Fung Sik Chung v. The Queen

HCMA000436/1984

HEADNOTE

Consent to prosecute - no jurisdiction to exercise powers of amendment under Section 27 of Magistrates Ordinance from a charge not requiring Attorney General's consent, to one that does require his consent.

Bookmaking - a person who 'assists' in committing the offence of bookmaking is not liable to prosecution under Section 7(1)(a) Cap. 148 - prosecution must be under Section 7(1)(c) which is an offence specifically created for those who assist in the offence of bookmaking.

Mag. App. 436 of 1984

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 436 OF 1984

____________

BETWEEN

_______

Coram: O'Connor, J.

Dates of hearing: 2 November 1984 and 26 March 1985

Date of judgment: 3 April 1985

___________

JUDGMENT

___________

1. The appellant was convicted of bookmaking contrary to section 7(1)(a) of the Gambling Ordinance, Cape 148, It was a run of the mill case, the police entered premises in execution of an authorisation issued under section 23(1). The entry of the police was delayed and therefore a presumption arose, by virtue of section 19(1)(a), that the premises were a gambling establishment. Three adults were found on the premises. One of them escaped. The appellant was arrested after a struggle. He had been destroying evidence. There was evidence indicating horse racing bets, made by phone, were being accepted on the premises. The learned magistrate found, as he was entitled to find, that bookmaking was being carried on in the premises immediately before the police entered.

2. The magistrate went on to find that the appellant 'was engaged in receiving bets, or else he was present aiding and abetting someone else who was receiving bets'. It is the addition of the words 'or else was present aiding and abetting someone else who was receiving bets', that causes the problem giving rise to the only ground of appeal that has substance.

3. Generally the distinction between the principal in the first degree, the physical perpetrator of the actus reus and the aider or abettor is of no legal significance as they have both committed the same crime.  Gould & Co. Ltd. v Houghton⁽¹⁾, Surujpaul v R⁽²⁾.  Aiding or abetting is merely a method of participating in the crime in an alternative manner to being the physical perpetrator of it. The aider or abettor may be indicted as if he were the physical perpetrator, and vice versa, and is subject to the same punishment. The liability of an aider or abettor is derivative. Therefore, generally, a trier of fact does not have to decide whether an accused is the actual perpetrator, or whether on the other hand he is an aider or abettor. It suffices if he is either, without denoting which, R v Swindall⁽³⁾. However a statute may be so worded as create a separate offence for the secondary party, Glanville Williams in his Criminal Law. The General Part (2nd Ed. 1961) page 358 put it this way

"If a statute creates an offence, and then provides that those who assist it shall be guilty of a separate offence, these persons can be convicted only of the offence so specified, and cannot be convicted of abetting the main offence"

and he refers to Baxter v Keldon⁽⁴⁾ .

4. The appellant was convicted of bookmaking contrary to section 7(1)(a) of the ordinance, That section reads as follows:

"7(1)  Any person who-

The section clearly creates three offences. As first enacted, the section did not include subsection 2 which requires consent of the Attorney General to a prosecution under subsection 7(1)(c). Subsection 2 was added at the same time as section 19(3) which created a harsh presumption in relation to an offence under section 7(1)(c). It appears that Legislative Council when agreeing to the presumption being added, decided that the consent of the Attorney General should be required for a prosecution under section 7(1)(c), as a safeguard against misuse of the presumption. A consequence, probably unforeseen by the legislature, is that a magistrate cannot exercise his normal powers of amendment under section 27 of the Magistrates Ordinance, to amend, from a charge under section 7(1)(a) to a charge under section 7(1)(c), see R v Moore ⁽⁵⁾ , R v Bacon ⁽⁶⁾, Gilmour v Midways Springboard Pty. Ltd.⁽⁷⁾, Traveland Pty. Ltd. v Doherty⁽⁸⁾, Public Prosecutor v Datuk Haji Dzulkifli⁽⁹⁾, D'Oliviera v Chase⁽¹⁰⁾, R v Downey ⁽¹¹⁾, R v Pearce⁽¹²⁾, R v Cain⁽¹³⁾.   Of interest concerning the contents of a valid consent are Gokulehand Dwarkadas Moraka v R⁽¹⁴⁾ and R v Cheung Sou Yat⁽¹⁵⁾.

5. As is clear from his supplementary findings, the learned magistrate was aware of the fact that he could not amend the charge to one under section 7(1)(c). He considered however that R v Lam Shek Yiu ⁽¹⁶⁾ was an authority for the principle that the existence of a separate offence of 'assisting' created by section 7(1)(c) did not preclude a conviction under section 7(1)(a) on the basis of aiding and abetting. In that case Macdougall J. was dealing with the necessary elements for a conviction under section 7(1)(a). The learned judge, in the course of his judgment, made some remarks about the definition of bookmaking, which is as follows

"'bookmaking' means the soliciting, receiving or negotiating of a bet by way of trade or business whether personally or by letter, telephone, telegram or by any other means."

6. Macdougall J, held that the words 'by way of trade or business' in the definition did not restrict the soliciting, receiving or negotiating of a bet to the owner of the business.   He indicated that an employee who receives a bet or bets on behalf of his employer who runs a bookmaking business receives it, or them, no less in the way of trade or business than does his employer, that the words relate to the purpose for which the bet or bets are received, and this is so irrespective of whose trade or business it is by way of which it, or they, are received. I agree with those observations. An employee receiving bets in those circumstances, is the actual perpetrator of the actus reus. He is the principal in the first degree. His liability is not derivative.  Macdougall J. did not hold, or indicate as his view, that a person who was 'assisting' another in bookmaking, in the sense of aiding and abetting him, would be liable to conviction under section 7(1)(a). What he held was that a person who himself committed the actus reus of bookmaking, even though it was on behalf of another, was liable to conviction under section 7 (1)(a). Such a person is assisting in the bookmakers business, but he is not assisting in the offence created by section 7(1)(a). He is perpetrating it. As I have said such a person would not be an airier or abettor, but a principal in the first degree. I have shown my brother Macdougall the part of my judgment relating to R v Lam Shek Yiu, and he agrees with it.

7. I conclude that a person who 'assists' another in the offence of bookmaking is not liable to conviction under section 7(l)(a). A person who 'aids' another to commit an offence, must have assisted him to commit it. The learned magistrate, in his findings, has left it open that appellant may have been an aider, and therefore the conviction cannot stand and I allow the appeal and set aside the conviction and sentence.

8. The matter of whether 'abetting' is synonymous with 'aiding', or whether they express different concepts, has not been gone into in any detail before me and I express no view on the matter. The subject is discussed in an article by Professor Smith in 'Reshaping the Criminal Law: Essays in Honour of Glanville Williams' edited by Glazebrook at page 120. Differing views were expressed in Attorney General's Reference (No. 1 of 1975) ⁽¹⁷⁾ and D.P.P. for N. Ireland v Lynch⁽¹⁸⁾. In R v Georgi & Romeo⁽¹⁹⁾ Zelling J. was of the view that 'encouraging' may be necessary for 'abetting', but not for 'aiding'. See also Smith and Hogan's 'Criminal Law' 5th Edition at page 121.

9. Section 7 of the Gambling Ordinance is unnecessarily complex. It creates three offences, thereby causing difficulties. If the words 'commits an offence' in section 7(1) were replaced by 'commits the offence of bookmaking', there would be only one offence which could be committed in various ways. Further an amendment of section 7(2) so that instead of the Attorney General's consent being required for a prosecution, it was only required before the presumption could be applied, would be an improvement. Such amendments would achieve the objects of the legislation without the pointless difficulties that exist at present.

(1)    [1921] 1 KB 509

(2)    [1958] 1 WLR 1050

(3)    (1846) 2 C&K 230

(4)    [1955] 1 WLR 84

(5)    (1947) 64 W.N.(N.S.W.) 133

(6)    (1973) 1 N.S.W. L.R. 87

(7)    (1980) 33 A.L.R. 605

(8)    (1982) 41 A.L.R. 563

(9)    (1982) Malaysian Law Journal 340

(10)    7 West Indian Reports 18

(11)    [1971] N. Ireland R. 224

(12)    [1981] 72 Cr. App. R. 295

(13)    [1975] 3 W.L.R. 131

(14)    [1948] All India Reports (J.P.C.) 83

(15)    (1979) HKLR 630

(16)    Cr. App. No. 496 of 1982

(17)    [1975] 1 Q.B. at 779E

(18)    1975 AC at 678A and 698F-G

(19)    [1982] 31 S.A.S.R. 299

Representation:

Mr. Hampton of Hampton, Winter & Glynn for appellant

Mr. Bruce, Crown Counsel for Respondent