ATTORNEY GENERAL v. WONG YIP AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO 694 OF 1985

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JUDGMENT

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1. This is an appeal by way of case stated brought by the Attorney General appealing against a decision by a learned Magistrate that there was no case to answer in respect of some six summonses which were before him charging six people with various offences against the Gambling Ordinance.

2. The 1st Respondent was charged with operating a gambling establishment contrary to section 5 of the Gambling Ordinance, the 2nd Respondent with managing a gambling establishment contrary to section 5 of the Ordinance, and the remaining four with gambling in a gambling establishment contrary to section 6 of the Ordinance.

3. At the conclusion of the prosecution case in the Magistrates' Court, the learned Magistrate found that there was no case to answer in respect of each of the respondents and dismissed the charges in respect of each.

4. Briefly the facts of the case were that on the 19th January, 1985, a party of four police officers posing as construction workers entered a wooden but in Stanley where they were met by the 2nd Respondent. In response to a question by the Inspector-in-charge of the group of police officers, the 2nd Respondent said that it would cost them $15 for every four rounds of game of mahjong play. The officers played mahjong and paid. The 3rd, 4th, 5th and 6th Respondents played mahjong in the same but in another room.

5. Under section 3 of the Gambling Ordinance, all gambling is unlawful except in certain circumstances. The circumstances under which gambling is lawful are set out extensively in the various subsections of section 3.

6. By section 18 of the Ordinance, it is provided that in any proceedings for an offence under section 5, the burden of proving that the gambling is lawful by virtue of section 3 is on the defendant. So, as regards the 1st Respondent and the 2nd Respondent, the position at the close of the prosecution case was that the Magistrate had to ask himself: "Was the gambling being conducted there proved to be lawful?"

7. Subsection 4 of section 3 provides the circumstances under which the playing of mahjong is lawful. It is common ground between the parties that the circumstances set out in paragraphs (a), (b) and (c) of that subsection were applicable here. If, therefore, paragraph (d) was also applicable, the gambling was proved to be lawful and there was no case to answer. If the circumstances set out in paragraph (d) were not proved there was a case to answer. So the Magistrate had to be satisfied, at the close of the prosecution case in order to find no case to answer that, if the game was conducted by way of business, the rent for the tiles did not exceed $20 per set per day.

8. The 2nd Respondent in her cautioned statement said that people came to play mahjong at the but "when they came across each other" and that she would collect mahjong rents from the players at the rate of $15 for each four rounds. On the face of it, therefore, the evidence was that the games of mahjong were being conducted by way of business on the premises. Was it shown that the hiring fee charged was $20 or less a day per set?

9. The evidence as to this is ambiguous. The 2nd Respondent said that the charge was $15 for four rounds. If she supplied a new set after every four rounds then it could be said that she had never charged more than $15 per set per day because it is the charge per set to which the regulation refers. In any event, the onus was on the 2nd Respondent to prove that the gambling was lawful and in order to do that she had to prove that the charge was $20 per set or less per day. On the evidence as it stood at the end of the prosecution case a tribunal of fact could have reasonably concluded that the 2nd Respondent would charge $30 for the hire of a set if the players played more than four rounds. The presumption not having been rebutted there must be a case to answer.

10. The 1st Respondent said to the police that he was the person in a position to give permission and that he did give the 2nd Respondent permission to use the premises. He said that he allowed the 2nd Respondent to let people play mahjong at the wooden but and collect commission to be used to pay her salary in connection with another duty which she performed. It was, therefore, an admission by him that he allowed the premises to be used for mahjong to be conducted on the premises by way of business. The onus was on him to rebut the presump-tion that mahjong playing was unlawful gambling. The presumption was not rebutted. So in his case, the learned Magistrate should have found that there was a case to answer.

11. As regards the 3rd to 6th Respondents, the same considera-tions do not apply. The prosecution seek to rely on the provision of section 19 of the Gambling Ordinance. Now that provision is as follows:

"Where in any proceedings under this Ordinance it is proved that gambling equipment was found in any premises or place entered under section 23(2)(a) it shall be presumed until the contrary is proved that the premises or place are or is a gambling establishment."

Section 23 refers to an entry by police into premises under the authority of an authorization issued under the Gambling Ordinance. In this case, it may be doubted whether the police did enter the premises under the authority of the Ordinance since their evidence was that they entered under the guise of being construction workers. If, therefore, the 3rd to the 6th Respondents had not made the admission which each did make about the reason for his presence in the hut, it may well be that the Magistrate would have been correct in ruling that they had no case to answer. But each of them did make admissions both as to their own gambling and as to the nature of the premises in which they were doing the gambling. On the basis of the admissions each made there was a prima facie case that each was gambling in a gambling establishment. So the learned Magistrate should have found there was a case to answer in respect of each of them.

12. In the case stated, the learned Magistrate posed the following questions:

Answer: Since $15 is less than $20, I must say yes that it does not exceed $20.

Answer: As the question does not arise, in view of the arguments advanced by both the appellant and the respondents, no "Yes" or "No" answer will be provided.

Answer: "No."

Answer: "No. Each had a case to answer."

13. In the result I allow the appeal. I order that the case be remitted to the Magistrate with my opinion and answers to the questions posed and with a direction that he continue with the case.