The Queen v. Mak Tat-kue and Others

CACC000162/1983

BETWEEN

Coram: Barker, J.A. (sitting as an additional High Court Judge)

Date: - 3 JUN 1983

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JUDGMENT

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Barker, J.A.:

1. The first appellant, MAK Tat-kue, was charged with operating a gambling establishment, contrary to section 5(a) of the Gambling Ordinance Cap. 148. The second and third appellants were charged with assisting in the management of a gambling establishment, contrary to section 5(c) of the same Ordinance. Each was convicted and each now appeals against his conviction.

2. The premises involved were the premises of the Kam Ark Long Recreational Association Ltd. at 557-559 Nathan Road. The first appellant was the tenant of these premises under a five-year tenancy agreement; he was a director of the Association, was an authorised signatory on its bank account, and signed thirty-three cheques on that account. Several of these cheques were drawn in favour of the second and third appellants, both employees of the Association and one in favour of the first appellant. In the early hours of the morning of the 31st August 1982 the police seized numerous items of gambling equipment from the Association Is premises.

3. At the hearing before the Magistrate, all three appellants were represented. Before me, only the first appellant had Counsel.

4. Before me (though not before the Magistrate) the point was taken that the charges against all three appellants were bad for duplicity. Clearly, if valid, this point can be raised even though not adumbrated in the Court below.

5. The charge against the first appellant, after amendment, read 'MAK Tat-kue, you are charged that on 30th and 31st day of August 1982, at 557-559 Nathan Road, 2/F., 'Kam Ark Long Recreational Association Yaumati, Kowloon, in this Colony, you did operate a gambling establishment.' The charges against the second and third appellants were couched in similar terms so far as dates were concerned. The argument for the appellants is that the charges were ex facie bad, since they were each alleged to have been committed on two separate days.

6. In LAU Chi-kwan v. The Queen ⁽¹⁾ the appellant was charged with and convicted of the offence of dangerous driving at Java Road, Shu Kuk Street, Harbour Parade, Kam Hong Street and King's Road. On appeal it was contended on the appellant's behalf that the charge was bad for duplicity. Huggins J. (as he then was) held that the real issue was whether or not the dangerous driving constituted a single activity, that duplicity is a question of form and it, is necessary to look closely to see first what is alleged, and that it is legitimate to charge in a single charge one activity even though that activity may involve more than one act. I respectfully agree, and add that it is legitimate to charge in a single charge one activity even though that activity may involve more than one day.  In the present case the evidence was plain, and uncontroverted. The alleged gambling was being carried on from at least 8 p.m. on the 30th August 1982 until the early hours of the 31st August 1982. This gambling continuing as it did from one day to the next, in my view constituted a single activity, and in consequence none of the charges was bad for duplicity.

7. Secondly, it was contended on behalf of the first appellant that the Magistrate erred in law in holding that the first appellant was 'operating a gambling establishment'. As to this, the Magistrate said as follows:

	"No definition of the word 'Operating' or 'Operate' is provided in the interpretation section of the Ordinance. No more is there such a definition of managing. That Operating' and 'Managing' are not necessarily ejusdem generis is clear; section 5 of the Ordinance, creating the offences, provides for operating or managing and the wore 'or' must be construed disjunctively (Section 3 Interpretation and General Clauses Ordinance, Cap. 1) ....
	The Shorter Oxford Dictionary defines 'operate' of persons as:
	"to control the affairs of an institution etc." and 'to cause person (etc.) to submit to one's control.'
	I concluded that to operate does not necessitate the actual exercising of control over an establishment but encompasses a situation where a person brings influence to bear on the running of an establishment or the carrying on of a certain business, whether or not one leaves the management band control to another and whether one operates it alone or with others."

8. It was submitted that by the use of the word 'influence' the Magistrate was departing from the dictionary definition. I disagree.

9. It was further pointed out that the Magistrate's attention had not been drawn to TANG Hang-chung and others v. The Queen ⁽²⁾. In that case McMullin, V..-P. said at page 8:

"We have considered the possibility that this evidence might be sufficient to establish the affairs of assisting in the operation as distinct from assisting in the management of the establishment. These are unquestionably distinct offences .... In section 5 the 'operator' is put in a category by himself, distinct from the person who manages or otherwise has control. It seems reasonable to sap pose that the legislature viewed the operator as the person in overall control, the person with the final say in how, where and when and even whether the enterprise is to be carried on. He may be remote from the day to day running of the business which can be left in the hands of a manager or other lesser functionary below the manager. If that is the proper way to look at the section, it may be that a person who cannot be said to assist in the management of the business might nevertheless be said to assist in the operation thereof. That s a point we do not have to decide in this cane."

10. And so the dictum was obiter. But, subject to one qualification, the above passage in my judgment constitutes the correct test as to what is meant by section 5(a) of the Ordinance. The qualification is that clearly there can be more than one operator.

11. It was submitted that the test as applied by the Magistrate was at variance with that suggested in the TANG Hang-chung ⁽²⁾ case (op cit). In my view this is not correct. The first appellant elected not to give evidence and he therefore cannot be heard to complain if, on all the evidence before him, the Magistrate drew adverse inferences. There was ample evidence before the Magistrate upon which he could, on the test propounded by him, conclude that the first appellant was operating a gambling establishment. If, which I doubt, there is any difference between the Magistrate's test and that which I have cited from the TANG Hang-chung ⁽²⁾ case, I am satisfied that if the Magistrate had applied the latter test, he would inevitably have arrived at the same conclusion. This ground of appeal accordingly fails.

12. A third ground of appeal was also raised on behalf of the appellant which concerned section 3 and 19 of the. Ordinance.

13. Section 19(1) provides, so far as is relevant:

"Where in any proceedings under this Ordinance it is proved that -

(a)

Gambling equipment was found in any premises or places entered under section 23(2)(c).... it shall be presumed until the contrary is proved that the premises or place are or is a gambling establishment."

14. Such gambling equipment was found in the Association's premises and so the presumption arose.

15. Section 3(2) provides:

"Gaming is lawful if the game is played on a social occasion in private premises and is not promoted or conducted by way of trade or business or for the private gain of any person otherwise than to the extent of a person's winnings as a player of or at the game."

16. It was contended that as two witnesses called on behalf of the first appellant testified that they went to the Association's premises on a social occasion with friends and that the Magistrate accepted during the course of the evidence that it was a social occasion for them, therefore the gaming was lawful and the presumption was rebutted. I reject this contention. These two witnesses may have gone on a social occasion, but their purpose was to gamble for money, as was the purpose of every other customer save for the police officers who went only to reconnoitre. There was abundant evidence upon which the Magistrate could and did find that these premises were, to the first appellant's knowledge, a gambling establishment. This ground also fails.

17. The appeals of the second and third appellants can each be dealt with shortly. The case against each rested on written confession statements which were put in without objection at the trial and which the Magistrate accepted as being true as he was entitled to do. Once this course was taken, a conviction against each was inevitable; since neither chose to give evidence. Before me on appeal, they sought in effect to give exculpatory evidence, but they had their chance to do this in the lower court and they failed to take it. The Magistrate's reasons for verdict in each of these cases cannot be faulted.

18. Accordingly 2 dismissed the appeals of all three appellants.

(1)     (1975) H.K.L.R. 445

(2)     Cr. App. 565 of 1982

Representation:

Cheng Huan, Esq. instructed by John Ku & Co. for the first appellant.

The second and third appellants in person.

Peter Duncan, Senior Asst. Crown Prosecutor, for Crown/Respondent.