R. v. NGAN KWONG CHIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1214 OF 1996

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J U D G M E N T

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1. The appellant was convicted and sentenced on 27th September 1996 for one offence of being engaged in bookmaking.

2. The evidence before the magistrate was that on 5th June 1996, a police party went to premises physically occupied by the appellant at 2140 hrs. In a bedroom of those premises, the appellant was found sitting on a bed with a television which can be seen in one of the exhibits attached to the wall showing what, on the face of it, is race results. Also in the room, adjacent to the appellant, was a computer, also showing, as the learned magistrate found, the state of betting at the material time. On the bed where the appellant was sitting were series of documents which were admitted as Exhibits 2, 3 and 4.

3. The first ground of appeal is that the learned magistrate erred in finding that the appellant was engaged in the bookmaking operation when one of his considerations was based on the fact that it was a racing day when the police arrested the appellant. That is the way the ground of appeal was framed. The learned magistrate was entitled to take a common sense approach and to find that the Wednesday of the early part of June in any given year in the evening is a race day. This is a common sense approach with which I can find no fault.

4. Mr Kwok argues that there should have been evidence of the race results for that particular day for the learned magistrate to make the finding that it was a racing day and those results should have been tied into the information shown both on the computer and on the television.

5. It is not for this court to look at the evidence which has not been produced but to look at the evidence which was before the learned magistrate, and to decide whether he has made a proper finding or has been in error when he considered the evidence. Upon the evidence before him, it was perfectly proper for him to make a finding that it was a racing day and further to draw an inference that given the time of arrest on that day and the nature of the television programme and what appeared on the computer, to come to the conclusion that they were race results for the race meeting that evening.

6. The second ground of appeal is that the magistrate erred in accepting that the documents were records of betting placed with the appellant by other people in that, firstly, there was no proof that the room where the exhibits were found was the appellant's room or that he has enjoyed any exclusive use of the same to the entire exclusion of the others. In respect of that ground of appeal, the learned magistrate found that the appellant was discovered alone in that room sitting together with the computer and the television showing race results with, alongside him, records which an expert testified were racing records. Leaving aside the effectiveness of that evidence as to the nature of those records, if it is accepted that they were betting records, it is immaterial as to who had exclusive use of the room or whether it was the appellant's room. In the circumstances, if they were betting records, the magistrate was entitled to find that the appellant was seized of those records and had them for the purpose of bookmaking.

7. The second sub-ground of ground two was that there was no evidence as who actually wrote the figures and characters in those exhibits. Again, if it is accepted that those records are racing records, then it is immaterial that there is no specific evidence as to who wrote the records. The magistrate was entitled to find that they were the records of the appellant in all the circumstances.

8. Thirdly, it is argued that there was no evidential value in the expert's testimony when the whole of his evidence about betting records was only general in nature and did not relate to any of the actual racing results on 5th June 1996 which were not produced at the trial. In respect of this ground of appeal, the learned magistrate was satisfied that the records were racing records and was satisfied that results were being televised at that time over the television and that they were the similar results on the computer. That being so, he was entitled to draw the inference that the betting records were in respect of bookmaking being carried on at the time of the police entry. There is nothing in this ground.

9. The last sub-ground of appeal has rather more merit to it and reads :

"... in admitting the exhibits as betting records, the learned Magistrate had ignored and dismissed the significance of the fact as to whether the figures therein can be reconciled, a consideration which was plainly relevant to the veracity and/or weight of Sgt. Lau's evidence."

What I think Mr Kwok really means by this ground is that the question is not that of the admission of the exhibits but the weight to be placed upon them because they were clearly admissible. He argues that since the figures cannot be reconciled in as much as the results for persons listed in the records do not appear to reflect the odds being offered at that time and therefore they cannot be said to be records of bets. Given that circumstance, Mr Kwok argues that they were not sufficiently clear to amount to records of betting. The learned magistrate in his reasons said :

"Sergeant Lau's testimony, which I accepted as honest and accurate, was compelling. He was able to demonstrate in detail, throughout his evidence, that the records related to bookmaking transactions. His evidence was unequivocal both as to the meaning of the numbers and the use of red and blue pens to denote wins and losses. Of course, the records were brief and informal in nature and some were written on a torn sheet from a paper or magazine. But betting records, if related to bookmaking, are bound to have such characteristics. Illegal bookmakers are unlikely to keep ledgers.

There was no doubt that these were betting records for people other than the appellant. This was clear from the names of clients recorded in the documents, the lists of horses and types of bets and the records of profits and losses ascribed to different clients. The documents could not therefore be records of betting by the appellant on his own behalf.

I rejected the suggestion that the court was not justified in drawing the inference that these documents related to bookmaking and that they may only have been records kept by the appellant of bets passed by him, on behalf of friends, to a bookmaker. There was no evidential basis for such an inference and the documents themselves had to be seen in the context of all of the evidence, particularly to equipment such as the television showing racing and the computer showing the current state of betting. I had no doubt that these were the records of a bookmaker and that what the Appellant was engaged and that was what the appellant was engaged in at the time of the police raid."

10. What this finding amounts to is the learned magistrate having squarely before him in the arguments of Mr Kwok in the court below concerning reconciliation of these accounts was that the magistrate found that he did not in all the circumstances of the case expect there to be a complete record in the sense of a ledger and that so long as he was satisfied on the expert testimony of Sergeant Lau Cheng as he was that these were records of gambling. It did not require him to analyse those records in such a manner as to show that they were complete records of gambling. He was entitled, he found, to rely upon partial records in order to make out the offence.

11. It is not for courts of appeal to retry cases. It is for a court of appeal to look at the findings that a magistrate has made and to determine whether in making those findings the magistrate has erred, has wrongly proceeded, or has in some way not applied the law as he ought. I cannot find that the learned magistrate has in this case done any of those things.

12. The last ground of appeal is that the magistrate's finding that the appellant was engaged in bookmaking was unsafe and unsatisfactory when the fact upon which he drew the inference that no one else but the appellant was present in the room was far from conclusive.

13. I have in my findings in respect of the above grounds substantially dealt with this ground of appeal and suffice to say that I do not find the conviction to be unsafe and unsatisfactory. The appeal against conviction is dismissed.