Yuen Chi-ming and Others v. The Queen
Read the full judgment text of CACC 214/1981 on BabelCite. This Court of Appeal judgment.
1. The four appellants were among 47 persons, found by the police in a flat at the 17th floor, Block D Sky Scraper Mansion, Cloud View Road, Hong Kong on the 22nd November, 1980, while executing a gambling authorisation pursuant to section 23 of the Gambling Ordinance Cap. 148 (hereafter referred to as "the Ordinance"), and charged with various offences contrary to the Ordinance.
Cited by 1 case
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CACC000214/1981 Assisting in the Management of a gambling establishment contrary to s. 5 of the Gambling Ordinance, Cap. 148 - As owner or the occupier permitting use, contrary to s. 15 - Significance of the presumption in s. 19 - Expert evidence.
Coram: Rhind, J. Date of Judgment: 29th June, 1981 ----------------- JUDGMENT ----------------- INTRODUCTION 1. The four appellants were among 47 persons, found by the police in a flat at the 17th floor, Block D Sky Scraper Mansion, Cloud View Road, Hong Kong on the 22nd November, 1980, while executing a gambling authorisation pursuant to section 23 of the Gambling Ordinance Cap. 148 (hereafter referred to as "the Ordinance"), and charged with various offences contrary to the Ordinance. 2. D1 and D3 appeal against their conviction and sentence on a charge of assisting in the management of a gambling establishment contrary to section 5(c) of the Ordinance. Each of them was fined $10,000 on that charge. D2, who was convicted with them on that same charge and fined the same amount, has now withdrawn his appeal. D3 also appeals against his conviction and a fine $1,000 on a charge, contrary to section 27 of the Ordinance, of obstructing a police officer in the exercise of powers conferred on him by the Ordinance. D4 appeals both against his conviction and fine of $50,000 on a charge that as the occupier he knowingly permitted premises to be used as a gambling establishment contrary to section 15(1)(a) of the Ordinance. D4A appeals against conviction only on a charge that as owner she knowingly permitted premises to be used as a gambling establishment contrary to section 15(1)(a) of the Ordinance. 3. At the trial, all of the appellants were represented by counsel. All of the charges against the appellants and against D2 were tried together at the same time. The other forty-three persons found on the premises were charged simply with gambling in a gambling establishment contrary to section 6 of the Ordinance. After the trial of the appellants and D2 had been completed, those other forty-three persons all pleaded guilty to gambling in a gambling establishment and each of them was fined $750. None of those forty-three persons has lodged any appeal. THE FACTS 4. The evidence adduced before the learned magistrate established the following facts. 5. As at the 22nd November, 1980, D4A was the owner of a three bedroom flat of some 2,000 sq. ft. on the 17th floor of Block D Sky Scraper. Mansion, Cloud View Road, Hong Kong. She lived on those premises with her husband who was D4, and their three young children. 6. Acting on a tip-off, two police officers went to the floor where D4A's flat is located at about 3 a.m. on the 22nd November, 1980. Whilst standing outside the front door and the rear door of D4A premises, those police officers heard a loud noise of voices and the slamming of tiles on a table from within the premises. 7. As the result of information which those two officers passed on to their superiors, a gambling authorisation was issued and a police party organised to raid the premises for suspected illegal gambling. 8. The police party which comprised three Europeans and several Chinese police officers, all in civilian clothes, arrived outside D4A's premises at about 4:30 a.m. on the 22nd November. The noise of voices and the clicking of tiles from within the premises was so loud that it could be heard by the police party as soon as it emerged from the lift, which was located about 6 feet away from the front door of D4A's premises. 9. When the police party knocked on the front door, it was opened by D3 who came face to face with police sergeant 12659 (PW6) who showed his warrant card and announced that they were police. D3's reaction to that was to slam the door in the faces of the police without saying anything. 10. Nothing happened for the next five minutes or so except that the noise within the flat abated. Then D1 came and opened the door, asserting, "It's only gambling, not murder or robbery". He then proceeded to open the outer iron grille so that the whole police party was able to gain entry into the flat. 11. When the police first went into the flat, they found a crowd of people milling around as if trying to find a way out. The police calmed those people down and got them to sit down. D1 took the initiative in assisting the police by arranging where people should sit. 12. A large make-shift table was found in the main living area of the flat. On that table were gambling chips bearing pieces of paper with special characters written on them. The face value of those chips was $380,379. Also on the table was $5,420 in cash. The gambling paraphernalia collected by the police on those premises included six sets of large dice, three sets of large pai kau tiles and also playing cards. 13. D3 was the person who assisted the police to locate the pai kau tiles when the police asked where the tiles were. 14. D1 asked the police if it would be all right if he collected outstanding chips for his accounting purposes and he was allowed to do so. D3 then proceeded to collect chips from the persons present in the room while D1 made a record of the chips thus collected. While the chips were being collected, D1 announced "hand in your chips or you won't collect you money later". 15. Among the persons present in the main living area of the flat when the police first went in there was D4. Unnoticed by the police, he managed to slip away into one of the bedrooms. In that bedroom, his wife (D4A), their three children, and his sister-in-law had been sleeping at the time when the police made their raid. Assisted by D4A, D4 hid himself under a pile of clothing in the wardrobe in D4A's bedroom. 16. When the police came to search that bedroom, they discovered D4 in the wardrobe. Although, as I have already mentioned, D4 lived on those premises with his wife D4A, he did not identify himself to the police as the man of the house. On the contrary, D4 denied living on the premises. 17. D4 was not alone in trying to hide himself from the police. One of the women who was subsequently charged with simple gambling in a gambling house also tried to hide herself in a wardrobe in another bedroom. 18. One final fact which can be mentioned is that substantial quantities of gambling chips and tiles were also found in a cupboard in the bedroom where D4A had spent that night. GAMBLING ESTABLISHMENT 19. A common element of the charges faced by D1 and D3 of assisting in the management contrary to s. 5(c), and by D4 and D4A of being the occupier and owner, respectively, permitting the use of premises contrary to s. 15(1)(a), is that they must all have been committed in relation to "a gambling establishment". 20. "Gambling establishment" is defined by section 2 of the Ordinance as follows:
21. Next it is necessary to look at section 3 of the Ordinance which in effect declares that all gambling is unlawful unless it happens to be one of the specifically permitted varieties. I will set out s. 3(1) which is as follows:
22. Sub-section (2) sets out the only type of permitted gambling which could conceivably be relevant for the purposes of the present case, its content being as follows:
23. Also of relevance in the context of the meaning of "gambling establishment" is the definition of "gambling" in section 2 of the Ordinance which states:
24. Also the definition of "game" and "gaming" in s. 2 of the Ordinance need to be looked at. Those definitions are as follows:
25. Overwhelming proof of the existence of a gambling establishment for the purposes of sections 5 and 15 of the Ordinance came from three sources. (i) Common-sense inferences drawn from the primary facts established 26. From the material set out above under the section headed "THE FACTS", any sensible jury, properly directed, would almost inevitably conclude that the premises raided in this case were a "gambling establishment", without any need for recourse to the presumptions and the expert evidence with which I am about to deal in a moment. 27. The reactions to that raid by the appellants and the others present on the premises are, on a common-sense basis, only explicable on the basis that the premises were being used as a "gambling establishment". 28. There was some testimony from D4A, who was the only one of the appellants who saw fit to give evidence at the trial, that the persons present on the premises were D4's friends whom he had entertained earlier that evening at a feast in a restaurant. Because the learned magistrate accepted that D4 had in fact entertained at a feast earlier that evening as he claimed, it was urged on the appellants' behalf that there was a reasonable possibility that the gambling going on in D4's flat was of the type permitted by section 3 subsection (2) of the Ordinance on a "social occasion in private premises". However, the whole of subsection (2) has to be considered, and even if the game was being played on a social occasion in private premises, it was, nonetheless, unlawful if it was "promoted or conducted by way of trade or business or for the private gain of any person". To my mind (and also to the learned magistrate's mind), the totality of the evidence pointed cogently to the gambling being of the unlawful type. (ii) Presumptions 29. Section 19 subsection (1) of the Ordinance is in the following terms:
The opening words of that subsection show in unmistakable terms that it applies to "any proceedings under this Ordinance". Hence it must apply to proceedings under both sections 5 and 15 of the Ordinance. If, as the appellants' counsel contends, A.G. v. CHAN Man-kong(1) leads to a contrary conclusion, I can only say that I regard it as wrongly decided. With all due respect, I must say I find the argument in that case very difficult to follow. I have preferred the approach which found favour in LEUNG Shui v R.(2) and LAI Lai-yuk v R.(3). 30. On the facts of the present case, this presumption came into play because the police party was obstructed and delayed in getting into the premises, and also because gambling equipment was found on the premises which had been entered pursuant to an authorisation under section 23(2)(a) of the Ordinance. The learned magistrate's finding that the presumption had not been rebutted cannot be faulted. 31. For the purpose of proving a charge contrary to either section 5 or section 15 of the Ordinance, this presumption is, however, of limited utility. Through the presumption, the essential ingredient of the premises in fact being "a gambling establishment" can be established; the presumption does nothing, though, to prove that a defendant knew that the premises were "a gambling establishment". That the defendant must have known that the premises were "a gambling establishment" is not open to dispute, and it is up to the prosecution to prove that he had such knowledge. How the prosecution proves knowledge is a trite topic in the criminal law. (iii) Expert Evidence 32. Relying on section 20(3), the prosecution called a police sergeant (PW7), who was a veteran of several gambling raids, to give evidence on the significance of what was found in the premises. 33. Section 20 subsection (3) is as follows:
In his evidence, PW7 described various indicia which led him to the opinion that the premises were an illegal gambling establishment. In particular, he referred to the chips bearing pieces of paper with special characters written on them. He explained that it was the practice of the operators of illegal gambling establishments to mark their chips in this way so as to be able to recognize them. Large dice and large tiles such as those found in the present case were also a characteristic of illegal gambling establishments, according to PW7. He further explained that in an illegal gambling establishment there were normally several sets of pai kau tiles, as happened here. That was in case any of the players complained that the tiles were marked, for in such an eventuality, the tiles could then be changed. 34. At an early stage in his evidence, PW7 explained his understanding of what constituted an illegal gambling establishment when he said, "In an illegal gambling establishment someone gets a percentage". To my mind, that explanation of his captures what is the essence of an illegal gambling establishment, and if that is the type of establishment he was describing, his evidence was obviously fully germane to the present proceedings. 35. At several stages in his evidence, PW7 expressed the opinion that, based on the exhibits, the premises in the present case were an illegal gambling establishment. Defence counsel at the trial, who was different from the counsel appearing on the appeal, did not take any objection to PW7 expressing those opinions. Now, in this appeal, the appellants' counsel contends that PW7 was usurping the court's function by expressing an opinion on what was an illegal gambling establishment. According to the appellants' counsel, whether the premises were an illegal gambling establishment was the ultimate question which the court had to determine. 36. For my part, I see nothing wrong in PW7 having expressed an opinion as to whether the premises were an illegal gambling establishment. It is clear that he knew basically what an illegal gambling establishment is - a place for gambling where someone gets a percentage - and it saved a great deal of circumlocution if he expressed himself in the form of a conclusion, in the way he did. 37. If defence counsel at the trial had objected to PW7 going straight to the point by expressing the opinion that this was an illegal gambling establishment, the same result could have been reached by asking PW7 a series of questions which brought out answers to the effect that, in his opinion, there had been gambling on a non-social occasion or gambling which was promoted or conducted by way of trade or business or for the private gain of someone. That would in effect, have meant that, in his opinion, the premises were an illegal gambling establishment, but a lot more time would have been unnecessarily wasted in bringing the point out. 38. By expressing an opinion as to whether this was a gambling establishment, PW7 in no way usurped the function of the court. He was merely expressing an opinion, which the court was fully entitled to reject or accept, as it thought fit. It was up to the court what weight it decided to attach to his opinion. 39. Moreover, his opinion was not expressed on the ultimate issue which the court had to determine. The ultimate issue was not whether the premises were an unlawful gambling establishment, but whether, for example, D1 and D3 were assisting in the management of an unlawful gambling establishment. At the most, PW7 merely expressed an opinion as to one element in the charge. The whole point in calling experts is allow them to express opinions. 40. Singly and cumulatively, the ordinary evidence, the presumptions, and the expert evidence presented unmistakable proof of a gambling establishment. THE KNOWLEDGE OF THE APPELLANTS 41. To prove the charges against the appellants, the prosecution were required to establish that they knew the premises were a gambling establishment. 42. I do not intend to waste words on whether D1, D3 and D4 knew that the premises were a gambling establishment. Suffice it to say that the evidence against them was utterly overwhelming for they had all obviously been participating in that night's activities up to the hilt. 43. D4A's position is somewhat different, however. She was in bed when the police conducted their raid, and obviously had not herself taken part in that night's gambling activity. Had she known that night that illegal gambling activity was going on in her flat? The learned magistrate was satisfied that she knew and I see no reason to doubt the conclusion that he reached. Her knowledge was a matter of inference from all the evidence in the case. Did D4A as owner knowingly permit her premises to be used as a gambling establishment? 44. Having just dealt with D4A's knowledge as to whether the premises were being used as a gambling establishment that night, it will be convenient to deal with the charge against her first of all. 45. That she was owner of the premises was admitted. That she knew that they were being used that night as a gambling establishment was found by the learned magistrate. Did she permit them to be so used? The learned magistrate found she did, and I do not see what other conclusion he could reasonably have reached on the evidence before him. 46. A technical point taken on her behalf in this appeal was that, although she was charged with "permitting" premises to be used, the particulars referred to her having "suffered" the premises to be used. I will set out section 15(1)(a) under which she was charged
Counsel on the appeal seeks to contend that the charge was bad for duplicity. I cannot agree with him. D4A knew full well the charge she had to face, and has been in no way misled or embarrassed by the particulars of the charge. 47. Despite a suggestion to the contrary in LAI Lai-yuk v R.(3), for my part I cannot see any difference between the meaning of the words "permitting" and "suffering". See Smith and Hogan's Criminal Law, 4th Edition at pages 105 and 106. Did D4, as the occupier, permit the premises to be used as a gambling establishment? 48. Like his wife, D4 faced a charge under section 15(1)(a), so as a matter of convenience, I will deal with his case next. 49. On behalf of D4, I was referred to twenty-seven different definitions of the word "occupier" from Stroud's Judicial Dictionary, and it was urged upon me that he fell outside all of those definitions. 50. None of those definitions threw any light on the meaning of the words "the occupier" in the ordinance with which the present case is concerned. As has been pointed out in R. v Tao(4), the word "occupier" is interpreted in legislation in the light of its context and the mischief at which the legislation is directed. 51. Section 15(1)(a) of the Ordinance is directed towards the prevention of premises being used as a gambling establishment. It concerns itself with those who have the power to exclude others from being present on premises. As the man of the house, D4, to my mind, falls within the category of "the occupier" in the sense of being the person who had the power to exclude all of the gamblers from his home that evening. 52. Without resort to the Interpretation and General Clauses Ordinance Cap. 1, I would have found D4 to be "the occupier" in the sense I have just described. Cap. 1 provides another route which reaches the same result. There the word "occupy" is defined in section 2 as
By section 5, Cap. 1, it is provided
D4 falls fully and squarely within the definition of the word "occupy" and its cognate word, "occupier" in Cap. 1. 53. Of course, Cap. 1 only apply where no contrary intention appears, but I see no reason whatsoever to read a contrary intention into section 15(1)(a) of the Gambling Ordinance. Did D1 and D3 assist in the management of a gambling establishment? 54. Whether either of that pair assisted in the management is to my mind a question of fact and degree. The propriety of charging those who assist in the running of illegal businesses is commented upon by Glanville Williams in his Criminal Law, The General Part (Second Edition) at pp.356 to 358. He says:
55. In so far as D1 was concerned, the facts against him show clearly that he was assisting in the management of the gambling establishment. His actions give rise to the impression that he was the one in fact in charge of the gambling activities that night. See Gorman v Standen(5) and Abbott v Smith(6). 56. D3 was more of a borderline case. A safer charge against him might have been assisting in the "operation" of a gambling establishment, as it could be argued that his activities were somewhat remote from "management". See CHAN Man & others v R.(7). On the other hand, the role he played was no more minimal than that played by the accused in LEUNG Shui v The Queen(8) who were held to have been rightly convicted of assisting in the operation and management of a gambling establishment. 57. I consider there was sufficient evidence to establish that D3 was assisting in the management. D3's obstructing of a police officer 58. For D3 it is contended that the learned magistrate failed to advert to the fact that the offence requires mens rea. Although somewhat unsurprisingly, the learned magistrate did not in fact use the actual words "mens rea", it is abundantly clear from his judgment that he was fully aware that D3 could only commit this offence knowingly. The learned magistrate found that D3 knew that it was a police party on which he was slamming the door. That such conduct can amount to obstruction is made clear in YUEN Tai-bu v R.(9). Other grounds of appeal 59. Various items of hearsay which came out in evidence during the course of the trial have been particularized by the appellants' counsel for the purpose of contending that they make the convictions in the present case unsafe and unsatisfactory. Defence counsel at the trial did not bother to take a single objection to any of those hearsay items. I cannot imagine that the type of hearsay of which the appellants' counsel now complains had the slightest effect on the mind of a professional magistrate. Sentences 60. At the time of sentencing the appellants it was known to the learned magistrate that whereas D4A had a clear record, D4 had three previous convictions including one gambling offence, D3 had ten previous convictions including six for gambling offences and D1 had twenty-two previous convictions, none of which was for gambling. 61. It was contended on behalf of the appellants that heavy fines should not have been imposed without enquiring into their ability to pay. At their trial, none of the appellants said anything by way of mitigation, so that there was no reason for the magistrate to suppose that the appellants would be unable to pay "tariff" fines appropriate to the offences they had committed. That heavy fines are appropriate for offences contrary to section 5 or section 15 of the ordinance can be discerned from the fact that the maximum fine under either of those sections is now $500,000. Even before me, nothing was said about the appellants' inability to pay those fines. I see no reason to interfere with any of the sentences. Conclusion 62. All of the appeals against both conviction and sentence are dismissed.
Representation: A.J.J. Sanguinetti, instructed by (Poon & Sum) for the appellants. G.J. Plowman, Senior Crown Counsel for the respondent. (1) [1967] H.K.L.R. 225 (2) Criminal Appeal 927 of 1977 (3) Criminal Appeal 668 of 1979 (4) [1976] Criminal Law Review 516 (5) [1963] 3 All E 627 (6) [1965] 2 Q.B. 662 (7) [1976] H.K.L.R. 284 (8) Criminal Appeal 927 of 1977 (9) 1978 H.K.L.R. 128 |
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