The Queen v. Lo Hung

CACC000340/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 340 of 1983

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Between

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Coram:  Hon. Penlington, J. in Court

Date:  17th May, 1983

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JUDGMENT

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1. The appellant was convicted on a charge of bookmaking, contrary to Section 7 of the Gambling Ordinance.

2. The Crown evidence was that he and another man, who was also convicted but does not appeal, were found in a flat in Happy Valley in which were tape records connected to telephones, betting slips and other gambling equipment.

3. There were several grounds of appeal argued by Mr. Gunston for the appellant but there are only two points which cause me some concern. The first is the admissibility of evidence from an expert called by the Crown, a Police Sergeant. He gave his qualifications and on the face of it, those qualifications seem to be such the magistrate could quite properly be satisfied that he was an expert and could accept his evidence as to the meaning to be interpreted to contents of the tapes that were found and the betting slips and other exhibits. However, Section 20 of the Ordinance says the magistrate must be so satisfied and the only thing he has recorded is a somewhat equivocal statement in his findings

"The court should not place undue weight on the evidence of the Royal Hong Kong Police expert and did not do so. "

That may mean that he didn't think the evidence called for an expert to interpret it but may have meant that he was not satisfied as to the Sergeant's evidence. That being so I think I have to give the benefit of the doubt and say that the magistrate apparently was not so satisfied as to the Sergeant's expertise and therefore the evidence must stand or fall without the benefit of expert interpretation.

4. I think the tapes speak for themselves. They refer to bets. They refer to numbers. They refer to sums of money and I think that the only possible way to interpret them is as a record of betting transactions. The "betting slips" although they perhaps did not need the great deal of imagination are not in that category and could not be treated as such for see.

5. What does however cause me more concern is that in the magistrate's decision he finds the two defendants guilty of "operating and assisting in the operation of a gambling establishment". In fact, both accused were charged with bookmaking. Neither was charged with operating a gambling establishment and certainly the 2nd accused was not charged with assisting. The magistrate in his statement of findings does not say exactly what he has convicted the defendants of but he says in paragraph 9.

"They should be convicted and dealt with as they were."

referring no doubt to the decision he recorded at the time. In that he said he was satisfied the 1st accused was operating a gambling establishment and the 2nd accused was assisting him. They would be convicted accordingly.

6. Having found that there was sufficient evidence of operating a gambling establishment Mr. O'Grady submits that the magistrate must therefore be satisfied that they were both bookmaking. He suggested that I should exercise the powers given to this court by Section 119(d) of the Magistrates Ordinance which reads as follows :

"the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate; "

7. I don't think that is an inevitable conclusion. I don't think I should do that in the circumstances of this case. There was no evidence that the tapes recorded either defendants' voice nor that any of the betting slips was written by them. They could have been operating a gambling establishment but not actually themselves bookmaking. The one charge does not necessarily encompass the other. I have also considered whether I should remit the case back for rehearing. As Mr. Gunston has said there have been considerable delays in this case which were not the fault of the accused. The charge relates to an offence committed on the 2nd of June 1982 almost a year ago and under all the circumstances of the case I don't think I should remit it back.

8. On the particular circumstances of this case and in view of the finding of the magistrate I think that the decision cannot be supported. The appeal must be allowed and the fine, if paid, be remitted.

Representation:

James O'Grady, Counsel for the Crown.

Gunston (Hampton, Winter & Glynn) for the appellant.