The Queen v. Lam Yick Kwan and Others

HCMA000125/1985

Case stated defective

Importance of following strictures of Full Court

in The A.G. v. Leunq Chi Kin [1974] H.K.L.R. 269

approved by Court of Appeal.

in The A.G. v. Yau Ka Ping [1977] H.K.L.R. 76

When it is contended that no person acting judicially and properly instructed as to the relevant law could have come to a particular finding on the evidence, the evidence should be set out in the case stated.

The raising of the presumptions in Section 19 of the Gambling Ordinance did not operate so as to require the respondents to give evidence in order that the presumptions could be rebutted.

The playing of mahjong is not necessarily gambling even though chips are used.

Since it was not possible to say the Magistrate reached the wrong conclusion in finding that there was no gambling without the evidence being set out and since the appellant did not apply for the case to be remitted to the Magistrate for amendment, appeal dismissed with costs.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 125 OF 1985

BETWEEN

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Coram: Hon. Hooper J.

Date of Hearing: 22 March 1985

Date of Delivery of Judgment: 22 March 1985

Date of Reasons for Judgment: 11 April 1985

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REASONS FOR JUDGMENT

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1. This was an appeal by the Crown by way of case stated from the decision of the Magistrate at Tsuen Wan dismissing informations in respect of managing a gambling establishment (against 1st respondent contrary to Section 5(b) of the Gambling Ordinance Cap.148), assisting in the management of a gambling establishment (against 2nd respondent contrary to Section 5(c)) and gambling in a ambling establishment (against the remaining respondents contrary to Section 6).

2. Having dismissed this appeal at the hearing on the 22nd March 1985 I indicated I would give detailed reasons later and I now do so.

3. The first five paragraphs of the Magistrate's case stated set out introductory parts of this appeal but in paragraph 6 he set out facts which he said were proved on the part of the appellant and/or agreed between the parties as follows: -

4. In paragraphs 7 and 8, the Magistrate further described the proceedings at the trial as follows:

5. In paragraph 9 the Magistrate included a submission made by the appellant during the preparation of this appeal as follows:

"9.      The Appellant now further submits that my findings that the officers 'at no time saw or heard any gambling going on' in respect of the visit on 9th May, 1984 in paragraph (2) above and that the officers 'did not see or hear any gambling going on' during the 1½ hours playing mahjong there on 12th May, 1984 before the arrival of the raiding party in paragraph (3) above, were not supported by evidence. The basis of the Appellant's submissions is that these officers were never asked the question whether they were aware of other people gambling on the premises during the trial. Instead, their evidence was that they found Respondents 3 to 10 and four other persons playing mahjong at the time of the raid on the 12th May. It is the submission of the Appellant that the only inference to be drawn from that is that Respondents 3 to 10 were playing mahjong there during the whole or part of that 1 ½ hours before the raid."

6. In paragraph 10 the Magistrate set out his finding at the trial as follows:

"10.  On 17th August 1984 I delivered a judgment to the following, effect: that there was no evidence of actual gambling. I considered the case of R v Leung Shui and others (1977) HKLR 544. That case was distinguishable in my view in that the chips were on the tables: as Cons J. put it 'the chips were down'. I further considered the case of Won Kar-kui and others v R (1982) HKIR 488 where the sole purpose of the establishment was to provide facilities for playing mahjong. I found that the Club in the instant case was conducted as a genuine social club, was private, and the playing of mahjong was not promoted or conducted by way of trade or business or for the private gain of any person."

7. Having recorded his dismissal of the respective charges in paragraph 11 the Magistrate posed in paragraph 12 the questions of law said to arise as follows:

8. Having heard counsel for the appellant and counsel for the 1st and 2nd respondents, I found it impossible to answer the first question. It was of course the contention of the appellant that the Magistrate erred in law in holding that there was no gambling. Such a finding depended, of course, on a finding of fact. It could only be said that the Magistrate erred in law in reaching that finding if the evidence was such that no person acting judicially and properly instructed as to the relevant law could have come to that finding. This is made very clear in the judgment of Lord Radcliffe in the House of Lords in Edwards v. Bairstow⁽¹⁾ on an appeal which had been by way of case stated from the decision of the Commissioners for Income Tax. Having considered a number of authorities in the English and Scottish courts, he had this to say:

"My Lords, I must apologise for taking so much time to repeat what I believe to be settled law. But it seemed to be desirable to say this much, having regard to what appears in the judgments in the courts below as to a possible divergence of principle between the English and the Scottish courts. I think that the true position of the courts in all these cases can be shortly stated. If a party to a hearing before commissioners expresses dissatisfaction with their determination as being erroneous in point of law, it is for them to state a case and in the body of it to set out the facts that they have found as well as their determination. I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been an error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur."

9. The difficulty in the appeal before me was that I did not know what evidence the Magistrate had before him. Further it was clear that the 1st respondent elected to give evidence in his own defence. It appeared from the findings that he was present at the time of the raid and of course the other respondents would have been entitled to rely on his evidence. Unfortunately, the Magistrate did not indicate what the 1st respondent had said or whether he had believed him or whether he had found his evidence of no significance.

10. The case stated was in fact defective for a number of reasons. It is important that the strictures of the Full Court in The A.G. v. Leung Chi Kin ⁽²⁾ backed by the Court of Appeal in The A.G. v. Yau Ka Ping⁽³⁾ be borne in mind in the preparation of a case stated.

11. In the former case, Huggins J. (as he then was) delivering the judgment of the Full Court said:

"The evidence should not be set out unless it is the appellant's contention that the Magistrate ruled wrongly that there was or was not a case to answer or that there was no evidence to support one or more of the findings of fact."

12. Clearly it should be said that the evidence should be set out when it is contended that no person acting judicially and properly instructed as to the relevant law could have come to a particular finding on the evidence.

13. Despite it having been raised by counsel for the 1st and 2nd respondents that the case stated was defective, counsel for the appellant made it quite clear at the outset of the hearing of this appeal that he did not wish to apply for the case stated to be remitted to the Magistrate for amendment. He wished the appeal to be heard in its present form.

14. The first question was aimed at the Magistrate's finding that there was no gambling despite the existence of certain particularised evidence. Although I found this question impossible to answer as the case stated stood before me I make the following comments:

"Gambling" is defined as including "gaming".

"Gaming" is defined as meaning:

"The playing of or at any game for winnings in money or other property whether or not any person playing the game is at risk of losing any money or other property."

"Game" is defined as meaning:

"a game of chance and a game of chance and skill combined."

15. It follows from this that the playing of mahjong may be gambling. However, it does not necessarily follow that the playing of mahjong is always gambling. It may not be gambling. I expressed my disagreement with the contention of Mr. Wong for the appellant that the playing of mahjong must be gambling. It is possible for persons to play mahjong when the object of the game is not for "winnings in money or other property". It is true that the task of the prosecution in a case like this is facilitated by Section 17 and Section 19.

16. Section 17 provides: -

"       In any proceedings under this Ordinance -

17. This section does not however alter the essential elements of gambling. It is only concerned with proof.

18. Section 19 provides: -

it shall be presumed until the contrary is proved that the premises or place are or is a gambling establishment.

19. These presumptions may be rebutted by evidence which shows that the contrary is more likely than not and in considering whether the contrary is proved the Magistrate is not limited to the evidence for the defence. He must decide whether the contrary is proved on a consideration of the evidence as a whole.

20. It was conceded by Mr. O'Reilley Mayne, Q.C. for the 1st and 2nd respondents that those presumptions operated in this case. But it was his argument that without the evidence in the court below being set out it was not possible to hold that the Magistrate was wrong in holding that the premises were not a gambling establishment or that respondents 3 - 10 were not gambling. He distinguished the cases of Leung Shui⁽⁴⁾ and Wong Kar Kui⁽⁵⁾ relied upon by Mr. Wong on the basis that those cases were concerned with their own sets of facts. In the present case he argued that one could not say for instance that the club was a sham as in Wong Kar Kui's case because the Magistrate had found on the evidence as a whole that it was a genuine social club.

21. Applying the dictum of Lord Radcliffe to the present case 1 cannot say on the evidence that the Magistrate was not correct in law in ruling that there was no gambling. Certainly, evidence to show mahjong being, played with chips in the drawers of the mahjong tables was evidence which when considered and weighed with other evidence might have led him to reach another conclusion but it does not appear to me to necessarily lead to that conclusion.

22. The first question seems to assume that it can be answered simply on the basis that if such evidence existed, then a ruling in law that there was gambling must necessarily follow. My answer to that is that it depends on the evidence as a whole. A finding of no gambling does not exclude the possibility that mahjong was being played with chips. Both Mr. Wong and Mr. O'Reilley Mayne at the hearing of the appeal agreed that the first question should be read as if it included the words "on the evidence as a whole" after the word "law".

23. I indicated that this question was impossible to answer without having studied the evidence as a whole but that evidence of the kind specified in the question did not necessarily preclude a finding that there was no gambling.

24. In both Leung Shui's case and Wong kai Kui's case upon which the appellant heavily relied in this appeal, the judges would have had before them the whole transcript of the evidence. On a case stated with one exception the parties are bound by the Magistrate's finding on the primary facts and on the inferences drawn from those facts. It is only when those facts or inferences found by the Magistrate are contradicted by "the true and only reasonable conclusion" on the evidence as a whole that this court can hold him to have erred in law in making findings of fact.

25. My answer to the second question was "No". Section 19(l) and (2) of the Gambling Ordinance did not operate so as to require the respondents to give evidence in order that the presumptions could be rebutted. The respondents could rely upon material in the Crown evidence as well as that of a co-accused.

26. On dismissing the appeal, I indicated that I would give my answer to the third question at the time when I gave my detailed reasons, though it appeared to me that Section 3(2) of the Gambling Ordinance did not apply in this case because the Magistrate had held that there was no gambling. Once that finding had been made, I could not see the relevance of considering a provision which set out circumstances in which gambling may be lawful.

27. I will only add that without the evidence being set out, even if I were to accept that gambling had been going on in the premises, it would not have been possible for me to answer this question.

28. For these reasons, I dismissed the appeal and ordered that the appellant pay the costs incurred try the respondents.

(1)    [1956] A.C. 14 at page 35

(2)    [1974] HKLR 269

(3)    [1977] HKLR 76

(4)    [1977] HKLR 544

(5)    [1982] HKLP 488

Representation:

Mr. Frank Wong (Asst. Principal Crown Counsel.) assisted by Mr. S. Au (Asst. Crown Counsel) for A.G./Appellant.

Mr. Desmond O'Reilley Mayne, Q.C. assisted by Mrs. Lorna S.W. Wu (Lau & Co.) for 1st and 2nd Respondents.

3rd - 10th Resnondents - in person.