The Queen v. Ng Chun Keung and Others

HCMA000563/1988

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 563 OF 1988

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BETWEEN

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Coram: The Hon Mr. justice  Barnes in Court

Date of Hearing: 13 September 1988

Date of Delivery of Judgment: 11 October 1988

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J U D G M E N T

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1. The lst Appellant was convicted of operating and the remaining Appellants of assisting in operating a gambling establishment contrary to s. 5 of the Gambling Ordinance ("the Ordinance").

2. The premises in question were known as the "Wah Tang Association Ltd." and were situated on the 10th floor of a building at 607 Nathan Road. A party of police posing as gamblers anxious to play mahjong visited the premises on 5th February, 1988, the day the offences were alleged to have been committed. They were greeted on arrival by the 5th Appellant who immediately asked them if they wished to play mahjong. When one of the party replied that they did she then asked if any of them were "members". On being told that none were she then invited one of them "to register there and then. One gave her his persohal particulars'' and the party was led to a numbered room where they were supplied with the facilities to play mahjong. They played for, nearly three hours. During their play they were served with tea and handed towels by "different females" (one of whom was D4 uniformly fitted out. At the end of play they asked for the bill. D3, wearing the same type of uniform as D4, presented a bill for $44.00 and handed over with it a "membership card". When asked for an explanation as to how the bill was made up she said that $5.00 was for rent of the tiles and $39 .00 for rent of the room at $13.00 per hour. They paid the bill and left to return shortly afterwards with an inspector who carried an authority to enter the premises issues pursuant to s. 23 of the Ordinance. 62 people were then paying mahjong in a number of the rooms and 15 sets mahjong tiles were found in those rooms. D2 who admitted to being an employee of the establishment, was then present behind the cashier's counter. D1 arrived during the police search and claimed to be the manager of the establishment. D6 and D7 were found in the kitchen part of the premisee wearing, not the type of uniform worn by D3 and D4 ,but white aprons.

3. The first ground of appeal attacks the finding that the presumption under S.19 operated That presumption comes into play whenever "gambling equipment" is found on premises entered under an authirity granted pursuant to s. 23 An authority under s. 23 can only be granted by a police officer "of or above the rank of superintendent the documche as that authority in this case states that the person who issued it is "ADC OPS MK", a meaningless expression to anyone unfamiliar with police jargon. That being so, Mr. Cheng Huan submits that a proper foundation for the application of the presumption was not laid. I disagree. The inspeetor who led the arresting party said in evidence that he had with him Exhibit P44 which he showed and explained to D1 after the latter claimed to be the person in charge of the premises. The inspector called the exhibit a "gambling authorization", a shorthand expression universally used in Magistrates Courts to describe an authority issued pursuant to s .23 Whilst the Ordinance has no provision which make that document prima facie evidence of its contents the evidence of the inspector together with the format of the document itself indicating that the person who issued it claimed to be authorised to do so was sufficient to raise the presumpion of regularity so as to provide prima face proof that the foundation for the presumption existed . If there had been any questioning of the authenticity proved, then the evidence may not have been enough to raise the presumption. As there was neither, the learned magistrate had before him sufriciont eviaonce raise the statutery presumption.

4. Ground 2 attacks the use which the learned magistrate made of the Bills and the employment register which the police found on the premises. I think that he was entitled to look at the bills because they were similar to the bill presented to the first police party and relevant in showing that a business was being conducted there. Equally the employment register was also relevant for that purpose but was not admissible against any of the Appellants for the purpose of establishing the truth of any entry in that document relating to their association with the penises.

5. Ground 3 alleges that the learned magistrate erred in finding "that the company was promoting by way of trade or business the playing of mahjong". It was common ground that the owne of the manjong tiles always charged a hiring fee for the use of the tiles. Regular hiring of tiles fir the purpose of gaming means that gaming with those tiles is promoted by way of trade or business (Re V,  leung shui & others [1977] HKLR 544). There is, therefore, no merit in this ground.

6. Ground 4  alleges that there was no sufficient evidence "that each of the Appellants knew that the. premises were a gambling establishment", The gaming on the premises having been proved to have been promoted or conducted by way of business it could then be lawful only if the promises were licensed under s. 22 or the business of providing mahjong tiles waturned the owner, of the tiles no more than $10.65 pot day per set (SAM(d) & Regn. 7 of the Gambling Regulations). The evidence of the system used to admit players to instant mambanship, and of the make-up of the bill for providing the facilities was such that no one managing or assisting in the management by dealing with those matters could have believed he was involved in the running of a licensed mahjong school and that same evidence established that the people within that same category must have been aware that the business was returning the ownor of the titles more than $14.00 per day per set of tiles. The evidence did establish mens rea in respect of all A4, A6 and A7. As regards A6 ink A7 those considerations do not apply. They were found in the kitchen dressed as cooks. A4 was dressed in the sale uniform as those who presented the bills but there was so evidence that she did other than provide towels. The learned magistrate concluded that she and the kitchen workers must have known the nature of the premises beause of the length of time they had been employed. He had, however, come to that Conclusion by looking at the "employment register". That exhibie could not, as I mentioned earlier, be used for that purpose. There was insufficient evidence to support an inference than A4, A6 and A7 must have known that the premises were a gambling establishment.

7. The only ground apart from the general ground that the convictions were unsafe and/or unsatisfactory was that there was insufficient evidence that the 1st Appellant was operating and/or the other Appellants were assisting in the operation of a gambling establishment. There was ample evidence that Al was operating and that A2, A3 and A5 were assisting the operation.

8. The appeals of Al, A2, A3 & A5 are dismissed. The appeals of A4, A6 and A7 are allowed. Their convictions and sentences are quashed.

Representation:

Mr. D. Kilgour S.A.C.P. for the Crown.

Mr. Cheng Huang, Q.C with him Mr M.K. Wong (J. Fang & Co.), for the Appellants.