HKSAR v. LAM WAI MING AND OTHERS

[English Translation – 英譯本]

HCMA 1059/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1059 OF 1997

(ON APPEAL FROM NKCC NO. 4712 OF 1997)

-------------------------------------

-------------------------------------

------------------------

JUDGMENT

------------------------

1. The 19 Appellants herein were D2 to D20 at trial before the magistrate.  They were all charged with gambling in a gambling establishment on Mezzanine Floor, 95 Tai Po Road, Shamshuipo, Kolwoon on 31 July 1997,contrary to Section 6 of the Gambling Ordinance, Cap. 144, Laws of Hong Kong.  They were convicted after trial and were each sentenced to a fine of $250.  They now appeal against conviction.

2. D1 was initially charged with operating a gambling establishment, contrary to Section 5(a) of the Gambling Ordinance.  At trial, the charge was amended to one of assisting in operating a gambling establishment.  D1 was acquitted after trial.

3. At 3.10 a.m. on the day of the offence, a team of police officers arrived at the relevant address.  They heard human voices and sounds created by dominoes from the unit.  The officers purported to enter the unit, but this was obstructed and delayed by D1.  The officers knocked on the roll-up metal gate at the entrance, which was locked, and did so for about 5 minutes before D1 pulled up the gate to let the officers in.  The unit was laid out as an office and workshop.  The officers saw D10 to D13 sitting around a table on which there were mahjong tiles.  A wooden board was found in the unit, and when it was turned upside down, a piece of white cardpaper was seen attached to the board that could be used for gambling purposes.  Cash to the value of approximately $700 was seized from the floor of the office.  The officers searched the unit and found one set of mahjong “pai gow” tiles, a banker’s plate, two dice, 15 chips each with a face value of $5,000, 5 chips each with a face value of $500, and 11 chips each with a face value of $100.  D2 claimed to be a tenant of that place.  Apart from D10 to D13, all the other persons were sitting at that place.  The officers asked them what they were doing at that place, but no one answered.  Except six of them, D2 to D20 were having on their person cash the values of which ranged from a few thousand dollars to ten or twenty thousand dollars.  They were all arrested and brought to the police station.

4. All the defendants were interviewed at the police station, and they signed on their respective records of interview.  At trial, nine of the defendants elected to give evidence and they all testified that D10 to D13 were playing mahjong at the material time and no one else was gambling in any way.  The testimony and cautioned statements of the various defendants are set out below.

5. D3 testified that he was D13’s friend.  He intended to invite D13 to have a drink with him, but D13 had already invited his two former classmates (i.e. D10 and D11) and D13’s mother (i.e. D12) to play mahjong at the said premises.  D3 therefore went with D13 to the premises to watch the mahjong game in order to learn the game, with the intent of going out for a drink after the mahjong game.  D11 and D13 were technicians and repairers of amusement game machines.  They went to the said premises for the purpose of playing mahjong, and the rule was that cash would be used and there would be no pooling of money or tile rental.  D5 was the proprietor of several amusement game centres.  He said he frequently went to the said premises with workers of other game centres for the purpose of gathering or chatting, or taking components there for repair, or exchanging coins.  On the night in question, after the game centre closed shortly after midnight, he took circuit boards to the said premises for repair and he also played darts there.  When the police arrived, he was walking around the premises without doing anything in particular.  At first he said that he did not notice whether anyone was playing mahjong “pai gow” there, but under cross-examination he said he did not see anyone playing that game.  D7 was a renovation worker, and at the material time he was discussing with D10 about renovating the said premises.  D9 was also a repairer of amusement game machines.  He frequently went there to share work experience with other workers in the same field and did not leave until 4 or 5 a.m.  D15 worked at a construction site during daytime and worked at night in an amusement game centre in Sai Kung on a part-time basis.  At the material time he went to the said premises for the purpose of exchanging coins with another worker in the same field, but that worker had not yet turn up, and so he had not left the premises.  D17 was also a game centre proprietor.  At the material time he was there to look for a friend with a view to buying new models of circuit boards.  D19 was another game centre proprietor.  He had dinner with D4 and then went to the said premises to chat with workers in the same field.  The other defendants stated in their cautioned statements that they did work relating to amusement games and that at the material time they were talking about business, chatting or sleeping at the said premises.

6. Mr Yim for the defendants raises several grounds of appeal.  The first ground is that any reasonable jury who had properly applied their minds to the facts of the case would not have acquitted D1 and convicted the other defendants.  Mr Yim points out that this ground of appeal has been stated in the notice of appeal, but the magistrate failed to address this point in his Statement of Findings.

7. In his submissions, Mr Yim pointed out that D1 was facing a charge under Section 5(c) of the Gambling Ordinance and the prosecution had to prove that the place in question was a gambling establishment and that D1 was assisting in operating that establishment.  The other defendants were charged under Section 6 of the Gambling Ordinance, and the prosecution had to prove that the place in question was a gambling establishment and that the defendants were gambling there.  The two charges, therefore, had one thing in common, which was that the prosecution had to prove that the place in question was a gambling establishment.  Mr Yim referred to the evidence in the case which went to prove that D1 was at the material time indeed assisting in operating the gambling establishment, including evidence that D1 answered the door and knew that police officer were arriving, he saw the officers revealing their identity, he refused to pull up the gate and delayed the entry of the officers into the premises, and he had on his person the keys of the gate, gambling tools and some cash.  Mr Yim contended that the only conclusion that could be drawn from D1’s acquittal was that the magistrate did not accept that the place in question was a gambling establishment.

8. First, the purpose of the Statement of Findings is to set out findings of fact as well as the legal basis and reasons for the verdict.  It is not meant to address the grounds listed in the notice of appeal.  Second, D1 had been acquitted, and it was unnecessary for the magistrate to explain to the other defendants or the appellate court the reasons for the verdict of acquittal.   Given the difference between the charge against the defendants and the charge against D1, it would have been meaningless ― and indeed a waste of time ― to explain D1’s acquittal unless this was relevant to the other defendants’ case.  On the facts, the magistrate acquitted D1 because there was insufficient evidence to prove that D1 had assisted in operating the gambling establishment, not because the magistrate did not consider the premises in question to be a gambling establishment.  The magistrate made a ruling on this point in the latter part of the Statement of Findings.  This is readily apparent from pages 61 and 62 of the transcript.  Furthermore, in giving judgment in court, the magistrate referred to D1 and said:

“D1 is charged with assisting in operating a gambling establishment.  The evidence shows that his service was in the nature of miscellaneous work.  According to the case of R v. TAM Wing-kwong [1988] HKLR 313, miscellaneous work is not sufficient to constitute assistance in operating a vice establishment.  I rule that the principle laid down in that case is applicable to the present offence.”  (Transcript page 242)

9. It is therefore obvious that the magistrate acquitted D1 on the basis that there was insufficient evidence to show that D1 had assisted in operating the gambling establishment.

10. As to whether the magistrate should have amended the charge against D1 from assisting in operating a gambling establishment to gambling in a gambling establishment, the prosecution had not made any application in this regard, and whether the magistrate had been overly lenient with D1 was irrelevant to whether the other defendants could properly be convicted on the gambling charge.  Nor did the correctness or otherwise of D1’s said acquittal or the non-amendment of the charge against him have any effect on the other defendants’ case.  The most important point is that the magistrate did rule that the place in question was a gambling establishment.  The first ground of appeal must therefore fail.

11. In respect of the second ground of appeal, which concerns D10 to D13, the essence of Mr Yim’s submission is this: at the material time, D10 to D13 were engaged in social activities rather than gambling.  Mr Yim said there was evidence showing that D10 to D13 were playing mahjong at the said premises; that D10, D11 and D13 used to be classmates for many years; and that D12 was D13’s mother.  Of these four defendants, three worked in the same field.  Furthermore, there was no prosecution evidence to rebut the defence that the defendants would go out to have a drink after they finished playing mahjong.  Nor was there evidence showing that the objective of the defendants in playing mahjong was to win cash or showing that any banker or pooling of money was involved.  Therefore, the magistrate wrongly held that the defendants were not playing on a social occasion.  Mr Yim contended that the magistrate had not duly considered the facts of the present case and had relied on indecisive facts to support his verdict.

12. The magistrate relied on the facts of the case and, applying the rebuttable presumptions under the relevant Ordinance, held that the place in question was a gambling establishment and that the defendants were gambling at that place at the material time.  The magistrate said:

I am satisfied beyond reasonable doubt that the presumption under Section 19(1) is engaged, which means that the said place was a gambling establishment.  Furthermore, it is not in dispute that D2 to D20 were arrested at the said place.  Therefore, the presumption under Section 19(2) is also triggered and the defendants were gambling in the gambling establishment at the said address.

According to the guideline set out in the case of R v. Kwong Yiu-hing [1998] 2 HKLR 304, where the presumptions under Section 19(1) and (2) are called into play, the defendants may rebut the presumptions on a balance of probabilities.

The key issues here are whether the magistrate correctly applied the presumptions, whether the presumptions were supported by sufficient evidence, and whether the defendants were able to rebut the presumptions.

13. In my judgment, the magistrate was correct in holding that the facts of the case were sufficient to give rise to the presumptions under the Ordinance.  It was beyond doubt that entry by the police officers into the premises had been obstructed and delayed, and that gambling tools had been found at the premises.  It was therefore correct to rule that the presumptions were engaged, and indeed there was evidence in support of the presumptions.  As for the rebuttal of the presumptions, the burden of proof rested on the defendants.

14. In his Statement of Findings, the magistrate made mention of Section 3(2) of the Gambling Ordinance, which provides that gaming is lawful if the game is played on a social occasion.  The magistrate also considered the decided cases (R v. Leung Hing [1993] 1 HKC 479), which stated that the court must take an objective approach and consider all relevant circumstances in determining whether the game was played on a social occasion, and that the court must also determine which of the two objectives of winning cash and entertainment was the dominant objective (R v. Kwong Yiu-hung).  Furthermore, the magistrate referred to the facts in R v. Leung Hing in considering whether the occasion involved in the present case was a social occasion.  Therefore, in respect of the main points raised by Mr Yim, the magistrate had concluded that, in light of all the circumstances at the material time, the defendants had failed to show that the four defendants were playing mahjong on a social occasion.  The magistrate had this to say in the Statement of Findings:

This notwithstanding, viewing the matter as a whole, the other evidence points to the opposite conclusion:

(1)     The said place was not a general social venue such as a restaurant or a club;

(2)     No food or beverage was served at the said place;

(3)     The roll-up gate of the said place was locked;

(4)     D11 to D13 went to the said place for the purpose of playing mahjong;

(5)     Police entry to the said place was obstructed and delayed, and someone suggested storing away the cash and tiles.

Having considered all the circumstances of the gathering, I am not satisfied that D10 to D13 have proved on a balance of probabilities that the mahjong game was played on a social occasion. (Page 64)

15. Mr Yim contended that the points raised by the magistrate did not support his conclusion.  For example, social activities were not necessarily carried out at a restaurant or a club and did not necessarily relate to the provision of food and beverages.  Furthermore, the four defendants delayed police entry into the premises and stored away the mahjong tiles and cash because they might have mistakenly thought that it was unlawful to play mahjong at the premises, and the prosecution had not adduced evidence to show that the dominant purpose of the defendants was to gamble.

16. In my view, under the Ordinance, the four defendants bore the burden of proving that their mahjong game was played on a social occasion, and the standard of proof was on a balance of probabilities.  The magistrate was entitled to take into account all the material evidence.  A single item of evidence might not by itself support the magistrate’s conclusion, but, having considered all the evidence, the magistrate was entitled to reject the defendants’ defence that the mahjong game was played on a social occasion.  There is insufficient evidence to show that the magistrate’s finding was improper.  Although he only set out four to five reasons in support of his opposite conclusion, there was other evidence to be considered in the circumstances of the case, including: why did D10 to D13 play the mahjong game at that particular place and particular time?  Was there a reasonable explanation for the presence of the other defendants at that place?  These were also factors that the magistrate could take into consideration.

17. Having carefully considered the circumstances of the case and the testimony and cautioned statements of the various defendants, the magistrate was justified in concluding that the defendants failed to prove on a balance of probabilities that the mahjong game in which D10 to D13 participated at the premises was played on a social occasion.  For this reason, the appellants’ second ground of appeal must fail.

18. The third ground of appeal is that the magistrate failed to have sufficient regard to the evidence of the case and wrongly rejected the evidence adduced by the defendants in rebutting the two presumptions under the Ordinance.  Mr Yim argued that there was no evidence to show that mahjong “pai gow” was being played at the material time; rather, there was evidence that the wooden board found at the premises was not used for playing mahjong “pai gow”.  Furthermore, only two dice were found at the premises, which were not enough for the purpose of playing mahjong “pai gow”, and the face values of the chips found were also not enough for gambling purposes.  Mr Yim further said that the cautioned statements given by the defendants recorded their immediate responses to police investigations, and the defendants had provided explanations consistent with one another and had not been cross-examined in that respect.  Mr Yim contended that the convictions rested upon a few facts of the case which, Mr Yim submitted, did not in fact necessarily support the convictions.  Mr Yim made three points: first, the magistrate said that mahjong “pai gow” could be played on any flat surface and did not require a table, but this, Mr Yim said, was at variance with the evidence of the gambling expert.  Second, the magistrate said that, in view of the large amount of cash found, no chips would have been necessary for gambling.  In response, Mr Yim submitted that the large amount of cash found on the defendants could not constitute evidence against them.  Third, the magistrate said that although two dice were not enough for playing mahjong “pai gow”, he suspected there were other dice which had been hidden away or which the police had not been able to seize in the chaotic circumstances at the material time.  This, Mr Yim contended, was inconsistent with the evidence that no other gambling tools were found at the premises at the material time.

19. The evidence seized by the prosecution that had been considered by the magistrate included gambling tools and a large table which, unremarkable as it was, could still be used for gambling in mahjong “pai gow”.  The magistrate’s discussion on the table surface, chips and dice used for gambling merely showed that he was considering whether he was satisfied on the relevant evidence that the place in question was not a gambling establishment and that the defendants were not gambling there at the material time.  Apart from those gambling tools, the magistrate also had to take into account all the relevant evidence including the testimony and cautioned statements of the defendants and consider whether he was satisfied on such evidence that the defendants were not gambling at the place in question or that the place was not a gambling establishment.  In his Statement of Findings, the magistrate set out his reasoning as follows (Transcript page 65):

As for the testimony of the defendants, most of them worked in amusement game centres and alleged that they went to the said place to buy or sell or repair components, or to exchange coins, or to rest and chat and share experience.  And D7 said he went there to discuss renovation matters.  Although workers at amusement game centres rest after midnight, it is very difficult to believe that these business-related activities continued until after 3 a.m.  Furthermore, if the said place was a gathering place to which workers in that particular field habitually went, there would be no need to lock the roll-up gate, in other words, the door would be wide open and no visitor would be rejected.  Having considered the evidence of the defendants individually and as a whole, I reject on a balance of probabilities their denial of gambling and hold that they did participate in mahjong ‘pai gow’ gambling.

20. In my judgment, the magistrate’s holding was amply justified.  The activities in question took place at 3 a.m. at an office and workshop on the Mezzanine Floor.  It was not a place which other people could freely enter and leave.  It is very difficult to understand why there were so many people chatting and exchanging business experience at that place at that time of the day.  There is no need to comment upon the other gambling tools.  However, except for several of the defendants, most of them were carrying a large amount of cash ranging from several thousand dollars to ten or twenty thousand dollars.  Cash to a total value of $700 odd was also lying scattered on the floor.  When the police officers asked the defendants what they were doing there, none of them responded.  If they were indeed taking a rest, chatting or sharing experience at that place, then at least one of the 19 defendants should have come forward and told the police that they were engaging in lawful activities at that place.  It is quite apparent from the testimony and cautioned statements of the defendants that what most of them said was simply incredible.  For example, D3 said that he did not know anything about gambling but was willing to go to that place after midnight to watch others playing mahjong because he wanted to go with D13 for a drink.  As there was no telling at what time the mahjong game would finish, did it mean that D3 would wait for D13 indefinitely?  What D13 said regarding the reason for storing away the mahjong tiles simply defied belief.  If there were genuine concerns over neighbours being disturbed, then in the first place no mahjong game should be played at the time and premises in question.  D5 said he was at the material time chatting with others in the same field, but when he was asked what he was doing when the police arrived, he answered he was just “walking around”.  D7 was a renovation worker, but he was discussing renovation matters with D16 after midnight at the office and workshop in question.  D15 said that he was a construction worker and a part-time worker at an amusement game centre, and that he went to the premises to wait for someone called Ah Tong, but he stayed at the premises even though Ah Tong never turned up.  D4 and D6 said that they went there to discuss with D16 about certain circuit boards, but D16 made no mention of D4 or D6 at all in his cautioned statement.  D8 said that he was chatting at the premises, but when the police arrived, he was sleeping.  D10 worked in the insurance industry but was looking for business at the premises after midnight.  Another defendant was a chef but was sleeping at the premises.  From this it cannot be said that the defendants’ testimonies and evidence are consistent.  What they said was simply nonsensical.  The magistrate was justified in holding that the defendants failed to rebut the presumption under the Ordinance that they were gambling at the premises.  Accordingly, the defendants’ third ground of appeal must also fail.

21. For the above reasons, none of the defendants’ grounds of appeal against conviction is made out and all the appeals are therefore dismissed.