THE QUEEN v. HO KIN FAI

Magistracy Appeal No. 146 of 1990

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HEADNOTE

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GAMBLING ORDINANCE - SECTION 13 - IF EVIDENCE THAT PLACE IS GAMBLING ESTABLISHMENT MAGISTRATE MAY AMEND TO SECTION 5 OFFENCE - OR CONVICT UNDER SECTION 13 PROVIDED HE MAKES FINDING THAT IT IS NOT GAMBLING ESTABLISHMENT.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdicition)

MAGISTRACY APPEAL NO. 146 OF 1990

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JUDGMENT

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1. The appellant was convicted of operating unlawful gambling in a place not being a gambling establishment, contrary to section 13(1)(a) of the Gambling Ordinance, Cap. 148.

2. On the evening of 22nd September, 1989, a plain clothes police officer observed people gambling at a meatstall in Tai Po Temporary Market. Most of the stalls were closed, but about nine persons were gathered around stall No. 9. The appellant was acting as the banker in a game of Fan Tan. The officer watched three plays and then retreated in order to report by radio to his sergeant.

3. He then returned to the game, in which the appellant continued as the banker. A few minutes later a squad of police officers raided the scene and the appellant and six others were arrested.  $47,149 was seized from the arrested persons, including $23,643 from the appellant.

4. In the course of the trial seven police officers and the appellant gave evidence. The defence was that the bank was being shared and the appellant was therefore not proved to have been the operator. Further that, as the appellant had pleaded guilty to gambling contrary to section 13(2) of the ordinance, he could not also be convicted under section 13(l).

5. Mr Hampton, who represented the appellant on appeal but not at trial, does not rely on either of these matters.

6. The first ground of appeal is that the magistrate made no finding that the place in question was not a gambling establishment, which, it is submitted, is an essential ingredient of the offence.

                section 13 provides -

7. Counsel for the Crown concedes that, in this case, the prosecution was not in a position to prove that the meatstall was not a gambling establishment; indeed it seems likely that it was a gambling establishment, since the place was being used for the purposes of unlawful gambling.

The definition of gambling establishment in section 2 is very wide:

"Gambling establishment' includes any premises or place, whether or not the public or a section of the public is entitled or permitted to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purposes of or in connexion with unlawful gambling or an unlawful lottery;"

"Place" is defined inter alia as "any spot on land or water".

8. The situation might have been different if several persons had been gambling while meat was still being sold at the stall, for then the "place" would not have been "used" for the purposes of gambling, which would have been a subsidiary activity, not intended, in my judgment, to be caught by the definition.

9. Mr Hampton submits that the only way in which the prosecution could properly have succeeded would have been if the magistrate had amended the charge to operating a gambling establishment contrary to section 5. Most prosecutions under this section follow the entry of a police officer armed with a gambling authorisation issued under section 23(2)(c). In such cases, where gambling equipment is found, a presumption arises under section 19 that the premises or place are a gambling establishment. That, however, is not essential to proof of a charge under section 5.

10. The words in brackets have apparently been' inserted by the draftsman in order to distinguish section 13 from section 5, in which "gambling establishment" is an essential ingredient of the charge and must be proved.  Section 13 creates a less serious offence carrying lighter penalties. I agree with Mr Hampton that, if there is evidence that the place is a gambling establishment, the magistrate may amend the charge to one contrary to section 5. He may not convict under section 13, in the face of such evidence, unless he makes a finding that the place is not a gambling establishment. His failure to do so is fatal to this conviction. Counsel for the Crown has indicated that, in the event of the appeal succeeding, he does not seek a retrial.

11. The appeal is allowed, the conviction quashed and the fine, if paid, ordered to be returned to the appellant.