HKSAR v. CHOW WUN SHING

HCMA1187/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1187 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by a Magistrate of the offence of engaging in bookmaking contrary to s 7(1)(a) of the Gambling Ordinance, Cap 148. The particulars of the offence stated that on 8 July 1998, at Flat 3, 27/F, Block A, Yee On Court, 79H Waterloo Road, Homantin, Kowloon, in Hong Kong, the Appellant engaged in bookmaking.

2. A number of grounds of appeal against conviction are set out in the Perfected Grounds. At the outset of the hearing before me, Mr Lok, SC for the Appellant, summed up the main thrust of the grounds, being the inadequacy and insufficiency of reasons given in the Magistrate's verdict and Statement of Findings, which related to the following areas :

(a) As to the offence of bookmaking of which the Appellant was convicted, there was no finding by the Magistrate in what precise way was the Appellant guilty of the bookmaking. In s 2 of the Gambling Ordinance, bookmaking is defined as meaning "the soliciting, receiving, negotiating or settling of a bet by way of trade or business whether personally or by letter, telephone, telegram or by any other means." However, in all of the Magistrate's findings, nowhere did he mention in what aspect of bookmaking did he find the Appellant guilty.

(b) The Magistrate did not resolve the following discrepancy. PW1, the arresting officer, testified that the Appellant told him in the Appellant's premises that the formula bets received by the Appellant amounted to about $1.8 million. On the other hand, there was no record of this information in the post-recorded statement made by PW1.

(c) The Magistrate did not notify the Appellant or his Counsel at the trial, Ms Crabtree, whether PW3 was accepted by the Magistrate as an expert in soccer betting activities. PW3 was called by the Prosecution as an expert in soccer betting activities but the Magistrate in his verdict and Statement of Findings said that there was a "small amount of uncertainty" about PW3's evidence as well as "some imperfections" in the Prosecution's evidence. Yet the Magistrate did not specify what the uncertainy or imperfections were.

(d) Although the Magistrate admitted the post-recorded statement and the cautioned statement of the Appellant made to PW1 in evidence, he did not state what admissions were attributed to the Appellant or what answers or all answers were attributed to the Appellant. He further failed to state the weight he attached to the statements and what part or parts of their contents he accepted.

3. Based on the argued inadequacy of the Magistrate's reasons, Mr Lok submmited that the Appellant was deprived of his right to know of what exactly he was convicted. It was submitted that it would be against open justice for the Appellant to have been convicted in a manner with insufficient reasons given by the Magistrate. Moreover, the Appellant was deprived of the chance to properly appeal against the Magistrate's decision and the appellate court was also deprived of the opportunity to examine and evaluate the decision. Mr Lok argued that such a defect in the Magistrate's Statement of Findings amounted to a fundamental flaw in the conviction and it should be quashed. However, Mr Lok was unable to produce any authority in support of these arguments.

4. The Appellant was charged with and convicted of the offence to bookmaking contrary to s 7(1)(a) of the Gambling Ordinance. That section provides that any person who engages in bookmaking, whether on one occasion or more than one occasion, commits an offence. As I said before, bookmaking is defined in s 2 of the Ordinance as above cited.

5. When convicting the Appellant, the Magistrate gave brief reasons. He said that he believed PWs 1, 2 and 3 were honest and reliable witnesses and he believed them. He admitted the statements given by the Appellant to PW1 and concluded that on the basis of the evidence, particularly that of PW3, the police expert and the accounts the Appellant gave to the police, he had no doubt that the documentary and other exhibits produced were the paraphernalia of bookmaking. In the Statement of Findings, the Magistrate again stated that he found all the three prosecution witnesses to be honest and reliable and he believed them. He accepted PW3 as an expert and accepted his conclusion as to the exhibits he examined. He admitted the Appellant's admission into evidence and was satisfied that the Appellant had made the admissions attributed to him. He was satisfied that it had been proven the Appellant had been found in possession of, inter alia, the betting slips, exhibits P2 to P9, that those exhibits recorded betting in the World Cup Football Competition engaged in by him, and that when questioned by the police, he had fully admitted these matters. Mr Lok argued that the mere possession of the so-called betting slips, without proof being tendered as to their authorship, would hardly be sufficient proof of the offence against the Appellant. This was conceded by Mr To for HKSAR. What is significant in the present case is the admissions made by the Appellant in the post-recorded statement as well as the cautioned statement. There, it was recorded by PW1 as follows:

"After I enquired of you, you admitted that your were bookmaking on soccer formula betting there."

PW1 said in evidence further that when he asked how much betting the Appellant had received, the Appellant's answer was about $1.8 million. The cautioned statement that was taken after the post-record contained more damaging admissions made by the Appellant. He admitted that he accepted bets on soccer. His friends called him and he bet with them on soccer. His admissions also included the details of the football match involved as well as the odds offered by the Appellant. It also mentioned the $1.8 million of bets that he had collected, the ways by which he decided on the odds of the bets and that the bets of $600,000 odd shown in one of the exhibits siezed were accepted by a friend of his.

6. In such circumstances, I consider that it would not be necessary for the Magistrate to set out which part of the cautioned statement or the post-recorded statement that he accepted as constituting the necessary elements of the bookmaking.

7. PW1 did not put the Appellant's utterance about the $1.8 million bets received in the post-recorded statement. On this, PW1 gave explanation in his evidence. He said that the $1.8 million was mentioned by the Appellant before he was cautioned in his premises. As the Magistrate accepted the evidence of PW1, it was not necessary for him to resolve this discrepancy which had been explained. He must have taken to have accepted the explanation of PW1. From the key evidence of the case, namely the post-recorded statement and the cautioned statement, it is quite clear that the Appellant was receiving bets on the soccer game that was played on the night of his arrest, 8 of July 1998, ie, Brazil against Holland. This is also clear from the answers he gave in the cautioned statement that he received calls from his friends and he acted as a banker in those bets on the soccer game. Although it would have been better for the Magistrate to have mentioned specifically the findings made by him on which he based his decision to convict the Appellant, in the circumstances there can be no mistake and anybody reading the record of the case, including the Appellant and his legal representatives, would fully understand upon what basis that the Magistrate convicted him.

8. As to the "small amount of uncertainty" and "some imperfections", from the reading of the record, it appears to me that the Magistrate was referring to the absence of reference to the $1.8 million in the post-record and the change of evidence by PW3 on the meaning of the code "A" in exhibits P3 to P9, the betting slips. I have already dealt with the $1.8 million. PW3 at first said in evidence that in the context of soccer gambling records, "A" meant $10,000, "B" $1,000 and "C" $100. However, after his attention was directed to the contents of the betting slips, which he had not examined very carefully before giving evidence, he noticed that only "A", but not "B" or "C", was used in those exhibits. He then corrected his earlier evidence that in the present case, as only "A" was used, he considered that it meant $1,000 and not $10,000.

9. Apart from these two matters, Mr Lok was not able to point to any other matter which could have amounted to uncertainty or imperfection. As the Magistrate had found PW1 and PW3 to be honest and reliable and accepted their evidence, I do not consider that Mr Lok's arguments on these matters help the Appellant's appeal any further.

10. Mr Lok further attacked the Magistrate's verdict on the following grounds:

(a) There was insufficient evidence to prove that PW3 should have been accepted as an expert in soccer betting activities.

(b) The Magistrate failed to take into account that the admitted figure of $1.8 million exceeded the figure of $1,258,500 worked out by Ms Crabtree from exhibits P3 to P9 found in Appellant's premises, calculated in accordance with the evidence of PW3.

11. According to the evidence of PW3, it was the Officer in Charge of the case who provided to him the figure of $1.87 million, and he himself had not checked if that figure was correct. Although Ms Crabtree at the trial submitted to the Magistrate that according to her calculation based on the methods as stated by PW3, the total amount of bets on exhibits P3 to P9 amounted to $1,258,500, there was no evidence before the Magistrate that the calculation was correct, nor can it be shown that he accepted the submission. Mr Lok was not able to show me any evidence that the lesser figure could be worked out from the exhibits or that the lesser figure was correct. I do not think that anything turns on the difference between the figures, for it was not incumbent upon the Prosecution to prove that the betting slips seized were all the betting slips that evidenced all the bets that the Appellant had received. Nor was it necessary for the Prosecution to prove that the Appellant was telling the truth about the total amount of bets received by him.

12. Now I turn to the expert PW3. Mr Lok referred me to the case of James Langdon Bonython (1984) 15 A Crim R 364, in which the South Australia Court of Criminal Appeal held that in considering the admissibility of the expert opinion evidence, the judge must consider first, whether the subject matter of the opinion fell within the class of subjects within which expert evidence was admissable, and second, whether the witness had acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court. Mr Lok relied on the second limb.

13. At the beginning of PW3's evidence, he told the court of his knowledge and experience. His responsibility was to interview persons who were connected with gambling cases to collect information and news from them. He started to be involved in gambling cases from 1986. He received a training course for gambling experts. Ordinary gambling activities in Hong Kong were covered by that course. In 1996, he was a trainer in the Detective Training School with responsibility to train some experts on gambling. He kept up-to-date with his study and currently he was the only full-time gambling expert in the police force. That was the reason why for all the cases which were handled by the police force, they had some kind of research and carried out certain studies on them and collected information about them. He had given expert evidence nearly 300 times and his evidence was accepted on all of the occasions. He had handled a formula betting case in respect of soccer, ie, relating to the British Premier League, prior to the World Cup Competition. In the period during which the World Cup Competition was being broadcast, PW3 was handling 14 soccer gambling cases, some of which had been dealt with by the courts and finished. Out of the 14 cases, about 10 were pending trial whereas three cases had been completed.

14. Mr To for HKSAR submitted, and I agree, that whether PW3 was correctly treated as an expert was not only dependent on the number of occasions he had given evidence in court relating to soccer gambling activities, but his other gambling experiences should also be taken into account. I am not persuaded that PW3 was not qualified as an expert on soccer gambling, especially in view of the large number of occasions that had given evidence as a gambling expert in the courts, his study and research in gambling activities, and that at least on three previous occasions prior to the trial before the Magistrate he had given evidence on soccer betting. Indeed, when Ms Crabtree was asked by the Magistrate whether she wished to cross-examine on the area of expertise, she responded by saying that she would wish to cross-examine PW3 but for the moment she was happy for him to give evidence as an expert. She added that it might be on particular areas that she was a bit concerned as to his expertise. However when PW3 had finished his evidence, no application was made by Miss Crabtree either to sound her objection to the acceptance of PW3 as an expert on soccer betting or to seek a ruling from the Magistrate that PW3 should or should not be treated as such an expert. In the circumstances, Mr Lok's submissions regarding the status of PW3 as a soccer betting expert are rejected.

15. I have examined all the other grounds of appeal, but I do not find anything which may cause me to doubt the correctness of the Magistrate's decision. The conviction is fully supported by evidence before him and is neither unsafe nor unsatisfactory.

16. For all the above reasons, I dismiss the appeal.