The Queen V.Yeung Ying Cheung

CACC001547/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1547 OF 1983

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BETWEEN

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Coram: Garcia, J. in Court

Date: 11 January 1984

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JUDGMENT

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1. On the 1st day of October 1983, which was a Saturday, a party of police officers under Senior Inspector Agley executed a gambling authorisation at 1501, Block E, Amoy Gardens, Ngau Tau Kok, Kowloon.

2. Upon arrival there, the door bell was rung by one of the police constables in the party and although a man came to answer the door, no attempt whatsoever was made to comply with the request of the police party that door be opened. Eventually, upon the instructions of Inspector Agley, the door was broken down.

3. Once entry was gained, the Appellant was seen to be inside the toilet and on one of the police constables entering the toilet he found the lavatory bowl filled with water and some pieces of paper were floating on it. He also noticed some patches of water on the floor indicating that an attempt had earlier been made to flush the pieces of paper away. As no response was made by the Appellant to the question as to what he was doing there, he was searched and on his person was found 18 pieces of paper containing calculations which were described by an expert as those which might be made by a bookmaker. There was only one other man inside the premises at that time the police entered, that is, Yeung Ying Chuen, and he was seen standing in the sitting-room of the premises. He was later taken into the bedroom of the flat and there a search was conducted in his presence. From the rubbish bin in that room seven pieces of paper stated to be betting slips were found. On top of 2 desks placed side by side in the bedroom on each of which was a telephone, there were one calculator, ball pens, writing pads and a radio which at the time of raid was tuned in to a broadcast of horse races run at Happy Valley that day. The articles were described as being equipment which would normally be present in an off-course betting centre. Further, the Appellant when questioned produced 2 keys which fitted the metal gate and the wooden door at the main entrance to the flat.

4. Whilst the police were present in the premises, 20-odd calls were received on one of the telephones but only one call was properly admissible as referring to a bet placed on a horse race that day.

5. The Appellant and Yeung Ying Chuen were then arrested and both have been charged jointly with Bookmaking, contrary to Section 7(1) (a) of the Gambling Ordinance.

6. At the trial before the learned Magistrate the Appellant gave no evidence after it was held that he had a case to answer.

7. The submission of no case to answer was upheld by the learned Magistrate in respect of Yeung Ying Chuen and the relevant reasons for doing so and for holding a case to answer in respect of the Appellant were as follows:

"D2, that is Yeung Ying Chuen, might not have been receiving bets. But D1, the Appellant, was in possession of papers bearing calculations and he was in the lavatory in circumstances which infer that he was trying to destroy papers by flushing them away. If he was just a spectator or a visitor, or even a tea-boy, I think a reasonable jury would ask itself what he was doing with a pocketful of calculations, in those circumstances when obviously bookmakers must make calculations, and at least one such paper, albeit not dated 1st October, was according to P.W.5, that is the expert, an account of bets. Why was he in the lavatory apparently destroying papers. When the police were breaking down the door, if he had not immediately beforehand been concerned with the receiving, soliciting or negotiating bets I think the jury could, if it believed this evidence convict D1."

8. In the result the learned magistrate accepted the evidence of the police officers as being true and convicted the appellant of the offence and fined him the sum of $10,000.00.

9. This appeal is brought on a very narrow ground, that is, that appellant like Yeung Ying Chuen, was merely present in the premises at the time the police entered there and that evidence of such presence was not sufficient to found the conviction. It was also suggested that other inferences could have been drawn by the Magistrate from the evidence of the Appellant's presence in the toilet, for example, he could have been assisting in destroying evidence of bookmaking.

10. There is of course no evidence as to what the contents of the pieces of paper in the toilet bowl were, and while the circumstances, such as delaying the entry of the police into the premises could only raise the suspicion that those pieces of paper were connected with the use to which the premises were put, nevertheless the finding of the 18 sheets on the person of the Appellant which contained what were found by the learned Magistrate to be calculations which a bookmaker might make, does not constitute the Appellant's presence in the premises as mere presence so that the inference of bookmaking could bot have been drawn. While it is well settled that an inference of involvement in bookmaking cannot be drawn of a person who is merely present in premises where bookmaking operations are conducted (Tang Hang Chung and Others ⁽¹⁾ and Reg. v. Chan Yee Shun ⁽²⁾), nevertheless the circumstances attendant upon the finding of the Appellant inside the premises at the time of the raid and of the papers found on him, and of the keys to the premises surrendered by him, do not preclude the inference that he was engaged in bookmaking on the day in question. I think the learned Magistrate was entitled to draw the inference that the Appellant was engaged in bookmaking at the time of the raid and therefore, to convict the Appellant of the offence charged.

11. Accordingly this appeal is dismissed.

Representation:

Mr. Rice for Crown.

Mr. Llewellyn (of Hampton Winter & Glynn) for Appellant.

(1) Criminal Appeal 565/1982

(2) Criminal Appeal 846/1983