THE QUEEN v. TAM KWOK-KEUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 808/89

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BETWEEN

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J U D G M E N T

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Hon. Yang, C. J.:

1. This is the second accused, Tam Tung-keung's appeal against his conviction of engaging in bookmaking, brought under S. 7(1)(c) of the Gambling Ordinance.

2. The summary of facts as prepared by the prosecution was admitted for the court below.

3. In brief the facts are that a police party raided the premises in question. It took some five minutes for the occupants within the premises to open the door for the police. Upon entry, the police found the applicant together with his co-accused who was also his elder brother, and on two tables were spread paraphernalia for betting. A television was on showing the races. Whilst the police were on the premises a police officer received telephone calls from people placing bets.

4. After caution, the first accused readily admitted to operating a bookmaking business for the benefit of his friends and colleagues, whilst the appellant claimed that he was visiting his elder brother and did not know anything about the bookmaking. Upon being searched a number of betting slips were found on the appellant's person, and he said to the police that these had been given to him by his brother in order to collect the amounts of money shown on the betting slips as representing the bets placed by punters.

5. The learned magistrate in his Statement of Findings appeared to have considered the possibility that the appellant had been assisting his elder brother in bookmaking and therefore could have been found guilty under S. 7(1)(c) rather than S. 7(1)(a). In various parts of his statement he seemed to indicate that he had in mind the role of the appellant as being one of assisting. And upon finding the applicant guilty he referred to the applicant as being a runner for the first accused. However, at the end of his Statement, the magistrate was of the view that there was sufficiently strong circumstantial evidence for him to come to the conclusion that the two brothers were engaged in a joint enterprise and he could therefore properly find the applicant guilty of an offence under S. 7(1)(a). Unfortunately he does not say what the evidence was which led him to come to the conclusion as he did.

6. In my judgment the evidence as produced in the court below is not of a nature that would entitle the magistrate to come to that view that he did. It seems to me that the evidence was equally consistent with one of being engaged in bookmaking as well as assisting. It was of course not open, even if the magistrate had been so inclined, for him to find the applicant guilty of an alternative offence under S. 7(1)(c) because an offence under that section can only be brought with the consent of the Attorney General and here the consent of the Attorney General had not been obtained.

7. For these reasons I would allow the appeal and quash the conviction, the sentence is set aside.