The Queen v. The King Capital Club Co Ltd and Others

HCMA001548/1989

IN THE SUPREME COURT OF HONG KONG

COURT OF APPEAL

MAGISTRACY APPEAL NO. 1548 OF 1989

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BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Macdougall, J.A. and Jones, J.

Date of hearing: 9 August 1990

Date of delivery of judgment: 22 August 1990

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JUDGMENT

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Jones, J. delivered the judgment of the court:

1. This is the' determination of two points in an appeal referred to this court for argument at the direction of Duffy J. pursuant to section 118(d) of the Magistrates Ordinance (Cap. 227). The referral arose as a consequence of a division of judicial opinion in the High Court as to whether mens rea is an essential ingredient of the offence of gambling in a gambling establishment contrary to section 6 of the Gambling Ordinance (Cap.148) ("the Ordinance").

2. Briefly the factual background was that on 27 January 1989 a police raid was conducted under an authorisation issued under section 23 of the Ordinance at the premises of the King Capital Club (1981) Company Limited ("the company") in Jaffe Road, Wanchai. Each of 17 of the 20 rooms in the premises was found to contain mahjong tables and tiles. Altogether there were 67 persons either playing mahjong or watching it being played in those rooms.

3. Both the company and one Choy So-ching were convicted of operating a gambling establishment contrary to section 5(a) of the Ordinance. Another defendant, Tsoi Soo-chun, was convicted of assisting in the management of a gambling establishment contrary to section 5(c), and 32 other defendants were convicted of gambling in a gambling establishment contrary to section 6. It is only in respect of the appeals of those 32 defendants that the points which Duffy J. directed to be argued before this court arise.

4. In his Reasons for Verdict the magistrate said:

"the presumptions are prima facie proof of the offence without the necessity of mens rea being independently proved."

5. Since it was contended on behalf of those appellants that this was an erroneous statement of the law the following two questions were formulated for consideration:

6. We understand the first question to ask whether for there to be a finding of guilt in a prosecution under section 6 of the ordinance in which a defendant, having been proved to have been found in a gambling establishment or to have escaped therefrom on the occasion of its being entered under section 23(2)(a), fails to rebut the presumption under section 19(2) that he was gambling therein, it must be proved that he had mens rea in the sense that he knew that it was a gambling establishment.

7. The relevant parts of the Ordinance are as follows: -

8. Section 6 provides : -

"     Any person who gambles in a gambling establishment commits an offence ...."

Gambling establishment is defined by section 2 as follows : -

"' gambling establishment' includes any premises or place, whether or not the public or a section of the public is entitled or permitted to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purposes of or in connexion with unlawful gambling or an unlawful lottery."

Gambling is unlawful save as provided by section 3.

9. Section 19 provides for presumptions. For present purposes its relevant provisions are subsections (1) and (2):

"19.(1) where in any proceedings under this Ordinance it is proved that -

10. Mr Macrae, counsel for the appellants, has drawn to our attention several cases in which conflicting views have been expressed as to whether mens rea is required.

11. In Wong Kar-kui and others v. The Queen [1982] HKLR 488 Bewley J., in referring to the cases of appellants who had been convicted of an offence against section 6, had this to say at 493:

"The remaining appellants were caught by the presumption in s.19 (2). (The judge then set out the subsection).

Thus they mad to prove, on a balance of probabilities, that they were not gambling. The magistrate did not believe the evidence of those appellants who testified. Having regard to what I have said above, I am satisfied that he was justified in concluding that 4th - 18th appellants were gambling."

12. By holding that once the appellants had failed to rebut the presumption that they were gambling the magistrate was entitled to convict them, Bewley J. was plainly of the view that an offence under section 6 was one of strict liability and that therefore it was not necessary for the prosecution to prove that the defendants knew that the premises were a gambling establishment.

13. In The Queen v. Fong Chi-keung and Others [1988] 1 HKLR 126 Wong J. expressed the view that the offence created by section 6 is one that requires mens rea.This, however, was after the prosecution had readily conceded the point - a concession it no longer makes. In The Queen v. Ng Chun-keung and Others (unreported) M.A. 563 of 1988 Barnes J. at page 5 said:

"The evidence of the system used to admit players to instant membership, and of the make-up of the bill for providing the facilities was such that no one managing or assisting in the management by dealing with those matters could have believed he was involved in the running of a licensed mahjong school and that same evidence established that the people within that same category must have been aware that the business was returning the owner of the tiles more than $14.00 per day per set of tiles. The evidence did establish mens rea in respect of all except A4, A6 and A7."

14. Later in The Queen v. Kwong Yiu-hung and Others [1988] 2 HKLR 305, Silke V.-P. in delivering the judgment of the court referred to the decision in Fong Chi-keung and observed obiter at page 308:

"It was conceded, in the course of the appellate hearing, that the presumption under s.19(1) arose. But it was submitted that that section went only so far as to help the prosecution establish a prima facie case that the premises were a gambling establishment.

It did not assist the prosecution to prove the mens rea of a particular defendant, that is that he knew that the premises were a gambling establishment.

This submission is one which I do not quite follow for it seems to ignore the provisions of s.19 (2). The authority upon which counsel there relied - Yuen Chi-ming and Others v. R. Mag App No. 114 of 1981 - related not to s.6 but to ss.5 and 15 - though the issue in Yuen seems to have been 'gambling establishment simpliciter."

15. In The Queen v. Wu Wing-fu and Others (unreported) M.A. 518 of 1989, Hooper J. said at page 8 of his judgment:-

"However, as-strict 'liability is not a matter which has been raised in this appeal I do not propose to say more except that I am satisfied that the presumptions once raised are prima facie proof of the offence under section 6 and that there is no burden on the Crown to establish mens rea independently of the presumption."

16. Finally, in the latest case cited to us, The Queen v Wong Wai-yip and Others, (unreported) M.A. 518 of 1989, Ryan J. after a consideration of several of the above eases had this to say at p. 7 of his judgment :-

"In deciding iwhat is the correct approach to the question of knowledge some help can in my judgment be gained from the provisions of the Dangerous Drugs Ordinance. S.47(3) provides that a person is presumed to be in possession of a dangerous drug if certain primary facts are proved.

S.47(4) provides:-

'Any person who is found or presumed to have had a dangerous drug in his possession shall until the contrary is proved be presumed to know the nature of such drug.'

The Ordinance specifically provides that knowledge is to be presumed.

" There is no equivalent provision in the Gambling Ordinance whereby a person found managing premises presumed to be a gambling establishment under s.19(1) or persons presumed to be gambling in a gambling establishment under s.19(2) are also presumed to have known the premises were a gambling establishment. If the legislature had intended this to be so a provision to that effect could very easily Gave been included in the Ordinance.

I am, therefore, of the view that knowledge is an essential ingredient of charges laid under s.5 and s.6 and that the burden of proving this element remains on the Crown.''

17. With respect, offences under the Dangerous Drugs ordinance are of a very different character than those under the Gambling Ordinance and we are unable to find any assistance in the analogy suggested.

18. Mr. Macrae submitted that the legislature had not intended that an offence against section 6 be one of strict liability and that it should be read to include the word "knowingly". In support of his contention he drew our attention to the well known passage from the judgment of Lord Reid in Sweet v. Parsley [1970] A.C. 132 at 149;

"...it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.

It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the wore 'knowingly,' is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say 'must have been because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.''

19. Illegal gambling is a matter of considerable social concern in Hong Kong, particularly as it has close connections with triads and other criminal elements. Apart from offences under the Gambling Ordinance the courts near serious criminal cases every day in which gambling has been involved. Accordingly, it is necessary for the authorities to keep such activities under strict control. We also take into account the grave difficulty in proving mens rea in a prosecution of this nature. We agree with Mr Reading, who appeared for the Crown, that the legislature deliberately omitted the word "knowing" or "knowingly" from section 6 having regard to the conditions prevailing here.In our view strict liability effectively promotes the objects of the legislation.We accept that this places a heavy burden upon those who wish to gamble but at the same time do not wish to offend the law. We venture to suggest that the burden may be lessened to some extent if the Regulations made under section 28 of the ordinance were amended to include a provision that a licence issued under section 22 be prominently displayed at the entrance of the premises so licensed. The innocent gambler of unblemished character, for whose plight we have been urged to have sympathy, would immediately be put on his guard in the absence of such a display.

20. It follows from our conclusion that section 6 is an offence of strict liability. The prosecution is not required to prove that the defendant knew that the premises were a gambling establishment. We therefore answer the two questions posed by Duffy J. as follows : -

(1)     Yes.

(2)      No.

21. The appeals are remitted to Duffy J. for the hearing to continue.

Representation:

Mr J. Reading, Crown Prosecutor, for Respondent.

Mr A.C. Macrae (Haldane, Midgley & Booth) for Appellants.