The Queen v. Kwok Mei-sheung and Others

HCMA001278/1988

Headnote

Evidence - presumption of regularity - presumption that an authorization for search was signed in accordance with S. 23 of the Evidence Ordinance Cap. 148.

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1278 of 1988

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BETWEEN

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Coram: Hon. Yang, CJ, Hon. Fuad, V-P & Hon. Penlington, JA

Date of Hearing: 30 March 1989

Date of Handing down of Judgment: 18 April 1989

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J U D G M E N T

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Hon. Yang, C. J.

1. Pursuant to Section 118(1)(d) of the Magistrates Ordinance, Cap. 227, Bewley, J. reserved for the consideration of this Court the following point of law, viz.-

"Whether a form of authorization issued under S. 23 of the Gambling Ordinance, Chapter 148, complies with the Section when the rank of the officer purporting to issue the authorization is not stated on the form."

2. The matter arose out of a police raid on 3rd May 1988 on the Golden Bird Recreational Association at 4/F, No. 11 Nelson Street, Mongkok on suspicion that the premises were a gambling establishment. The applicant Kwok Mei-Sheung was tried before Mr. J.M. Meredith sitting at the North Kowloon Magistrate's Court for three offences under the Gambling Ordinance. Having been convicted of all three offences, Kwok appealed to the High Court against his convictions.  There are fourteen grounds of appeal, of which only the first need concern us.  It reads:

"The learned Magistrate erred in law in ruling that Exhibit 2 complied with Section 23(1) Gambling Ordinance, Cap. 148, as the said Gambling Authorization was not authorized by a Police Officer of or above the rank of Superintendent."

3. It is not disputed that the police raid was carried out in pursuance of what is commonly known as a Gambling Authorization (Ex. P2). The person who issued the Authorization was described as "E.G.F. Aitken ADC OPS MK". Translated into English, the initials mean: "Assistant District Commander, Operations, Mongkok". There was a signature of the issuing officer, but his rank was not stated below the signature as one might expect. There was however this phrase (the significance of which will be considered in due course): "Now, therefore in exercise of the power conferred by section 23(1) of the Gambling Ordinance, I (namely Mr. E.G.F. Aitken) issue this authorization to Inspector Chow Chong Wai".

4. Section 23(1) provides that the Gambling Authorization must be issued by an officer of the rank of a Superintendent or above. The proper issue and execution of the Authorization could bring into operation a number of presumptions  under Section 19(1)(c) of the Ordinance.

5. Relying on the Prosecution's concession that an "ADC" could be an officer below the rank of Superintendent, Mr. McCoy argues on behalf of the applicant Kwok that the authorization was not issued in'' compliance with Sectibn 23(1).  No presumptions could therefore arise, on which it was conceded the Prosecution's case relied.

6. Mr. Harris, Crown Counsel, however submits that a Person who behaves as if he holds a public office is rebuttably presumed to hold that office.  In other words he relies on the maxim omnia praesumuntur rite esse acta. In support of this proposition he relies on Berryman v Wise (1791) 4 T.-R. 366 in which in which Buller, held that in the case of all peace-officers, justices of the peace, constables, etc., it was sufficient to prove that they acted in those characters without producing their appointments, and that even in the case of murder. Here the Authorization contains a reference to the power conferred upon the issuing office by Section 23(1) (see the phrase quoted above) which must activate the presumption of regularity that the Authorization was properly issued, to wit, it was issued in accordance with Sec: 23(1) by an officer not below the rank of Superintendent.

7. Contrary to Mr. McCoy's argument we think the prosecution's concession is immaterial. It is merely a concession that an Assistant District Commander might hold a rank below that of Superintendent. It is not a concession that a Gambling Authorization could be issued by an Assistant District Commander, below the rank of Superintendent.

8. Mr. McCoy then seeks to mount his attack from another quarter. He contends that the Prosecution was not entitled to rely on the presumption suggested by Mr. Harris to establish facts " central to the offences" charged: .vide Roy Dillon v-The Queen [1982] AC 484, 487 E-F; The Queen v Shum Kwan-chee [1987] HKLR 740, 743. With respect, the fallacy in this argument is that the presumption. Of regularity which Mr Harris advocates does not go to establlish facts central to the offences. Charged under the Gambling Ordinance. Instead, it goes to the activation of the presumptions under Section 19(1) (c.) It is those presumptions, if applied, which go to the central facts necessary to prove the offences.

9. Having examined all the authorities cited in argument and for the reasons stated, we dismissed the appeal on the issue referred to this Court.

Representation:

G. J. X McCoy (So & Karbhari) for all 34 appellants

Christopher Harris for Crown/Respondent