THE QUEEN v. WONG YU FUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 662 OF 1989

___________

BETWEEN

____________

_________________________

REASONS FOR JUDGMENT

_________________________

1. The appellant was charged, together with a number of other, of gambling in a gambling establishment, contrary to section 6 of the Gambling Ordinance (Charge A) and he was further charged with being a person in charge of premises knowingly permitting the same to be used as a gambling establishment, contrary to section 15(1)(a) of the Ordinance (Charge C).

2. It was essential for the Crown to prove on both charges that the premises in question were a gambling establishment.

3. The charge particularised the premises in question as "a hut opposite to the public toilet (No. 10) section 2, Ching Man Village, Sokonpo, Wanchai, in Hong Kong".

4. In order to prove that these premises were a gambling establishment, the Crown relied upon the evidence of police officers and in particular Senior Inspector Howard Chan (P.W.1) who testified that he executed a gambling authorization under section 23 of the Gambling Ordinance.

5. The gambling authorization which was produced in Court as Exh. P1 described the premises to which it referred as "unnumbered wooden but opposite No. 10 toilet Section 2".

6. It became clear that the hut which was raided by the police in purported execution of that authorization was not a wooden hut at all, but was made of bricks and cement and also that there were other huts in the vicinity of the lavatory, but no evidence as to the materials out of which they had been constructed.

7. The hut raided by the police officers was described by them in a number of different ways. P.W.1, Senior Inspector Howard Chan, described the hut as "an unnumbered hut opposite public toilet Section 2 Ching Man village, Sokonpo, Wanchai" He made no mention of No. 10 toilet. P.W.2 described it as a wooden hut at Ching Man Village, Sokonpo, Wanchai P.W.3 described it as a wooden hut at Sokonpo, Wanchai. P.W.4 described it as premises at Ching Man Village, Sokonpo, Wanchai. P.W.5 (or P.W.6 as he appears to have been called as well) testified that he lived at the hut in question and that it was numbered 204, Section 2 Ching Man Village, Wanchai and that he was the owner of it. He testified that it was made of bricks and cement and was a permanent structure. He also testified that it was near a public toilet No. 10, Section 2, but that there was more than one hut near the public toilet. P.w.7 said the raid was carried out at a hut in Ching Man Village, Sokonpo, Wanchai.

8. Mr Pickavant made a submission of no case to answer at the conclusion of the Crown case. The magistrate dealt with this matter in his Statement of Findings at paragraph 11 as follows:-

    "Submission at conclusion of Crown Case and ruling

11. At the conclusion of the Crown case Mr Pickavant submitted that the gambling authorization (P1) was inaccurate in definition and an invalid document. He pointed out the premises in question were described as an unnumbered wooden hut opposite No. 10 toilet section 2.

He said the evidence of the Crown at its highest was that the hut was numbered, namely 204, was constructed of bricks and cement and was one of several in the vicinity of the lavatory referred to. He said the provisions of the Gambling Ordinance concerning gambling authorizations were draconian and required strict adherence to be valid, and that any doubt ambiguity or error in the authorization should render it void.

12. I considered these arguments but ruled that the gambling authorization was a valid document properly executed under the enabling provisions of the Ordinance.

My reasons were as follows:-

a. The owner of the hut the subject of the raid gave evidence that the hut was registered 204. He said however there was no formal or other indication of this on the hut itself or on any sign pointing to it. From the point of view of a visitor to the village or someone searching for the hut it was thus unnumbered.

b. That it was of bricks and cement and not of wood I did not regard as fatal to the Crown's position. The manner of construction of the premises unless visually and obviously different from the description in the authorization (for example a two-storied instead of one-storied building or a yellow house instead of a red one) which would likely confuse a person attending at such premises I considered not germaine.

c. Evidence in the Crown case was the premises in question were opposite the lavatory named in the authorization. That there were other premises in the vicinity of the lavatory was likely but irrelevant.

d. I decided I could and did take judicial notice of the less structured mode of layout and description of buildings in a village in Hong Kong compared with that in an urban or suburban area where every building apartment subtenancy cubicle and other individual house or premises is likely to be individually numbered or otherwise defined. I recognized a material difference between the situation I was asked to rule on and for instance where an authorization might define the premises to be raided as room B, flat 402, 4th floor 64 Johnson Road, Wanchai where the raid was intended for and took place at room A at the otherwise same address. In that hypothetical example the address would be clearly incorrect and the authorization not properly executed.

e. I asked myself two questions -Was the address recorded in the gambling authorization sufficient and adequate to define the premises intended to be the subject of the gambling raid? Were the premises raided the premises the subject of the gambling authorization?

13. Answering both yes I ruled accordingly."

9. Mr Necholas, who appears for the appellant on this appeal, argues that a general description in a gambling authorization which could cover one of a number of huts was just not good enough. In view of the fact that there were other huts in the vicinity of the toilet, and there was no evidence as to whether they were wooden or otherwise. The gambling authorization was, therefore, not sufficiently clear to identify the particular premises which it was intended should be raided. He submits that it is not a case of a misdescription of premises, but a description of perhaps other premises. In this respect, he refers to the case of R. v. Atkinson (1976) Crim. L.R. 307 where the headnote descripts the factual situation as follows:-

"A man was convicted of obstructing a police officer in the execution of his powers under section 23(4) of the Misuse of Drugs Act 1971. He resided at Flat 30 in certain premises and the police had reason to believe there were drugs in the flat. There was no number on the door of A's flat and police assumed it was Flat 45 because it was next to a flat numbered 46. They obtained a search warrant for Flat 45. When they told A they had a warrant he bolted the door against them and, whilst they were breaking in, flushed some tablets down the w.c. A appealed on the ground that the judge wrongly directed that a mistaken address did not vitiate a search warrant.

    Held, allowing the appeal, it was necessary to have regard to the wording of section 23(3) of the Act. It seemed to the court that the police did not act in the exercise of their powers under the section. The warrant authorised them to enter Flat 45, which was named in the warrant, but not Flat 30. The Crown submitted that if the police acted bona fide that would validate the search despite the misdescription However, it was not so much a misdescription of premises as description of other premises. Bearing in mind the wide powers given by the section the court could not accept the Crown submissions. .............

    The present decision did not apply to misspellings, or trivial errors in the description of premises. Errors of that type would not necessarily invalidate a warrant."

10. Mr Nicholas submits that it cannot be right that an authorization authorising the police to break and enter a wooden hut would not be fatal to a prosecution case where they entered a hut built of bricks and mortar.

11. Mr Arthur, appearing for the Crown, somewhat half-heartedly supports the magistrate.

12. In my judgment, the gambling authorization was not sufficiently clear to justify the police entering the hut described by them in pursuance of that authorization.  It should be clear to anybody shown the gambling authorization that it does refer to the premises in question.  It should be clear to anybody shown the gambling authorization that it does refer to the premises in question. It must be quite clear because a police officer to whom an authorization is issued under sub-section 1 of section 23 and any other police officer acting under his direction may enter, by force if necessary, the premises or place specified in the authorization and search the same.  Section 23 also provides for the arrest of any person found in the premises or who escapes from the premises and for the seizing of gambling equipment found in the premises etc.  Furthermore, section 27 provides that any person who obstructs a police officer in the exercise of the powers conferred upon him by the Gambling Ordinace commits an offenec.  It is clear that a person who obstructs a police officer who purports to exercise a gambling authorization which does not properly describe the premises in question is not guilty of obstructing a police officer in the exercise of the powers conferred upon him bu this Ordinance.  It is essential that the gambling authorization should be framed in sufficiently clear terms to enable persons in premises who are shown that authorization by visiting police officers, to decide whether it refers to the premises or not.

13. In my judgment, it cannot be said that the premises raided by the police were entered under section 23 (2) (a) in pursuance of a gambling authorization. It cannot, therefore, be said that the presumption arose to establish that the premises were a gambling establishment.

14. For these reasons, I allow the appeal and set aside the conviction and sentence imposed upon the appellant.