The Queen v. Woo Chik-wa and Others

HCMA000432/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 432 OF 1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 7th - 8th September, 1988

Date of Delivery of Judgment: 8th September 1988

Date of Handing Down of Written Reasons: 21st September 1988

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J U D G M E N T

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The 23 Appellants were D1 to D8, D13 to D25, D27 and D28 when they were convicted after trial in the Magistrates Court on charges brought under the Gambling Ordinance ('the Ordinance'). All charges related to a gambling establishment on 6th floor, Washington Plaza, 230 Wanchai Road, Wanchai being premises under the control of a society registered under the Societies Ordinance as 'The Modern Literature and Art Association'. The charges alleged that contrary to section 5 of the Ordinance Dl operated, D2 managed and D3 & D4 assisted in the management of that gambling establishment and that the remaining Defendants gambled there contrary to section 6 .

1. Although the record of evidence at the trial covers more than 230 typed foolscap pages the crux of the case can be quite succinctly stated.

2. On 5 November 1987 four police officers went to the premises to play mahjong. There they met D2 who asked whether they 'wanted to play tiles'. One of the officers told her that they did whereupon she asked if they were members and received the reply that they were not. She then took them to a room about 80 square feet in area and bearing on the entrance door the number 29. D3 then entered the room with four glasses of tea and asked one of the officers to hand her his identity card so that she could supply him with a membership card. He gave her his identity card and she left the room. The room contained a mahjong table, four chairs, three teapoys, mahjong tiles and chips and a telephone. The officers played mahjong in the room from about 10 pm to 2 am. During the course of play D3 returned the officer's identity card and handed him a card which stated that he was a member of the Modern Literature and Art Association. She also asked him to sign an application for membership form which he did. She then took that form away. She returned later on a couple of occasions to serve tea. When the officers indicated that they wanted to leave she presented them with a bill for $88.00 made up, according to the entries on the bill, of a 'sponsorship fee' of $20.00, 'soda fountain 4' of $60.00 and a 10% service charge. On being queried about the items she said that although the cost of their teas was only $24.00 the rental of the tiles for four hours was $56.00. She added that the rental could not be described as rental on the bill. The officers paid the bill and left

3. At about 8.40 pm on 13 November four more police officers went to the premises. They were met by D3 who asked : "Do you have membership card?" One of the officers said, "No", whereupon D3 said she would issue a membership card, asked for his identity card and told the party to go to room 28 to play mahjong. The officer handed over his identity card and the four went to room 28. It was of the same size as room 29 and had no furniture other than that which the previous party had found in room 29. D3 later returned with four cups of tea and explained that the minimum charge was $80.00, based on a four hour play period. The cost of four drinks was included in the $80.00 but she said that the $30.00 was payable whether they ordered a drink or not and whether they played for four hours or less. Later she gave the officer who produced the identity card an application for membership form which he signed and she eventually handed him a card stating that he was a member of the Modern Literature and Art Assoication. At 12.30 am one of the officers asked D3 for the bill. A few minutes later D4 entered the room and presented the bill. When she was asked why it amounted to $88.00 she gave an explanation similar to that given by D3 to the other party. She also said that the rental charge could not be shown on the bill. The bill was paid almost contemporaneously with the arrival of other police officers entering pursuant to s. 22 of the Ordinance.

4. The premises comprised 14 rooms numbered from 21 to 34 all with mahjong playing facilities similar to those the officers had earlier found in rooms 28 and 29. There was also a sitting room, a small bar and a cashier's office. In each of rooms 22, 23, 24, 29, 32 and 34 the police found a party of four using "gambling equipment". There was no evidence of any activity on the premises other than mahjong playing.

5. By s. 3(1) of the Ordinance all gambling is unlawful unless it is done in accordance with the provisions of one or other of sub-sections' 2 to 8. If mahjong tiles are found on premises entered under an authority issued pursuant to s. 22 of the Ordinance then persons found on the premises are presumed, until the contrary is proved, to have been gambling in a gambling establishment (s.19). By definition premises become a gambling establishment when they are used for unlawful gaming. Proof of the contrary therefore requires credible evidence that the person was not playing mahjong at all, was playing but not with a view to winning money or other property, or was gambling lawfully in accordance with one or other of the subsections. As was pointed out by Rhind J. in R. v. MAK Tat-kue (Crim. App. 162/3), a person proved to have been operating, managing, assisting in the management of, or gambling in premises presumed to be a gambling establishment is not shown to be guilty of any offence unless there is also proof that he knew the premises were being used for unlawful gambling.

6. The learned magistrate found that the evidence raised the presumption, that it was not rebutted by any of the Appellants, that the relationship to the premises alleged in respect of each Appellant was established and that each knew that the premises were being used for unlawful gambling.

7. In the first five grounds of appeal Mr. Hampton submits that the evidence of conversations between the Prosecution witnesses and 2nd and 3rd Appellants should not have been admitted.

8. A fact in issue in this case in respect of all charges was the use which was being made of the premises. Evidence showing how people did use them and how people on the premises apparently representing the establishment expected the premises to be used was logically probative of that issue. That evidence, together with the evidence of the layout of the premises and the finding of a considerable quantity of mahjong equipment, showed that the premises were being used to provide mahjong facilities for reward If the owner of mahjong tiles charges a hiring fee for the use of his tiles then any gaming with those tiles is promoted or conducted by way of business. (R, v. LEUNG Shui & others, [1977] HKLR 544). Gaming in those circumstances can be lawful only if it is done in premises licensed under s 22 or the business of providing mahjong facilities provides the owner with a daily return of $14.00 or less for each set of tiles (s, 3(4)(d) & Reg. 7 of the Gambling Regulations). The evidence concerning instant membership tended to negative any suggestion that the premises were licensed premises and the method of presenting the bill and explaining the charges tended to prove that the owner of the tiles was receiving considerably more than $14.00 per day per set of tiles. The evidence was not admissible for the purpose of showing any link between any Appellant and the premises other than the second and third Appellants but it was admissible for the purpose of determining whether or not the premises were a gambling establishment. The evidence was not used by the learned magistrate for any purpose other than determining the issue to which it was relevant I therefore find no merit in any of the grounds attacking the decision to admit the evidence.

9. By grounds 5 and 7 the Appellants contend that the learned magistrate reversed the onus of proof by casting on them the onus of "negativing knowledge.

10. The learned magistrate clearly directed herself properly in the early part of her Statement of Findings when, after dealing with the effect of the presumption, she went on to say this

"Clearly knowledge was a necessary element to be established; unless the Appellants could be shown to have knowledge of what was taking place on the premises no offences could be established."

11. She then went on to deal with the evidence pointing to such knowledge in respect of each of the first four Appellants. Concluding from the evidence relevant to each that the knowledge element had been positively proved to the required standard she found the offence-proved in respect of each. The complaint that the onus of proof as to knowledge was reversed in respect of any of them has no merit at all.

12. As regards those charged with gambling in a gambling establishment, she directed herself as follows before dealing with evidence relating to each ;

"In order to convict them I had to be satisfied that those Appellants knew that the Modern Literature and Arts Association was a gambling establishment."

13. She then went on to show from the evidence of the "system" used to provide mahjong facilities on the premises that no one going there to play mahjong could possibly believe that he was being provided with such facilities in a properly licensed mahjong school. But she then went on to say this

"Having considered all the evidence and taken notice of what the gamblers said on their own behalf I was not satisfied that they had rebutted the presumption that they knew the Modern Literature and Arts Association was a gambling establishment either for themselves or for those who elected not to give evidence.

Nor had the presumption of their knowledge been rebutted by the Crown evidence. Accordingly I found all those charged with gambling guilty as charged".

14. Mr. Harris, for the Respondent, concedes that what the learned magistrate there said "taken literally is an incorrect statement of the law". He submits that it is not to be taken, litetrally in view of the correct directions she gave herself earlier.

15. There can be no doubt that had such a direction been given in a jury trial it would vitiate those convictions. In a jury trial; however, it is rarely possible to say that the jury must have convicted if the proper direction had been given. In this case we have the learned magistrate's thought processes available. They show that she accepted evidence establishing that none of the "gamblers" could have believed that his game was lawful by virtue of the provisions of s. 3(6). That means that, in this case, a gambler could only have been unaware that the premises were a gambling establishment if he lacked knowledge that the owner of the tiles was receiving more than $14.00 per day in providing him with the facilities to play. The learned magistrate clearly accepted evidence showing that "the system of the house" ensured, to the knowledge of the players, that the return was much greater than that. Consequently, had the learned magistrate given the proper direction she must have come to the conclusion that the evidence positively established beyond doubt that all the players had knowledge that they were gambling in a gambling establishment.

16. Ground 8 alleges a failure to consider (a) the case of Appellants 15 to 20 individually, (b) the "defences" available to them under s 3(2), 3(3) and 3(4)(a) (i), and (c) whether each had rebutted the presumption that he was gambling in a gambling establishment

17. The learned magistrate did not set out seriatim the case as it affected each Appellant I do not consider that to have been necessary -in fact, it would have been mere "padding" to have done so This was a case where it was possible, in relation to those who did not give evidence, to deal globally with the evidence because there were no individual differences in relation to those who gave evidence the Statement of Findings shows that that evidence was individually considered. I find no substance in this criticism.

18. The other allegations under this ground overlook the simplicity of the issues in the case. As mentioned earlier, the only way any gambler could rebut the resumption that he had performed the actus reus of the offence was to show either that the premises were licensed or that the tile fee was no more than $14 per day. In the circumstances of this case, if he could not prove either of those facts he could not rebut the presumption. None of them did, so the presumption was not rebutted in respect of any of them. Whether the game was played in s. 3(4)(a) (i) premises or in s. 3(4)(a)(ii) premises it was unlawful because the owner of the tiles received more than $14 in the course of promoting or conducting the game by way of business. (s. 3(4)(d)).

19. Ground 9 alleges that the magistrate by implication misdirected herself in holding that the evidence of "sham club" conduct on the premises had any relevance to the cases of the players.

20. The holding was relevant to the issue of whether the game was lawful under s. 3(5) and was also relevant to the question of whether the players knew that the premises were not licensed.

21. Ground 10 alleges misdirection in dealing with the case as regards the lst Appellant by having regard to evidence of her position on the committee of the Modern Literature and Arts Association, her access to records on the premises and her ability to approve membership applications as evidence relevant to the issue of "operating the establishment".

22. There was also evidence of the 1st Appellant's presence on the premises, that the premises were occupied by the Association that the Association was registered under the Societies Ordinance and that she was registered as its Chairman. All that evidence was relevant to the question of her connection with the premises and was capable of supporting a finding that she was an operator of the premises.

23. Ground 11 alleges misdirection as regards the cases of the 3rd and 4th Appellants in that the evidence in relation to them showed performance of menial work falling short of assisting in the management of a gambling establishment.

24. The evidence showed that the 3rd Appellant on 5th and 14th November adopted the sham membership procedure, explained the hidden charge in the bill and assisted the management of the business by dealing with the bill. It also showed that the 4th Appellant on 14th November assisted the managing of the business by dealing with a bill and explaining the charges. Those charges were as I have earlier shown, a key element in the unlawfulness of the activity. There can be no doubt that the 3rd and 4th Appellants did assist the management of the business being conducted. That business was the provision of unlawful gaming facilities. By definition, that conduct amounted to assistance in the management of a gambling establishment.

25. Grounds 12 and 13 allege that the material irregularities mentioned in Grounds l to 11 make the convictions of all Appellants unsafe and unsatisfactory

26. There was only one ground with any merit but it was not sufficient on its own, for reasons already given, to render any conviction unsafe or unsatisfactory.

27. The appeal of each Appellant is dismissed.

Representation:

Mr. C. Harris for the Crown.

Mr. Gordon Hampton instructed by Raymond T.M. Lau & Co. for Appellants.