Chan Yee-mui v. The Queen
Read the full judgment text of CACC 154/1979 on BabelCite. This Court of Appeal judgment was delivered on 24 April 1979.
1. The appellant appeals against his conviction by a magistrate of the offence of engaging in bookmaking contrary to the provisions of section 7 of the Gambling Ordinance.
|
CACC000154/1979
-----------------
----------------- Coram: McMullin J. in Court Date of Judgment: 24 April 1979 ----------------- JUDGMENT ----------------- 1. The appellant appeals against his conviction by a magistrate of the offence of engaging in bookmaking contrary to the provisions of section 7 of the Gambling Ordinance. 2. The learned magistrate relied principally upon the evidence of one witness, POON Kwok (the third prosecution witness) who said that he went to the Lam Choi Kee Snack Shop to place a bet on a greyhound race with the defendant. It was common ground that the defendant was the sole proprietress of that food shop. A party of five police officers in plain clothes was on surveillance duty outside the shop. Three of these police officers testified to having seen the witness Poon enter the shop and hand something to the defendant. Poon's evidence was to the effect that he had placed a bet of $14 on a certain dog in a given race but he had paid only $12.60 because of a 10% discount given to him by the proprietress of the shop. Together with the money, he handed in a slip with a character indicating his name upon it but he got no receipt. On leaving the shop he was intercepted by the police officers who then entered the premises together with him. The proprietress was informed that the police were engaged upon an investigation into her activities and a search of the premises was commenced. During this two other men came into the shop. They too were intercepted by the police and each of them was found to have upon his person a document which was described in the evidence as in each case "a betting slip". These two men gave evidence for the Crown and each admitted that he had gone to that place to lay bets on greyhound races with the proprietress of the establishment. Each of them identified the document found in his possession as "a betting slip". WONG Chung-pak was proposing to bet $7 but because of an expected 10% discount the money which he was proposing to pay was only $6.30 the sum found in his possession. The other witness, LAI Kam-wah, said that he did not see the proprietress but that he was proposing to deal with a foki of the shop who was then preparing coffee and he was about to give him $5 for the purposes of betting. 3. Although it was not made specifically a ground of appeal Mr. Gunston for the appellant complained of the admission in evidence of certain statements made by the three lay witnesses to the police immediately after they had been intercepted and searched. Mr. Duncan for the Crown admits that the statements then made were in the nature of hearsay. This was clearly so but no prejudice has arisen as a result. Not only did the three witnesses give the evidence which has already been described but it is clear that the learned magistrate placed no weight upon the statements that the witnesses had previously made to the police. 4. Before dealing with the principal ground of objection made on behalf of the defendant I will dispose of two subsidiary matters which are also formal grounds of appeal. A police constable CHAN Fat gave evidence to the effect that he had acquired special knowledge relating to off-course betting on greyhound races during the period when he had been attached to the Kowloon District Special Duty Squad which dealt with cases of that kind. He told the court that the slips of paper seized from two of the witnesses were in fact betting slips although in respect of that seized from LAI Kam-wah he was unable to say whether it was a betting slip in relation to greyhound racing or horse racing. The learned magistrate regarded this evidence as that of a person who had to quote her own words
I was referred to the decision in CHAN Kim-hung & Others v. The Queen(1). The principle there enunciated to the effect (a) that a witness alleged to be an expert should have acquired a special knowledge by study or experience of the subject to which he speaks and (b) that it is for the court to decide whether the qualifications of the witness are sufficient to receive him as an expert is not in dispute. The term "expert" is sometimes not wholly justified by the needs of the occasion. It is in itself a somewhat elastic term extending all the way from a professional expert with a profound knowledge of some branch of science or art to the testimony of some person versed in the skills of some sport or pasttime. The constable CHAN Fat was saying no more than that the documents which he had examined were similar to betting slips with which he had become familiar in the course of his police duties. Expert testimony is a somewhat magniloquent description of what he had to say. It is true, as Mr. Gunston pointed out, that even this humble form of expertise was somewhat called in question by the allegation of the witness that the slip which he identified as a greyhound betting slip could be so identified because a one dollar bet can be placed on a dog race but not on a horse race. It may be as Mr. Gunston says that he was thinking there of on-course betting and not of the obviously much more informal circumstances of illegal off-course betting. Be that as it may he was not cross-examined on this or any other matter. The witness gave reasons for his answers based on the combination of figures shown on the slips; no other explanation was offered and the learned magistrate was entitled to rely upon that testimony as coming from one who had a special knowledge of such matters. 5. Then it is said that the magistrate erred in finding that the evidence concerning discount afforded proof that the appellant had set up a betting business at that shop. That was however simply one item of the evidence and taken together with the other testimony it was capable of affording additional proof of the businesslike character of these activities. 6. The principal ground of appeal and the only ground that has afforded me any anxiety is to the effect that the learned magistrate failed to warn herself that the testimony of Mr. POON Kwok - the witness upon whom she principally relied in convicting - was that of an accomplice. The same point would, of course, arise in respect of the testimony of the witnesses WONG Chung-pak and LAI Kam-wah and although, as Mr. Gunston points out, the learned magistrate does not seem to have leaned very heavily upon their evidence, in what I have to say on this matter I bear in mind the testimony given by those witnesses as well as that given by the witness POON Kwok. It may seem strange that the status as witness, in a case of this description, of a person laying a bet has not long since been established by judicial authority in this territory. Such nevertheless appears to be the case. Mr. Gunston for the appellant indeed took the view that the status of a bet-maker vis-a-vis the book-maker was so obviously that of an accomplice that any deployment of authority on the question was unnecessary. Mr. Duncan for the Crown however strongly contested that Poon was an accomplice within any of the categories described by Lord Simonds in the leading authority of Davies v. D.P.P. (2). In his contention the witness POON Kwok (and presumably the other two witnesses as well) could not, on the circumstances disclosed in this case, be brought within any of the categories described in Davies. It is not enough, counsel said, to find that POON Kwok was involved in a transaction with the defendant which touched upon the substance of the charge against her in order to categories him as her accomplice. The witness, he said, was no doubt on his own admission guilty of an offence under section 8 of illegal betting but that did not denote him a participant in the act of illegal bookmaking and unless he could be shown to have been a participant in that act he would not fall within the only relevant category viz. that of aider or abettor of the defendant as principal. The test in other words is whether POON Kwok (and the other witnesses) could, upon their own admissions, have been charged together with the defendant as principals in the second degree in respect of the offence of bookmaking. Although various analogies were advanced in the course of the argument the advocates on either side were not then in a position to refer me to any authorities to illuminate the application of such a test and finding the matter one of some perplexity I reserved judgment to consider these arguments in the light of such additional authority as might be found further along the road in the direction indicated by the clear and simple authority of the decision in Davies. 7. I should perhaps add at this point that I had considered the advisability of submitting this point for consideration at the highest appellate level under section 118 of the Criminal Procedure Ordinance and upon communicating that possibility to Mr. Gunston and Mr. Duncan they expressed themselves in favour of such a course. On further consideration, however, I am satisfied that the relevant principles are sufficiently clear to warrant the appeal being disposed of at the present level. At the outset I may say that I think the test as propounded by Mr. Duncan is the correct one. Neither POON Kwok nor either of the other two witnesses should be regarded as an accomplice unless it is clear that such witness could have been charged as a principal in the second degree with an offence under section 7. I find a useful statement of general principle on this subject at page 356 of the first volume of Professor Glanville Williams treatise on the Criminal Law (2nd Edition). It is in these terms:
He then adds:
Taking the present case to show such a "bilateral" situation then although this passage supports the various propositions put forward therein by reference to decided cases (principally from the Commonwealth or America) in which the courts concerned are usually to be found considering the terms of some specific statute, nevertheless the tenor of the commentary is sufficiently general to afford a reliable indication of the usual approach to this matter in the common law jurisdictions while voicing a doubt which is salutary as a recommendation to caution when one comes to consider the circumstances of the individual case and the terms of the relevant legislation. 8. I turn now to consider a passage from the pen of another academic writer which helps to bring the problem to sharper focus. This is to be found in an article entitled "The Corroboration of Accomplices" by J.D. Heydon which begins at page 264 of the Criminal Law Review for 1973. It is in effect an essay devoted to a close and critical examination of the principles laid down in Davies v. D.P.P. (2). The author is arguing in favour of a somewhat wider and more inclusive test of what constitutes an accomplice than was laid down by the court in that case. I am not now concerned with the thesis of that argument although it must command the most respectful attention. Dealing with the first category of accomplices established in the judgment of Lord Simonds (the only category relevant to the present case) the learned author says (at page 276):
I have quoted that passage in extenso as well as the authorities upon which the several propositions contained in it are based because they hit so close to the area with which we are now concerned that I think they can be said to narrow down, despite the variety of jurisdictions and legislation with which they deal, to a guiding principle which can be applied to the circumstances of the present case. It is evident that the proposition with its supporting authority which comes closest to our present concerns is that of Fitzgerald v. Rothwell (cited above). Although I have been unable to obtain the original report of the decision in that case I have been able to extract the useful summary thereof from The Australian Digest 2nd Edition Volume 14, page 275. The note reads as follows:
Brief though that extract is it is, I think, sufficient to establish the extremely important point that it was because the offence of the bookmaker consists in a continuous course of conduct that the person laying a bet with him was said not to be considered an accomplice in the sense of aiding or abetting him. What I take from that is that such an isolated act was not thought to be sufficiently involved with the running and management of the business as a business to justify regarding the bet-layer as being himself involved in the business of bookmaking. To a somewhat similar effort is the decision in Jenks v. Turpin(3) in which ordinary members of a club were held not to aid or abet the management in the offence of using the club for unlawful gaming. With those cases one can usefully contrast the decision in Fairburn v. Evans(4) which was one of several decisions taken under the old statute known as the Sunday Observance Act 1677. The defendant in that case had purchased some sweets from a trader upon a Sunday. The trader was held to have sold them in the course of his ordinary calling as refreshment-house keeper, conduct which the act forbade, and the defendant was convicted of aiding and abetting him in that offence. It is evident that no consideration as to the solitary act of buying sweets being insufficiently associated with the continuous carrying on of trade can have exercised the appellate court in dismissing his appeal. Although the court purported to distinguish Jenks v. Turpin it may be thought that the point of distinction is rather fine. To aid a man in the pursuit of his calling is no doubt a different thing from aiding him in the management of his business; but the generous if somewhat diffuse language of the charge in Jenks covered the mere using of the premises for the unlawful purpose and one would have thought it was possible to aid in that without aiding in the management of the club. These cases are, I think, sharply illustrative of the efforts of the courts to identify the line of cleavage between acts which may constitute aiding and abetting and those which do not with Fitzgerald v. Rothwell(5) coming closest to the circumstances of the present case. But even if the principle underlying the Tasmanian case be correct I do not think that it would avail the Crown in the present case. The appellant was charged was charged under regulation 7 of the Gambling Ordinance. The relevant portion of which reads as follows:
"Bookmaking" is defined in section 2 as follows:
Selecting from the language of these two sections just so much as is sufficient to cover the narrow circumstances presented to the court in this case it can be said that one would be shown to be guilty of the offence about whom it was shown that he or she had on a single occasion received a bet by way of trade or business. The language of the Ordinance in other words has no regard to any consideration of continuous operation or the like. It would seem therefore that any person who upon a single occasion negotiated with this defendant so as to facilitate her receiving a bet by way of trade or business can only be regarded as aiding or abetting her in an act of bookmaking contrary to the provisions of section 7. That being so it was incumbent upon the learned magistrate to direct herself in the usual way as to the danger inherent in the evidence and as to the desirability of seeking corroborative evidence to support what those witnesses had said. In a full and careful summary of her reasons for verdict she makes no mention of this possibility nor is there anything in those reasons as a whole to indicate that it was present to her mind. Whatever may have been the position in this territory prior to the decision in the case of CHAN Siu-wong v. The Queen(6) it has been necessary since that case either for a judge sitting alone or for a magistrate to make it apparent in his judgment or grounds of decision that he has warned himself of the danger of convicting upon the uncorroborated testimony of an accomplice. Is this a fatal defect in the present case? That was the question which Leonard J. put to himself in LEE Kam v. R.(7). That was a case in which the learned judge had found that the magistrate at first instance had gone wrong in law in finding corroboration in the appearance of distress shown by a complainant when the only other evidence against the accused was that of the complainant who claimed that he had indecently assaulted her. In finding that this could not amount to corroboration in the circumstances of the case before him the learned judge adopted the test which had been applied in the case of Philips(8) and Rudge(9). That test may be proposed in the general form: that the proviso will not to be applied unless the court can say that if the question had been adequately dealt with the jury must inevitably have convicted. It had been said in Baskerville's case(10) that if a judge omitted to give the necessary warning to the jury the conviction was bound to be set aside upon appeal. As to this Lord Simonds in Davies v. D.P.P.(2) says: (page 398)
The learned judge approved this test save only for the addition that in his view the reference to a jury must mean "a reasonable jury". In LEUNG Hei v. R.(11) evidence which was both irrelevant and highly prejudicial was admitted by the trial magistrate on a charge of keeping a common gaming house. The principal evidence in the case was that of certain police officers who had placed bets with the appellant by way of obtaining evidence against him. It was contended that they were in the position of accomplices. The learned judge of appeal dismissed that contention and then went on to consider the prejudicial evidence which consisted of an answer to a question put to the appellant in cross-examination concerning a prior police raid upon the premises. At page 449 the learned judge said:
In the present case the evidence supporting the direct testimony of POON Kwok (which required corroboration) was of such cogency that I think it would be wholly unrealistic to suggest that had she adverted to the need for caution in respect of his testimony the learned magistrate would not have found in the remaining testimony corroborative matter of overwhelming force. I do not mean, of course, the testimony of the other two witnesses who said they had gone to that place to lay bets for that testimony itself would require corroboration. I mean the evidence of the police officers who saw the witness POON Kowk enter the shop and hand something to the proprietress. That is directly confirmatory of his statement that at that time and place he had handed to her a sum of money to be used as a bet upon a particular race together with a paper bearing his name. Mr. Gunston concedes that if that paper, and presumably the money accompanying, it had been recovered that, taken with the testimony of the police officers who observed the event, would have been sufficient to confirm the allegation made by the witness. The defendant who gave evidence on her own behalf simply denied that she carried on the business of bookmaker. She did not however deny that she had been handed a piece of paper by the witness and she did not allege that she had sold him any food and she said nothing to show how this transaction with the witness related to the sale of anything in the nature of foodstuffs to him. In addition there was the evidence as to the betting slips found upon the persons of the other two witnesses when they arrived in the shop at the time when the police were searching it. Mr. Gunston has indeed sought to argue that this evidence was also inadmissible as being irrelevant and highly prejudicial. I cannot agree. It was said by Woodhouse J. in the New Zealand case of Police v. Machirus(12):
That case was relied upon by Yang J. (though for a different purpose) in WONG Wing-chun v. The Queen(13), a case upon which Mr. Duncan strongly relies and with good reason. A conviction upon a charge of bookmaking had followed upon evidence which consisted principally of cautioned statements allegedly taken in the presence of the defendant. It would appear that none of the witnesses who made those statements were actually called to give evidence against the defendant. Evidence of the statements made - they were four in number - was tendered by the prosecution on the basis that they formed part of the res gestae at the time of the arrest of those persons in the premises of the defendant. The learned judge upon appeal held that three of those statements should not have been admitted but that that of the fourth man which consisted of the words "Uncle Chung, place this for me", being of the nature of a verbal act accompanying the attempt to take something out of his pocket, in which was later found some cash and certain pieces of paper, had been properly admitted. But the only other evidence in the case consisted of the discovery of betting slips and cash in the possession of the five persons whom the police arrested upon the premises. The learned judge said:
9. That is a view with which I am in respectful agreement. In all the circumstances and notwithstanding the failure on the part of the learned magistrate to address her mind to the question of accomplice evidence I am satisfied that this is a peoper case for the application of the proviso to section 83(1) of the Criminal Procedure Ordinance. The appeal is dismissed.
Representation: Gunston (Hampton Winter & Glynn) for the appellant. Duncan, for the respondent/Crown. (1) (1977) H.K.L.R. 479. (2) (1954) A.C. 378. (3) (1884) 13 Q.B.D. 505. (4) (1916) 1 K.B. 218. (5) (1957) Tas. S.R. 296. (6) (1970) H.K.L.R. 61. (7) (1977) H.K.L.R. 309. (8) (1925) 18 Crim. App. R. 115. (9) (1924) 17 Crim. App. R. 113. (10) (1916) 2 K.B. 658. (11) (1977) H.K.L.R. 448. (12) (1977) 1 N.Z.L.R. 288 at 292. (13) Criminal Appeal 498 of 1978. |