HKSAR v. TAM CHUN LEUNG

HCMA226/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 226 OF 2002

(ON APPEAL FROM KCCC 3656 OF 2001)

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J U D G M E N T

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1) The appellant was charged with one offence of engaging in bookmaking under section 7(1)(a) of the Gambling Ordinance, Cap. 148.

2) He was tried by Ms Tracy Chan sitting in Kowloon City Magistracy on 31 January 2002 and was acquitted of that charge but convicted of a charge under section 7(1)(c) of Cap. 148, namely that he had assisted either directly or indirectly another person in bookmaking.

3 ） The evidence adduced by the prosecution at the trial consisted of the arresting officer who gave evidence that on the day in question he had gone with his supervisor to a pub called the Colony Pub and upon entry he saw the appellant sitting outside the end of the bar counter with his earphone plugged into his ear. Upon a search of the appellant, the arresting officer found three betting slips in the appellant's right rear trousers pocket and 45 ATM slips in his right front pocket. Alleged verbals made by the appellant to the arresting officer were ruled by the magistrate to be inadmissible in evidence.

4 ） The second witness was a gambling expert who gave evidence that two of the betting slips indicated that a few punters had placed bets on soccer matches and he pointed at a group of figures in the middle of one of the slips and explained that those were calculations on the bets against the results of football matches. The figure with a plus meant that the bookmaker had won and the figure with a minus meant that the punter had won. The expert was of the opinion that two of the slips were betting slips.

5 ） The learned magistrate concluded that by just reading those two betting slips, she could not tell whether the bets appearing on the documents had in fact been placed or not and that this was not the purpose of producing those documents.

6 ） As regards the ATM slips, based on the evidence of the expert that a bookmaker would usually settle a bet through ATM machines and keep the ATM slips as evidence of settlement, the magistrate found that such ATM slips found on the appellant were the kind of record which might be kept by a bookmaker. However, she concluded that she could not find that the transactions recorded in the ATM slips did take place and since the prosecution did not rely on those ATM slips to prove the guilt of the appellant, she accordingly attached no weight to them.

7 ） The magistrate found the appellant not guilty of the offence under section 7(1)(a) but applying the presumption set out in section 19(3), she convicted the appellant of the offence under section 7(1)(c) of the Ordinance.

8 ） Mr Ma who appears for the appellant both in the court below and before me has argued that the magistrate was in error in using the presumption under section 19(3) when there is no consent of the Secretary for Justice for the institution of the prosecution under section 7(1)(c). Alternatively, he submits that section 19(3) is inapplicable where the court is considering a charge other than one under section 7(1)(c) but in the event acquits the defendant of the original charge and substitutes for it an offence under section 7(1)(c).

9 ） Mr Leung for the respondent submits that because section 7(2) allows a court to find a defendant guilty of an offence under section 7(1)(c) if the court is not satisfied that an offence under section 7(1)(a) or 7(1)(b) has been made out, the offence under section 7(1)(c) becomes an alternative offence to an offence under section 7(1)(a) or 7(1)(b).

10 ） In addition, Mr Leung submits that because the wording in section 19(3) is : "for the purposes of any proceedings under section 7(1)(c)" the presumption provision is not confined to proceedings brought under section 7(1)(c) but is wide enough to cover the situation as happened here where the magistrate acquits of section 7(1)(a) or 7(1)(b) and substitutes therefor an offence under section 7(1)(c). However, Mr Leung concedes that if that were so, section 19(3) would more fully paint the picture if it says "for the purposes of any proceedings under section 7" (and not section 7(1)(c)).

The law

11 ） Section 7(1)(c), 7(2) and section 19(3) were all repealed on 31 May 2002 by the Gambling (Amendment) Ordinance No. 12 of 2002. Section 7 of Cap. 148, when it was first enacted in 1977, did not have sub-section (2). It was amended in 1981 by the introduction of sub-section (2) which at that time simply read "no prosecution shall be instituted under sub-section (1)(c) without the consent of the Attorney General". This sub-section was brought in at the same time as the presumption provision in section 19(3).

12 ） O'Connor J in R. v. Fung Sik Chung [1985] 1 HKC 194 at 197 said :

"It appears that Legislative Council when agreeing to the presumption being added, decided that the consent of the Attorney General should be required for a prosecution under s 7(1)(c), as a safeguard against misuse of the presumption."

13 ） Section 7(2) was amended in 1990 and now reads :

"No prosecution shall be instituted under sub-section (1)(c) without the consent of the Secretary for Justice but if on the trial of any person for an offence under sub-section (1)(a) or (1)(b), it is not proved that the accused is guilty of an offence under either one of those sub-sections but it is proved that the accused is guilty of an offence under sub-section (1)(c), the accused may notwithstanding the absence of consent of the Secretary for Justice to the institution of a prosecution under sub-section (1)(c), be convicted of an offence under sub-section (1)(c) and dealt with accordingly."

This sub-section was further amended in 1997 to substitute the Secretary for Justice for the Attorney General. O'Connor J in Fung Sik Chung (Supra) at p.198 also said per curiam :

"Section 7 of the Gambling Ordinance is unnecessarily complex. It creates three offences, thereby causing difficulties. If the words 'commits an offence' in s 7(1) were replaced by 'commits the offence of bookmaking', there would be only one offence which could be committed in various ways. Further, an amendment of section 7(2) so that instead of the Attorney General's consent being required for a prosecution, it was only required before the presumption could be applied, would be an improvement. Such amendments would achieve the objects of the legislation without the pointless difficulties that exist at present"

14 ） It is clear that O'Connor J was of the view that the presumption could only be applied if there were a consent of the Attorney General for the prosecution. I respectfully agree with that view that for the presumption provision to apply there must be a consent of the Secretary for Justice to the institution of an offence under section 7(1)(c). Furthermore, my view is that the words "for the purposes of any proceedings under section 7(1)(c)" in section 19(3) must mean that the charge before the court has to be one under section 7(1)(c) and not any other charge. Therefore, in my judgment it is incorrect to say, as the magistrate did, that because section 7(2) allows a court to substitute for an offence under section 7(1)(a) or 7(1)(b) an offence under section 7(1)(c), when the court is considering a charge under section 7(1)(a) or 7(1)(b) it can invoke the presumption in section 19(3).

15 ） In my view, therefore the magistrate was in error in invoking the presumption when the charge before her was not one under section 7(1)(c). It is, in my view, arguable whether the evidence against the appellant as I have outlined above was sufficient to support a charge under section 7(1)(c) without the aid of the presumption. However, in view of the magistrate's findings that the two betting slips were insufficient for her to find whether or not any bets appearing on the documents had in fact been placed and as she was attaching no weight to the ATM slips, I am bound by her findings of fact.

16 ） I therefore allow the appeal and quash the conviction and the sentence imposed. The fine if paid has to be reimbursed to the appellant. The application for costs is refused as in my view the appellant by his conduct clearly brought suspicion on himself.