THE QUEEN v. MAN KIT MAN

HCMA 991/1991

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JUDGMENT

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Sir Derek Cons, V.P.:

1. Man Kit Man (”the defendant”) was convicted by Mr. D.I.  Thomas, sitting in the Fanling Magistracy, of operating a gambling establishment contrary to s. 5(a) of the Gambling Ordinance, Cap. 148.  He now appeals against that conviction.

2. In the evening of the 12th of June the police raided a wooden hut on the hillside in Sheung Shui.  They found a group of men playing Pai Kau.  It is accepted that the men were gambling; it therefore follows from the provisions of the Gambling Ordinance that the hut was deemed to be a gambling establishment.  It is accepted that the defendant was one of, I thins, 12 men resent.  His evidence and the evidence of one of the others that he himself was not gambling or taking part in the gambling was rejected by the magistrate.  He found instead that the defendant was the banker and that the defendant dealt the tiles and threw the dice for three rounds.  Finally it is accepted that some $5,000 or a little more, was found upon his person, although the money on the table was only $220.

3. In my view, as Mr. Bailey who appears today for the Crown has very fairly conceded, that is not sufficient evidence to found a conviction for operating a gambling establishment.  The magistrate’s reliance upon a reference by Silke, V.P., in R. v. Kwong Yiu Hung and Others [1988] 2 HKLR 304 to a “banker’s bias” being “a factor which demonstrates that a person was an operator” is misplaced.  With respect the magistrate reads more into the report than is actually there, and in any event the judge as dealing with what was or was not a social occasion rather than with the question of operating.

4. That is sufficient to dispose on the appeal am I need not deal with the interesting questions which have been raised by the perfected grounds of appeal and which turn on the provisions of the Bill of Rignts.  I am glad to think that the industry which Mr. Bailey has obviously expended or preparing to answer those questions, which I would in any event have reserved for the opinion of the Court of Appeal, will doubtless come in useful on some later occasion.

5. The appeal is allowed and the conviction and fine imposed below are set aside.