Read the full judgment text of HCMA 000710/1984 on BabelCite. This High Court CFI judgment was delivered on 14 February 1985 before Deputy High Court Judge Cruden.
Criminal law – gambling – Gambling Ordinance, Cap. 148 – ss. 3, 5, 6, 15, 18, 19, 23 – whether all convictions or only alternative convictions should be quashed where two appellants convicted of both principal and alternative charges – weight given to irrelevant matters – statutory reversal of burden of proof and statutory presumptions – whether appellate Court entitled to assume when Statement of Findings silent that the correct standard has been applied – mahjong played with chips at private members' club – police entry under s.23(2)(a) authorisation – hearsay statements by co-defendants and other accused – first appellant alleged to receive $8 commission per round from each player – first appellant denied any unlawful gambling – magistrate convicted on both alternative charges, imposing sentence only on substantive charges – police raid on premises of The Kwun Tong Club Ltd. on 4 July 1984. First issue: whether convictions on both alternative charges should be quashed – held that as a matter of law only one conviction may be entered on alternative charges, but rejection of submission that all four convictions should be quashed – distinguished R. v. Cummerson on the basis that the exceptional cumulative factors (poor drafting, doubt as to evidence, judicial misdirections) were not present. Second issue: whether appellate court can assume correct standard of proof applied – held that appellate court is entitled to assume where there is non-direction rather than misdirection that the magistrate has applied the correct standard of proof on fundamental matters. Third issue: whether convictions were unsafe and unsatisfactory – magistrate wrongly relied on irrelevant matters including the first appellant's warning others not to speak, treating hearsay statements as evidence against all appellants, and drawing adverse inference from a defendant's absence – magistrate also operated under fundamental misconception that all gambling is unlawful, failing properly to consider lawful gambling exceptions under s.3(2) and s.3(3) of the Gambling Ordinance – direct evidence of unlawful gambling was minimal and no s.20(3) police evidence on illegality was led – hearsay statements by 7th defendant and 6th appellant were not evidence against the first appellant – court declined to exercise wide discretion under s.119(d) of the Magistrates Ordinance to uphold convictions. Outcome: all 15 appeals upheld, all convictions quashed.
Legal issues: Convictions on both alternative charges · Assumption of correct standard of proof by appellate court · Unsafe and unsatisfactory convictions based on irrelevant matters and statutory presumptions
Outcome: All 15 appeals upheld; all convictions quashed.