R. v. CHAN HANG WAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 423 OF 1996

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J U D G M E N T

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1. The appellant was convicted after trial of operating an unlawful gambling establishment. He now appeals against conviction.

2. There is no dispute on the facts in this appeal. The admitted facts were that the place where the officers attended was a place where illegal gambling was carrying on. There were about 10 persons gambling "fan tan" on a bench. Several other persons who assisted were present doing various things. One of the officers PW3, observed at the scene that the appellant did not gamble but was standing behind a person who was rolling the dice and collecting money. He also saw a number of persons collecting money from the gamblers and distributed the earnings. The appellant was seen going over to these people at least three times and was given money by a person who collected and distributed money from the gamblers. He was, I think at the time, searched and found to have in his possession $17,000.

3. The appellant did not give evidence. Having considered the evidence, the learned Magistrate convicted him of the charge.

4. The main grounds of appeal were that first, the learned Magistrate was wrong in his definition of operation, second, the evidence fell short of operation by the appellant and third, the learned Magistrate appeared to have cast a burden on the appellant to rebut the evidence of the prosecution.

5. With regard to the first ground, the passage of the learned Magistrate's Statement of Findings which is under attack appears on page 44. It reads :

"Operating does not mean the actual exercising of control, but encompasses a situation where a person brings influence to bear on the running of the gambling."

6. Counsel submitted that this definition was wrong in the light of various authorities. He relied on the case of Leung Hing [1993] 1 HKC 209 which referred to the earlier cases of Tang Hang Chung (Crim App 565/82, unreported) and Mak Tat Kue (MA 162/83, unreported).

7. In the case of Tang Hang Chung McMullin, V.-P. said at page 8 :

"We have considered the possibility that this evidence might be sufficient to establish the affairs of assisting in the operation as distinct from assisting in the management of the establishment. These are unquestionably distinct offences... In section 5 the 'operator' is put in a category by himself, distinct from the person who manages or otherwise has control. It seems reasonable to suppose that the legislature viewed the operator as the person in overall control, the person with the final say in how, where and when, and even whether the enterprise is to be carried on. He may be remote from the day to day running of the business which can be left in the hands of a manager or other lesser functionary below the manager. If that is the proper way to look at the section, it may be that a person who cannot be said to assist in the management of the business might nevertheless be said to assist in the operation thereof."

8. In the case of Mak Tat Kue, Barker, J.A. accepted that to be correct but added the qualification that there might be more than one operator.

9. In the case of Leung Hing, these two authorities were relied upon as laying down the correct test.

10. It is quite clear that there is no satisfactory definition of operation in the Ordinance and I accept that the authorities have laid down the correct test. The actual exercise of control alone may not be operation but may be an indication of operation, and sometimes an important piece of evidence for the court to draw the necessary inference that a person was in operation. The inference to be drawn by the court depends of course on the evidence of each case. It is not unusual in Hong Kong in a gambling establishment like this that there may be a person who is the real boss and the operator of the establishment. He has the final say in it but is not present at the place. He may or may not even be known to some of the persons who work there. It is also usual to have one or more persons who are physically present and actually exercising some control at the time. If there are more than one person, then each person may be playing a different role, some more important and some less important. Clearly, the intention of the legislation is to catch not only those operating the management, but also those managing or controlling the establishment and those assisting either directly or indirectly in the establishment. There are degrees of culpability due to their different degrees of involvement and participation.

11. In my view, the learned Magistrate had not applied the wrong test. The question is whether the learned Magistrate had drawn the wrong inference? Was the inference that the appellant was the operator an irresistible inference in the circumstances of this case?

12. In the present case, it is quite clear that there was someone who cast the dice, someone who collected the bettings, someone who distributed the winnings. It is not disputed that it was the appellant who collected the net proceeds. I bear in mind that this is not a big establishment and that about 10 odd persons were gambling.

13. The learned Magistrate in his Statement of Findings had this to say at page 44:

"I was aware that mere presence is not sufficient to prove the offence, but in this case I was satisfied that the irresistible inferences were such that they led me to no other conclusion, other than that this appellant and others operated the game."

14. I do not agree with Counsel for the appellant that since there was no control of the game by the appellant, he was not in operation of the establishment. We are not dealing with the operation or management of the actual game or betting itself. Here we are concerned with the operation or management of the establishment. It does appear to me that from the evidence before the learned Magistrate, it is an irresistible inference that the appellant was in operation of the establishment.

15. One final point argued by counsel was that the learned Magistrate had cast a burden on the appellant to disprove the case. With respect, I do not think the learned Magistrate has gone as far as that. All that he was saying was that because the primary facts had been proved and there was nothing to contradict these primary facts, therefore he was entitled to draw the inference as he did.

16. In the circumstance, I do not think any of the grounds of appeal can be sustained. The appeal is dismissed.