Cheng Siu King v. HKSAR

HCMA000843/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 843/97

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Coram : The Hon. Mr. Justice Wong in Court

Date of Hearing : 14 December 1997

Date of Handing down of Judgment : 29 December 1997

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of managing a gambling establishment contrary to s.5(b) of the Gambling Ordinance, Cap.148. She was fined $5,000. She appeals against her conviction only. Two other defendants appeared at the same trial on a charge of operating a gambling establishment contrary to s.5(a) of the same Ordinance. They were acquitted because the magistrate ruled that their cautioned statements were inadmissible.

2. The facts were succinctly summarised by the magistrate in his statement of findings and they are these:-

" The Crown (as it then was) case was that a police party acting as agents went to the restaurant shortly before 10 p.m. on the 26 April 1996. A woman came over to them when they were standing near the cashier and asked if they wanted to play mah-jong. When one of them said yes they were taken to one of the private rooms in the restaurant where there was a mah-jong table and set. They played the game until after midnight. They had no food. The bill came to $112. The cashier explained there was an hourly charge although it was clear that food was available for which there would be an extra charge.

After the agents withdrew there was a police raid on the restaurant in which the agents were involved. A number of people were observed to be playing mah-jong in different places. The evidence of exhibits concentrated on what was found in Room 114, the room inside the restaurant which D1 and D2 were alleged to be operating as a gambling establishment.

There were then uncautioned conversations with a number of people including the appellant and the other defendants.

In the course of her conversation with the police the appellant was alleged to have said words to the effect that she was the manageress of the restaurant but was off duty at the time. The evidence suggested she herself was playing mah-jong in another room when the police came in."

3. There are two grounds in the Perfected Grounds of Appeal and the first being:-

"The learned Magistrate erred in the following respects namely notwithstanding he accepted that the appellant was off duty at the material time and despite the fact that she was relaxing rather than working he wrongly found that she was managing the establishment."

4. The magistrate made these findings at p.3 of his statement of findings or p.314 of the transcript:-

(1) that the police agents had used a room in the premises to play mah-jong and not to have a meal or significant refreshment and service;

(2) that when the police party arrived other rooms were being used in the premises were being used to play mah-jong including the rooms where the various defendants were;

(3) on that basis and on the basis of some exhibits that were produced mah-jong tiles and chips were found in the premises;

(4) that the police party entered with a gambling authorization signed by an officer of appropriate seniority;

(5) that the appellant had volunteered that she was the manageress but off duty;

(6) that she made certain cautioned statements which were admissible. P9 was a straightforward denial that she operated a gambling establishment. P10 and P11 are interviews in which she deals with the operation of the restaurant and how people come to play mah-jong. It was clear from those later statements that the policy of the restaurant under her management was to allow people in simply to play mah-jong. It was clear also that there were charges for the space occupied for that purpose also with the space would come such things as tea, towels and the changing of ash trays. This was clearly the system that operated under her management."

5. The magistrate went on to say at the next page:-

"Although I am prepared to accept that the appellant was off-duty at the material time, .......she was the manager. She well knew the system that operated and was responsible for it. She knew what was happening that very night, and , despite the fact that she was relaxing rather than working, she cannot be said not to have managed the establishment on that particular night."

6. He drew the anology of the manager of a vice establishment and said:-

"A manager of a vice establishment might be found enjoying the favours of one of the assets of that establishment. If he is responsible for her and others being there as prostitutes, if he has set up the system of doormen and charges, he remains the manager of the vice establishment on the occasion he is merely sampling its wares."

On the very facts and evidence of this case, it is open to the magistrate to reach the conclusion that he did. It is not just a case that the appellant was the manageress and off duty, but also she was present in the establishment and was aware of what was going on. She would be no doubt in a position to give orders and directions should the occasion arise. This ground therefore fails.

7. The other ground of appeal is :

"The magistrate wrongly found the presumptions under s.23 of the Gambling Ordinance had been activated notwithstanding that the prosecution, having been put to strict proof, failed to adduce any evidence upon which the issuing superintendent had based his suspicion that the restaurant was a gambling establishment as required by s.23(1) Gambling Ordinance, Cap.148 prior to issuing the gambling authorization."

8. Section 23(1) provides:-

"A police officer of or above the rank of superintendent may, if he reasonably suspects that any premises or place are or is a gambling establishment, authorize in writing any police officer to enter and search the premises or place."

9. Mr. Matthews, who appears for the appellant here and before the magistrate, makes these submissions:-

"Although the issue of the Gambling Authorization is frequently not in dispute, when the prosecution are put to proof then the issue of same must be properly proved and it is submitted that this may include the superintendent giving evidence that he had a reasonable suspicion and even the basis of that suspicion if necessary. The only evidence relating to the issue of the Gambling Authorization appears at p.49 O-P44F. It is submitted that this does not even approach sufficient evidence on which it can be presumed that the superintendent had a reasonable suspicion. There was not even evidence that PW1 provided the case file for the superintendent to read or that he briefed the superintendent."

10. In the light of these submissions, it is necessary to look at the transcript about this matter. Mr. Matthews first mentioned it at p.18 and this is what he said:-

"There is one further difficulty and that is the other chief inspector flies out of Hong Kong, I think at 2:30 this afternoon. His is involved in merely the obtaining of the gambling authorization from the superintendent and I have indicated to my learned friend appearing for the Crown that I'm putting the Crown just strict proof in such matters. However, if the inspector has to get his flight, and I don't want to prevent him from getting it, purely for the purpose of obtaining the gambling authorization only I would be prepared to admit in terms that he did obtain from the superintendent the gambling authorization."

11. At that stage, Mr. Matthews seemed to be quite prepared and content to have the gambling authorization produced without anything further ado in order to accommodate the chief inspector to catch his flight. But the chief inspector was called to give evidence before he went off on holiday. He produced the gambling authorization and his evidence on this issue is at p.43 from O to T:-

"A. I, on that particular day, was instructed to plan a gambling raid at the Mascot City Restaurant which was in the Yan Ching Circuit in Tuen Mun. During the afternoon of that day I obtained a gambling authorization and I also arranged the manpower for the evening which included the Special Duty Squad of Tuen Mun Police District as well as the Task Force of Tuen Mun Division.

Q. Yes, Mr. Chan, please take a look at this form, thank you. Is that the gambling authorization that you have just referred to?

A. Yes. This is the gambling authorization obtained from the Assistant District Commander Administration, Mr. Carver- Trotter. The date was there and also the address."

Over the page at D and E:-

" Court: Yes, well, you've obviously seen this, Mr. Matthews.

Mr. Matthews: I have. I've got a copy of it, thank you, Sir."

12. After the examination in chief of this witness PW1, Mr. Matthews cross-examined him. But it is surprising that he did not ask the witness a single question about the gambling authorization bearing in mind the importance he said that he attached to it. He did not raise any objection to its production nor did he at any stage indicate either to the court or to the prosecutor that he would require the superintendent who signed the authorization to give evidence or to be made available for cross-examination. It is only common sense that a superintendent who signs the authorization would have to act on the information supplied to him by his subordinates. It is inconceivable that a superintendent would go around to restaurants or other premises to find out whether unlawful gambling was taking place. It is most unlikely that a superintendent would sign a gambling authorization without having first satisfied himself that reasonable ground for suspicion existed. Search warrant is a good example given by the magistrate. Does this mean that the magistrate has to be called to give evidence that he was satisfied on information before he did so. The practice of the courts has always been to accept evidence of this kind as a matter of formality and the defence accepts it without any question unless for good reasons and upon specific grounds.

13. Moreover, s.23(1) has to be understood in its proper context. It was decided in R. v. Kwok Mei Sheung & Others [1989] 1HKC that the authorization only goes to activate the presumptions of regularity that the authorization was properly issued in accordance with the section by an officer not below the rank of superintendent. The presumption of regularity does not go to establish facts central to the offences being charged. Instead, it goes to the activation of the presumptions under s.19(1)(c), which if applied go to the central facts necessary to prove the offences.

14. In any event, I am satisfied that the evidence adduced by the prosecution at the trial is sufficient to establish that the gambling authorization was properly issued in terms of s.23(1). There is absolutely no merit in this ground which must be rejected. The appeal is accordingly dismissed.

Representation:

Mr. Eddie Sean, SGC & Mr. Jonathan T.H. Man, G.C. for D.P.P.

Mr. Jerome Matthews instructed by M/s Kitty So & Tong for the Appellant.