HKSAR v. Chong Chak on

HCMA000624/2003

HCMA 624/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 624 OF 2003

(ON APPEAL FROM STCC 399/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 26 March 2004

Date of Judgment: 26 March 2004

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J U D G M E N T

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1.This is an appeal against conviction. The Appellant was convicted of one charge of engaging in bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance.

2.The offence took place at the Shek Pik Prison as the Appellant with other prisoners were admitting the coming out of the book-binding workshop. As the inmate for coming out of the book-binding workshop, a simple search was conducted on another inmate called Mr Tung and then, Mr Chong (that is the Appellant) was then searched. The Correctional Services Officer suspecting that there was something on the Appellant, then ask him to stand aside for a thorough search later. Then Mr Tung who had been searched earlier, returned to where the Appellant was and the Correctional Services Officer's evidence was that at that stage, the Appellant stretched out his hand and towards Mr Tung and dropped some envelopes to the floor. The envelopes were found to contain items relating to football gambling in relation to the 2002 FIFA World Cup.

3.It was the defence case that the Appellant never had the possession of these envelopes and in fact, Mr Tung was called as the defence witness do also deny that he was attempting to release the Appellant of any of the items.

4.The PW1's evidence was that when he was searching the Appellant, he realised that something was hidden in the left waistband of the Appellant's trousers and that is why he told the Appellant to stand aside for a thorough search later. And then he informed his colleague to his walkie-talkie to come in and assist him. At that time, Mr Tung suddenly walked back towards the Appellant and the Appellant took out something from his waistband. He then used both hands to stop the Appellant from handing over the thing that item was dropped onto the floor and he discovered that they were white envelopes.

5.This witness was cross-examined in some length by defence counsel as to his evidence and also what could be seen on the CCTV camera tape that was produced in court.

6.The learned Magistrate made the observation that the recording showed that the incident that were described did not happen one after the other but that there were separations in time between the incident. But he did notice that on the tape, he could see the Appellant was asked to move to one side and he could see also Mr Tung approaching the Appellant on more than one occasion. The learned Magistrate could also see PW1 stooping down to pick up envelopes.

7.PW2 gave evidence that he was standing next to the Appellant when Mr Tung came over to the Appellant and he said that they warned him to go away and he noticed that Mr Tung actually made a hand gesture as with to take something from the Appellant. There was great confusion at the time because there were a lot of prisoners milling around.

8.The evidence of PW2 was that the Appellant was trying to give something to Mr Tung. Subsequently, the thing fell on the ground and PW2 said that the prisoners were kicking the right envelopes on the floor.

9.PW3 was tendered and basically his evidence was that he had seen paper falling on the floor. And PW4 that he saw the Appellant tried to hand something to Mr Tung with his right hand and the envelope then dropped onto the floor.

10.PW6 also saw a similar occurrence. PW7 who was involved in a search of the Appellant said he located a four-colour ballpoint pen on the Appellant.

11.PW9 was an expert that was called and his evidence which were accepted by the Magistrate was that these were the records of book maker or a book maker's agent.

12.Mr Tung gave evidence on behalf of the defence and he said that after he had been searched, he did go over to the Appellant to take the newspaper from him. At that time, he was pushed by an officer and the scene became chaotic and he denied that the Appellant had tried to give him anything.

13.At the end of the evidence, the learned Magistrate found that he believed the prosecution witnesses and found the defence witness to be unreliable and untruthful witness. He drew the irresistible inference that the Defendant was in possession of those envelopes in the circumstances that he was engaged in bookmaking and he therefore convicted the Appellant.

14.The Appellant was represented by counsel at the trial but appears on his own behalf in this appeal. Basically, his grounds of appeal are that he complains that the prosecution witnesses' evidence were inconsistent with the evidence in their witness statements and also inconsistent at times with each other. He also claimed that the evidence of the prosecution witnesses were inconsistent with what appeared on the CCTV tape.

15.It is clear that counsel for the Appellant at the trial made a very long submission to the learned Magistrate about the inconsistencies.

16.The learned Magistrate was alive to these inconsistencies and we can see at p. 19 of the appeal bundle, starting from paragraph 4, he had dealt with the inconsistencies and the CCTV tape.

17.The learned Magistrate recognised the fact that the recording was taken from some distance, the situation was chaotic and because of the number of people on the screen, some actions of the participants were blocked by other people present.

18.The learned Magistrate found, however, that on the evidence, it was clear to him that the eyewitness evidence of the possession of the items by the Appellant and his attempt to pass them to Mr Tung was irrefutable.

19.There were other criticisms about the handling of the exhibit which is not a ground of appeal here so I will not deal with it. Suffice it to say that the learned Magistrate dealt with the points raised by defence counsel in his Statement of Findings and at the end of the day, he concluded that the evidence of the prosecution was sufficient for him to draw the irresistible inference of the guilt of the Appellant.

20.I have read the Statement of Findings of the learned Magistrate and also his oral reasons and I am satisfied that the learned Magistrate had sufficient evidence before him to properly convict the Appellant in this case and there are no valid grounds to disturb the conviction of the learned Magistrate, so the appeal is dismissed.

Representation:

Mr Cheung Wai Sun, DPGC of Department of Justice, for the Respondent

The Appellant, in person