The Queen v. Chui Kai Leung and Others

HCMA000758/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 758 of 1984

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BETWEEN

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Coram: Deputy Judge Leonard in Court

Date of hearing: 13 May 1985

Date of delivery of Judgment: 22 May 1985

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JUDGMENT

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1. The appellants were convicted, after a four day trial before a magistrate at Causeway Bay, of an offence of gambling in a gambling establishment, contrary to Section 6 of the Gambling Ordinance. They appealed against conviction on the ground that in each case, the conviction was unsafe and unsatisfactory.

2. The appellant CHUI Kai-leung appeared in person when this appeal was heard. The appellant WONG Sau-chuen was absent, not having been served and his appeal was adjourned. Mr. Maclanachan of Counsel, represented LUI Sui-lun and WONG Chi-wai. All four appellants appealed on the ground in each case that the conviction was unsafe and unsatisfactory. The Crown's case at the trial as I have gleaned it from the magistrate's minute of evidence was that a party of police officers acting under an authorization issued by a Superintendent of Police under s. 23 of the Gambling Ordinance, Cap. 184, raided a restaurant in Causeway Bay on the 22nd of August 1984 at about 2 a.m. After gaining entry to the ground floor, they went upstairs to the first floor and they had to force open the double doors to the main restaurant area, which were locked from the inside. They dashed through a dimly lit restaurant area and then to a well lit V.I.P. room separated from the main restaurant by partitions. There were about 20 people inside and about half of them managed to run out of the V.I.P. room, which contained equipment allegedly suitable for playing pai Kau as well as a box of money. The police searched the premises and rounded up everyone they found including a number of restaurant staff who were not charged. In due course, 18 persons were arrested and charged including the appellants. The police had found the appellants in various locations after a search of the premises. None of them were arrested inside the V.I.P. room itself, but there was evidence of a fleeting identification of one of them in that room by a police officer, that being the only direct evidence that any of them had been in the V.I.P. room.

3. There was no direct evidence that gambling had been going on in the V I.P. room. By consent of the defence, the statement was tendered of a police officer who was put forward as an expert in gambling and who had apparently formed the view after looking at the exhibits in the case that a game of Pai Kau had been going on in the V.I.P room, involving banker and commission money. The maker of this statement did not explain the nature of the game of Pai Kau or the reasons for his conclusions. The record does not show whether the statement was merely tendered as evidence under s. 65(b) of the Criminal Procedures Ordinance or as containing admitted facts under s. 65(c) of the that Ordinance. It seems likely, though not mentioned in the record, that in putting in the statement of the witness as to his opinion that Pai Kau had been played, the Crown hoped to pray in aid the provisions regarding expert evidence about gambling which are contained in s. 20(3) of the Gambling Ordinance.

4. In his opening speech, the prosecutor appears to have mentioned s. 19 of the Gambling Ordinance, but the record does not reveal what he said. He may have been indicating a reliance on any or all of three statutory presumptions created by s. 19 of the Gambling Ordinance which appear relevant in the light of the evidence recorded. The possible presumptions, which would have depended on certain findings of fact being made by the magistrate, might have been: first, that the premises were a gambling establishment, (s. 19(1)(a) and 19(1)(c)). Second, that one or all of the defendants was or were gambling therein, (s. 19(2)), and thirdly, that money found in the premises or on anyone found therein had been used for or in connection with unlawful gambling, (s. 19(4)).

5. The Defence case was that all four of the appellants had been playing together at a game of mahjong in the dimly lit main part of the restaurant with the aid of a mahjong lamp, while the wife of one of them, the lady who was subsequently acquitted, watched. Their case was that the lady went to the toilet to wash and was returning to the game when the police raided the premises. One appellant was found in a male toilet at the time of the raid. Of the other three, two were off-duty police officers. There was evidence that when the raid took place, they heard a shout of robbery and, seeing someone running away, they chased him, and they were found at the foot of a light of stairs leading to a fire exit which was chained up.

6. At the end of the trial, which occupied four days, the magistrate announced his conviction of the appellants. According to the record, he explained his decision by saying that he disbelieved the defence and he gave brief reasons for his disbelief. Later he wrote a statement of findings occupying 12 lines of typescript in which after referring to his "judgment" , he said the case for the defence stood or fell on whether the court believed that a mahjong game had been going on in the main hall of the restaurant. He did not believe that story or the tale about the pursuit of a fleeing man after a shout of robbery. In an Amplified Statement of Findings, the magistrate gives slightly expaned reaons for disbelieving the defence and says that, "having rejected the defence evidence, the court found it safe to infer that the defendants had all been in the V.I.P. Pai Kau room. Thus, after 3 attempts, the magistrate had done no more than say that he disbelieved the defence and that his disbelief permitted him to infer guilt. Nowhere has he mentioned any of the evidence called for the prosecution nor has he mentioned the law applicable to the case. The record shows that there was ample evidence upon which a magistrate properly directing himself could have convicted and Mrs. Harris, for the Crown, has defended the conviction on that basis. But that is not an end of the matters. Mr. Maclanachan has pointed out that the magistrate's various statements suggest that he has forgotten that it is for the Crown to prove its case in any criminal trial. In the total absence of any mention of the Crown's evidence and of any hint that the magistrate evaluated it in the light of the law applicable, the convictions must be regarded as unsafe and unsatisfactory and must be quashed.

7. The appears against conviction are allowed and the fines, if paid, are ordered to be repaid since they fall with the convictions. I would only add that Mr. Maclanachan for two of the appellants and Mrs Harris for the Crown, did raise before this court certain specific points which amounted to an invitation to guess at the findings of fact which the magistrate may have made and the legal effect of such findings if they had been made. I could see no attraction in such a speculative exercise. The appellants of whom two are police officers have been waiting 7 months for the hearing and resolution of this appeal and they have appeared 4 times before this court,in two cases with solicitor and counsel. They have suffered enough and there trill be no order for a retrial.

Representation:

Mrs. A. Harris, Crown Counsel for Crown.

CHUI Kai-leung in persona.

WONG Sau-chuen absent.

Mr. J. Maclanachan, instructed by Messrs. David Ravenscroft & Co. for LUI Sui-lun and WONG Chi-wai.