other evidence supports the allegation that the defendant was bookmaking in his flat.

With the presumption the case is proved."

34. He then added this:

"Even without the presumption, however, it seems to me that the evidence against the defendant is overwhelming."

And he then explained why it was that he came to the conclusion that, even ignoring the presumption, the case was overwhelming.

35. Mr Wong does not, in this appeal, argue with the application of the presumption to find that this flat was being used for bookmaking. His complaint, however, is encapsulated as follows in his skeleton argument:

"It is clear from the above quoted passages that the learned Judge had found that the presumption under S.19(1)(a) was triggered. He then, by substituting parts of the definitions of 'gambling establishment' and 'gambling' into the wording of S.19(1)(a) created a further presumption against the Applicant; and upon that created presumption held that the case against the Applicant was proved."

36. The point is, with respect, bad, because the judge has not proceeded in that way. His finding that the applicant himself was bookmaking is not a result of any misreading of the presumption. The judge expressly recognised that the presumption only operated to show that the flat was being used for bookmaking. That the applicant was himself bookmaking was expressly said to arise "from other evidence that supports the allegation that the defendant was bookmaking in his flat". (Emphasis added).

37. The point could not in any event survive the judge's finding that, the presumption apart, the evidence against the applicant was overwhelming. By saying that, the judge was clearly saying that quite apart from the presumption, ignoring it, the prosecution had nonetheless proved the case beyond reasonable doubt.

Ground 3: The inference drawn

38. The third ground of appeal asserts that the judge could not properly find the applicant was engaged in bookmaking in the flat without considering a number of matters which it is said he did not consider, namely, the date and time the documents were made; where they were made; who made them; what the applicant was writing when he was seen making notes; whether the documents brought into the kitchen were the documents found by the police in the kitchen; and what relationship the applicant had to the documents thus found. The inference of guilt drawn, it is said, was not the only reasonable inference to draw; and the judge did not eliminate other reasonable inferences consistent with innocence of the offence charged. It is said in the skeleton argument that the judge inferred that the applicant was the maker of the documents found, that he had made them that day, and had made them inside the flat, and that he had placed them where they were found.

39. There is no warrant for the suggestion that the judge made the findings that the applicant was the maker of these very documents, and so on. Those findings do not appear in the Reasons for Verdict, nor, in our judgment, were findings to that effect necessary to sustain a finding of guilt. The judge has amply rehearsed why it was concluded that the applicant was engaged in bookmaking - the making of numerous calls during racing hours; the fact of two telephones in the flat both in use on the night in question; the presence of records of the kind kept by bookmakers; the applicant's fingerprints on some of the records; the making of notes when calls were received whilst racing was going on; the presence of piles of paper in the applicant's hand; the obvious fact that the flat was in the applicant's control and not that of any other; the obstruction of police entry when they announced themselves; the presence of multi-coloured pens; a notebook next to the telephone containing information a bookmaker might keep; the fact that the television was on showing horse racing when the police entered; and the applicant's conduct in running to the kitchen upon their arrival with documents in hand. The conclusion to which the court came in the absence of any contrary explanation from the applicant was a conclusion to which the court was fully entitled to come. There is nothing in this ground.

Ground 4: The expert's evidence

40. Finally, it is argued that the judge wrongly rejected the evidence of the expert in so far as he gave evidence that the documents were possibly records of a punter.

41. The point arises in this way. In the course of cross-examination, that witness was asked questions the design of which was to suggest that the records which the witness described could well be records kept by a person placing bets as well as by a person receiving bets.

42. The judge acknowledged in his Reasons for Verdict that in the cross-examination the witness appeared to accept that some of the exhibits might be records of someone placing bets, but he was in the end satisfied that in the course of the re-examination those possibilities were laid to rest. A close examination of the transcript shows the judge to have been correct. Time and again in examination in chief the witness stated why it was, in the case of each exhibit, that the document appeared to be of the kind made by one who was receiving bets; for example, the presence of a number of different names in relation to a race or a soccer match; the statement of dividends; the use of different coloured pencils; the unlikelihood that someone would bet on both teams in a soccer match. It is true that in cross-examination he said, in relation to betting records as a whole, that the mere mention of several names might allow the possibility that the record was kept by a person placing bets with these persons; that it was possible to bet on both sides of a soccer match in order to hedge against loss; and so on. But in re-examination, he was taken back to the purported records of the bets themselves, and it is evident from his reaction, that the judge was entitled to conclude that the overall effect of the witness' evidence was that these documents, all of them, were suggestive of records kept by a recipient of bets rather than by a punter. For example, in relation to P10, the witness said in re-examination that someone had written down the dividend and that was not consistent with the placing of bets with different bookmakers for it was the bookmaker who would do that for a punter. In re-examination he was taken to P5, and he explained why it was that, despite what he had said about persons hedging their bets by betting on two teams in a match, P5 did not appear to him to evidence such a balancing exercise, for it showed, for example, that the person betting on the home team was different from the person betting on the away team.

43. The judge's approach to this question of possibilities raised in cross-examination cannot, in our judgment, be faulted.

Conclusion

44. We are satisfied that none of the grounds of this application has merit and, accordingly, the application for leave to appeal against conviction is dismissed.