THE QUEEN v. CHAN BUK-KUEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 810 OF 1988

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J U D G M E N T

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1. The Appellant was charged with the offence of engaging in book-making, contrary to Section 7-(1) (a) of the Gambling Ordinance. The particulars were that on the 6th March 1988 at Room 114, On Hok House, Tze On Estate, Tze Wan Shane, he did engage in book-making.

2. Briefly the evidence was that a party of police officers went to those premises arriving at about 4 20 p.m. on a day when horse races were being held. The police party entered the premises after revealing their identities to the Appellant and showing him a document and explaining its contents.

3. The premises consisted of one room about 300 sq. ft. in area. Inside the room, the police party found a telephone to which was connected a tape recorder. Whilst the officers were there, the telephone rang. It was answered by one of the police officers. The caller in each case purported to place bets on the horse races that day with the officer who answered the telephone. The police party found a number of documents in the premises, some of which undoubtedly were betting slips.

4. The Appellant did not give evidence nor did he call any witnesses to give evidence. I should have mentioned that in the prosecution case there was evidence that at the time of the police entry, there were only two persons present on the premises namely the appellant and a young boy aged about 6 or. 7.

5. The learned magistrate accepted the prosecution evidence and convicted the Appellant. The Appellant was represented by counsel at the trial but he is represented by Mr. Gunston on this appeal against conviction. Mr. Gunston has submitted 5 grounds of appeal but, as he says they can all be rolled in to one, the effect of which is that the premises were entered unlawfully by the police party, that the evidence obtained was therefore unlawfully obtained and should not have been admitted and without that evidence there was nothing to support a conviction. So the question is "Did the police lawfully enter the premises that afternoon?"

6. During the course of the evidence of the woman inspector who led the police party to the premises, she said that the document which she showed and the contents of which she explained, to the Appellant was a "Gambling Authorisation". She then sought to produce the document in evidence. Counsel, who then appeared for the Appellant, objected in the following form 'I object to the production of the "Gambling Authorisation" under Section 23 of Chapter 148. Only a Superintendent or above may issue a "Gambling Authorisation". In the alleged "Gambling Authorization" behind the name, no rank has been inserted. The Defendant would not know whether the "Gambling Authorization" was issued by a police officer of the rank of Superintendent or above.' After this submission, the prosecutor announced that he would not proceed with production of the document but asked that it be marked for identification purposes only.

7. The document was marked for identification purposes only and the woman inspector then continued with her evidence and said that the person who signed the document was a Superintendent of police No further reference was made to the document during the course of the evidence and it did not ever reach the status of an exhibit.

8. Mr. Gunston submits that the police party, having purported to enter under the authority of that document and it not having been proved that that document did validly authorize the entry, the entry was not proved to have been lawful with the consequences I earlier mentioned.

9. Mr. Kilgour in his reply has referred me to Section 101 of the Criminal Procedure Ordinance and Section 50 of the Police Force Ordinance. His submission is that it is apparent from those provisions that the police party had lawful authority, given the evidence in this case to enter the premises even without a document issued pursuant to Section 23 of the Gambling Ordinance and to take possession of exhibits suspected to have been used in connection with the commission of an offence

10. Mr. Gunston points to the rather startling conequences which can flow from such wide ranging powers given to the police, but it cannot be denied that those powers do exist and there can be no question but that the police party were lawfully authorized to enter the premises.

11. The learned magistrate in his Statement of Findings said that the PP.1 was "defective"-the quotation marks are the magistrate's-and went on to say "in the sense that the prosecution cannot rely on it to raise any statutory presumption". Mr. Gunston submits that since the magistrate found the purported authorisation to be defective for one purpose it followed that it was defective for all the purposes and since that was the only authority on which the police party purported to gain lawful entry, they misled the Appellant to gain entry and the magistrate should therefore have exercised his discretion and excluded the evidence.

12. I do not think that the document was defective. So far as the evidence went, it suggested that the only defect was that the person who signed it did not insert his rank. There was, however, evidence that he was of a rank authorised to issue such an authorisation.

13. The form of authorisation under Section 23 is as I mentioned in the case of The Queen v. Ng Chung-kuen (M.A. 563 of 88) a form drafted by the Royal Hong Kong Police Force for the convenience and guidance of those called upon to issue such authorisations. It is not a statutory form. The omission, as -I mentioned in the earlier case, of the rank of the officer who signs the document might be fatal where a point is taken as to whether or not the authorisation was properly issued.

14. Here, although the point was taken, the gap was filled by the evidence of the woman police inspector that the person who signed was a Superintendent. The evidence as far as it went, pointed to the document's authenticity - it was not defective at all. The decision not to proceed with the production of it as a fully fledged exhibit obviously stemmed from a realisation on the part of the prosecutor that he did not need the benefit of the presumptions which production of the authorisation would have supported since the state of the evidence was such as to cogently prove the commission of the offence without the help of the presumptions.

15. I think that the entry, so far as the evidence went, was lawfully authorised by Section 23 but if I am wrong in that I would hold that the entry was lawful in that it was authorised by Section 50 of the Police Force Ordinance. In the circumstances, there could not even be a suggestion, let alone evidence, that the entry in this case was unlawful. Mr. Gunston's argument is founded on the basis that the entry was unlawful. Since that foundation has no substance, the appeal must fail.