The Queen v. Kwong Yiu Hung and Others

HCMA001048/1987

IN THE COURT OF APPEAL

No 1048 of 1987

Magistracy

BETWEEN

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Coram: Hon. Silke, V.-P, Penlington J.A. & Jones, J.

Date of Hearing: 22nd March 1988

Date of Judgment: 21st April 1988

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the Court.

2. On 4th September 1987 at 1.15 p.m., acting under a gambling authorisation, a party of police went to the premises of the Kinden Garment Manufacturing Co. Ltd. on the 2nd floor of Hang Fung industrial Building, Hung Hom.

3. Observation was kept and a large group of people were seen gathered around an ironing table in the ironing section of the company.

4. The police then went in and found the game Pai Kau being played and money on the table. Pai Kau tiles, a box for those tiles, dice, a table cloth, a banker mark and cash were seized.

5. On 7th September 1987, 19 defendants appeared in the Magistrates Court at San Po Kong charged with gambling in a gambling establishment contrary to section 6 of the Gambling Ordinance, Cap. 148 - "the Ordinance". In addition three of the nineteen were charged with operating a gambling establishment contrary to section 5(a) of the Ordinance.

6. They were all then unrepresented and purported to plead guilty.

7. In the course of mitigation it emerged that the defendants thought themselves to be lawfully gambling, the gathering being a social one. The Magistrate, Mrs. M. Chui, correctly refused to accept the guilty pleas and set dates for trial.

8. On 12th November, all but three of the defendants being represented, the trial began before Mr. Winston Leung. The three unrepresented defendants pleaded guilty and were sentenced each being fined.

9. In the course of the trial those defendants charged with operating a gambling establishment were acquitted. All the defendants were convicted of gambling.

10. They appealed against those convictions and the matter, in the normal course of magisterial appeals, came before a single judge of the High Court, de Basto J.

11. Having heard initial submissions and being of the view that there were two conflicting authorities on what is unlawful gambling with direct reference to "social occasion" de Basto J., on 12th February 1988, directed, under the provisions of section 118(l)(d) of the Magistrates Ordinance, Cap. 227, that the appeals be argued before the Court of Appeal.

12. On 22nd March 1988 the hearing took place, the defendants/appellants being represented by Mr. Andy Hung and the Crown by Mr. A.A. Bruce with him Mr. Y.S. Lee.

13. The sole issue - the facts being not in dispute - was how wide is the application of the phrase "social occasion" used in the Ordinance.

14. It is first necessary to consider the scheme of the Ordinance generally and then its actual provisions.

15. The Ordinance, which came into effect on 17th February 1977, gave as its purpose "to amend the law relating to gambling". Its scheme is succinctly set out in section 3(l). Save as provided in subsections (2), (3), (4), (5), (6), (7) and (8) of section 3 gambling is unlawful.

16. This is the reverse of the legislation it superseded in which the scheme had been to individually identify gambling which was unlawful.

17. In section 2 gambling is defined as including "gaming, betting and bookmaking". "Gaming" is defined as meaning:

"the playing of or at any game for winnings in money or other property whether or not any person playing the game is at risk of losing any money or other property."

18. A very wide definition which, it is not disputed, encompasses the activities of the defendants on 4th September at the premises of the company.

19. Of the statutory exceptions it is only subsection (2) of section 3 which need concern us. This reads:

"Gaming is lawful if the same is played on a social occasion in private premises and is not promoted or conducted by way of trade or business or for the private gain of any person otherwise than to the extent of a person's winnings as a player of or at the game. "

20. As it is not suggested here that the gaming was by way of trade or business or for the private gain of anyone other than the person lucky enough to win we concentrate on the expression "on a social occasion in private premises".

21. The real difficulty in the construction of the Ordinance lies in the provisions of section 19, container in Part Iv of the Ordinance, the part headed "Proof of Offences".

22. Section 19, in so far as it is relevant, provides:

''(1) Where in any proceedings under this Ordinance it is proved that

(a).......

(b) .........

(c)    gambling equipment was found in any premises or place entered under section 23(2)(a) or on any person found in any such place or premises, it shall be presumed until the contrary is proved that the premises or place are or is a gambling establishment.

(2)     Where in any proceedings under section G it is proved that a person was found in a gambling establishment .... on the occasion of its being entered under section 23(2)(a) such person shall until the contrary is proved be presumed to have been gambling therein."

23. Section 18, which places the burden of proving that any gambling was lawful upon the defendants and which makes specific reference to certain sections makes no mention of proceedings for an offence under section 6.

24. Here there was an entry under the provisions of section 23(2)(a), gambling equipment and the defendants were found on the premises so the presumptions in section 19, read with the definition of "gambling establishment", come into play. "Gambling establishment" is defined as including:

"any premises or place, whether or not the public or a section of the public is entitled or permitted to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purposes of or in connexion with unlawful gambling ....."

25. This definition, by its very wideness, must include private premises used but once for or in connection with unlawful gambling.

26. Now if the gambling is lawful within the meaning of the exceptions to section 3 can the presumptions in section 19 arise? And upon whom lies the burden of proof

27. The decisions which are said to conflict are, in order of appearance, The Queen v. Lai Ping Sui and others⁽¹⁾: The Queen v. Fong Chi Keung and others⁽²⁾, both decisions of Wong J.. Both concerned offences contrary to section 6.

28. In Lai⁽¹⁾, it had been agreed at trial that the section 19 presumptions applied. The trial magistrate made a finding that they had not been rebutted. He expressed the view, which Wong J. held to be correct, that the result depended on whether the gambling was unlawful and that the burden of so proving lay upon the prosecution even where, as the judge put it:

"the gambling itself was proved by the presumption".

29. Wong J. then quoted a passage from the Magistrate's Statement of Finding which concluded by saying:

"In other words you can't convert illegal gambling into a social occasion simply by ordering a meal and thereby call it lawful gambling. It is a question of degree."

30. Wong J. held that this passage was correct in law and, the magistrate having rejected evidence given by the defence and having found that playing mahjong was not incidental to the meal but was the major event of the evening, convicted. A conviction which was held to be correct. In other words Wong J. found against the appellants on the issue of social occasion.

31. I would add that the trial magistrate had also found that the premises concerned was a sham club and that the gaming was promoted or conducted by way of business. From this it is clear that the evidence in Lai⁽¹⁾ is different from the evidence in the instant case.

32. In Fong⁽²⁾ the premises were at hotel cum Restaurant in the New Terrorities. The game was Pai Kau and the participants had hastily left the room which was used for gaming on hearing the police demanding entry; which entry had been delayed.

33. The trial magistrate there had found the hotel to come within the definition of a gambling establishment and that the presumptions arose under section 19. He further held that the burden was on the defendants to rebut. He held that they had failed to do so.

34. It was conceded, in the course of the appellate hearing, that the presumption under section 19(1) arose. But it was submitted that that section went only so far as to help the prosecution establish a prima facie case that the premises were a gambling establishment. It did not assist the prosecution to prove the mens rea of a particular defendant, that is that he knew that the premises were a gambling establishment.

35. This submission is one which I do not quite follow for it seems to ignore the provisions of section 19(2). The authority upon which counsel there relied - Yuen Chi Ming and others v. The Queen⁽³⁾ - related not to section 6 but to sections 5 and 15 - though the issue in Yuen⁽³⁾ seems to have been "gambling establishment" simpliciter.

36. A further submission was made that as well as the proof of mens rea the also had to positively prove that the gambling was unlawful. This was based first on a proposition that the Ordinance created two types of gambling - lawful and unlawful. With respect, in the light of the wording of section 3 and the general scheme of the Ordinance that cannot be so. Second that, by necessary implication section 18, to which I have earlier referred, placed the burden of proof upon the prosecution to prove gaming was unlawful. For myself I do not find any such necessary implication. In a tightly drawn Ordinance had the legislature wished to say that which it was sought to be implied it would have done so. The fact that section 18 imposes a direct burden on a defendant in relation to sections which are referred to in it does not mean that, because it does not specifically refer to section 6, the reverse applies.

Counsel there also relied on Lai⁽¹⁾.

37. Wong J., and rightly, rejected the two propositions in so doing, he said at page 7:

"To say that there can be lawful gambling in a gambling establishment is not only a contradiction in terms but also the worst absurdity and a complete defeat of the legislative intention. In my judgment, the correct and only sensible interpretation is that any gambling in a gambling establishment is unlawful."

38. He made reference to his own decision in Lai^(l) and then went on at page 9:

"Having reached the conclusion that no gambling is lawful if it takes place in a gambling establishment, I was clearly wrong when I said he (the magistrate in Lai) was correct that a conviction or acquittal depended on whether the gambling was unlawful and in my judgment the magistrate in that case was wrong on both propositions."

39. We have also been referred to Leung Shui and others v. The Queen⁽⁴⁾, a decision of Cons J. (as he then was) concerning section 3(2) and the expression "social occasion". There it was held that, on the evidence, the players had gone to an hotel for the purpose of gaming. It was also held that that hotel was promoting gaming by way of trade or business. The charge in Leung Shui⁽⁴⁾ was assisting in the management of a gambling establishment and it was undisputed that the situation there came within the expression "on a social occasion". The facts in Leung Shui⁽⁴⁾ do not make that decision of great assistance here.

40. In The Queen v. Mak Tat Kue and others⁽⁵⁾, Barker J.A. (sitting as an additional High Court Judge) rejected the social occasion argument on the basis, at page 6, that the purpose of the presence of the defendants was to gamble for money.

41. The authorities to which I have referred, and The Attorney General v. Chan Man Kong⁽⁶⁾, which is not directly in point, are the only ones which counsel have been able to discover.

42. It has been submitted to us that we should hold Lai⁽¹⁾ to have been correct and the change of heart by the same judge in Fong⁽²⁾ was wrong. And that we should hold the incident here to have been a social occasion.

43. In my judgment, the true position is that the exception in section 3(2) provides a defence to a charge under section 6 the prima facie proof of which emerges from the presumptions contained in sub-sections (1) and (2) of section 19. If the defendants can, or if the evidence of the prosecution itself is such to, rebut the presumptions then the gambling becomes lawful and the premises cease to be a gambling establishment. Once the presumptions come in to play then the burden, on the more likely than not basis, is placed upon the person charged. If this is what Wong J. was saying in Fong⁽²⁾, when he stated that no gambling is lawful if it takes place in a gambling establishment then Fong⁽²⁾ was rightly decided.

44. Here, the trial magistrate found on the evidence before him that the incident on 4th September did not take palce "on a social occasion". He said that it was a matter of degree. If he were right in his finding then these appeals must be dismissed.

45. "Social occasion" is nowhere defined in the Ordinance - an unfortunate omission. We have been referred to Seddon v. Binions⁽⁷⁾, a motor policy insurance case, where the meaning of the expression "social, domestic and pleasure purposes" in such a policy lay for consideration.

46. Roskill L.J. at page 385, having said at page 384 that where such a phrase was to be considered:

".... there will be cases which fall on one side of the line and cases which fall on the other side"

depending on the facts, went on:

"It seems to me that the solution of the problem can best be reached in this case by asking the question: What was the essential character of the journey in the course of which the particular accident occurred? A journey may have one essential or predominant character, or, as the Judge thought, it may have two perhaps equally balanced, perhaps slightly disparate, elements in its made up."

47. Roskill C.J. took the view that the essential character was that the car was being used for business purposes, the motive for such use being in no way conclusive but simply a factor to be taken into consideration.

48. Here, in my judgment, there was a dual use: the hope of winning money at Pai Kau and lunch time recreation. Which of them was, if either, predominant?

49. The trial magistrate in making his finding of fact that the 4th September incident was not a social occasion gave no specific reasons other than a short reference to the evidence before him. He felt that the legislature intended to leave the matter, as a matter of fact, for a Court to determine according to "common sense and good sense".

50. Here there was no evidence of any banker's bias, commission charged, charge for equipment or a planning of the gaming. There was no evidence of any promoting by way of trade or business. Had one or other of these elements been present, my decision might well have been different.

51. The trial magistrate did not have the benefit of the arguments adduced before us nor did he, and this in a busy Magistrates Court is not surprising, enter into a detailed analysis of the provisions of the Ordinance. I accept that for this Court to upset the finding of fact of the tribunal of first instance is something which it should be most hesitant to do. Unless those findings cannot, on the evidence, be sustained or are plainly wrong.

52. This was an evenly balanced situation where it was necessary to consider in detail and with care the provisions of the Ordinance. When one comes to the conclusion that the exceptions in section 3 are in effect a defence the burden of proof of which; by virtue of the presumptions, lies upon the defendants - and this I hold to be the correct view of the scheme of the Ordinance - one can, in the circumstances here, and the way this case was run depends very much upon its own facts, come to the conclusion that what was going on at the company premises on 4th September fell within the expression "on a social occasion".

53. With respect, I consider that the trial magistrate was wrong and that this Court is in as good a position as was he to make its own findings on the facts even though we are not the seeing or the hearing Court. Therefore, applying the law as I see it to the facts of this case I would allow the appeal.

(1) M.C.A.576/1987

(2)M.C.A. 605/1987

(3) M.C.A. 214 of 1981

(4) [1977] H.K.L.R.. 544

(5) M.C.A. 162/1983

(6) [1967] H.K.L.R..225

(7) [1978] L.L.R. 381

Representation:

Andy Hung, Esq. (S.K. Wong & Co.) for Appellants

A.A. Bruce, Esq. & Y.S. Lee, Esq. for Crown/Respondent