The Queen v. Lau Kwok Woo Another

HCMA000833/1988

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 833 OF 1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 26th October, 1988

Date of Delivery of Judgment: 26th October, 1988

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J U D G M E N T

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1. The appellants were two, of, a number of defendants, in charges alleging offences contrary to the Gambling Ordinance. The 1st appellant was the second defendant and faced a charge of managing a gambling establishment and the second appellant was, the third defendant who faced a charge of assisting in the management of a gambling establishment

2. The premises in question were situated in the basement of a building in Nathan Road occupied by a corporate body known as Cambridge Association Ltd.

3. The prosecution evidence was to the effect that two police parties visited the premises on two days about a week apart. On each occasion, on entering the premises, they were either offered or they, inquired about the provision of mahjong playing facilities. On one occasion, an officer was asked to complete an application for membership form and was granted instant membership. On the other occasion, there was no membership application procedure followed, but the defence suggestion was that an employee at the establishment recognised one of the officers as a person entitled to play on a previous occasion by virtue of membership, or that they were allowed to play because an employee recognised them as police officers. In any event the officers were on both occasions ovided with mahjong playing facilities for which on the first occasion they paid $45 for the privilege and on the second $49 The premises were raided under a gambling authorisation issued pursuant to Section 23 of Gambling Ordinance. In the course of that raid a considerable quantity of gambling equipment such as mahjong tiles, chips and playing cards, were found on the premises. At the time of the raid some 21 separate rooms were occupied by people playing mahjong or cards and there were some 85 people playing altogether. In each room at least one person playing was in possession of a membership card.

4. The evidence for the defence was that Cambridge Association Ltd. was an incorporated body which had as one of its objects of Association the provision of mahjong playing facilities for its members on a non-profit basis.

5. One of the defendants gave evidence that mahjong playing was allowed on the premises, but not for the purposes of gambling.

6. The first appellant in a caution statment said, that he was an employee in a managerial capacity on the premises and that the rooms were "only valid to members for playing mahjong; if they are found to use other way to gamble, e.g. playing poker we will immediately tell them not to play and tell them to Leave". None of the police parties either engaged in gambling themselves nor did the police see anyone on the premises, playing mahjong with money changing hands.

7. The learned magistrate came to the conclusion that mahjong was being played for money on the premises and that the finding of the gambling equipment in the course of the raid under the authority of Gambling Ordinance raised the presumption that the premises were a gambling establishment. Having found that the Cambridge Association was either a society registered under the appropriate ordinance or exempted from registration, she also found that the facts mentioned in paragraphs (a), (b) and (c) of section 3(2) had been established.

8. Section 3 of the Gambling Ordinance makes all gambling unlawful, unless it is conducted in one or other of the ways mentioned in sub-sections 2 to 8 of that section. The gambling was lawful in this case, in view of the magistrate's findings, only if paragraph (d) of sub-section 2 applied. That means, of course, that the gambling was unlawful on those premises unless it was not being conducted by way of business. The learned magistrate found that it was and that the two appellants were as to one, managing, and as to the other, assisting in the management with full knowledge that the premises were a gambling establishment. She therefore convicted the appellants.

9. In appealing against the conviction, the appellants through their counsel Mr. Wright, relied on five main grounds.

10. The first ground alleges that they were, wrongly convicted in that the magistrate failed to give proper weight to the evidence in both the Crown and the defence cases capable of rebutting the presumption raised by Section 19(1), in that she did not take account of the fact that on the evidence there was probably no gaming in the establishment at any relevant time.

11. The learned magistrate in her statement of findings dealt with that contention because it  had been. raised at the trial. She said this:

"There was unchallenged evidence that there were people playing mahjong in 19 rooms and people playing cards in two rooms. It would challenge my common sense to believe that these people were not playing for winnings in money or other property. One of the defendants gave evidence that chips of different colours were provided for this room. She also said that the different coloured chips represented different monetary values. Although later she gave oral evidence those chips were for scoring, I did not believe that. I believe therefore that gambling did take place in the premises."

In saying that the learned magistrate was doing no more than echoing the words of Cons J. in Leung Sui, (1977 HKLR 544) where he said this:

"No actual cash was found on any table;" only chips, but it would be naive to close one's eyes to the realities of the situation, These were not families having a night out with their children, they were groups of men who had deliberately gone to the hotel to play The chips were down. In these circumstances, it would, in my view, be an unreasonable doubt to think that in none of those games was the enjoyment of the finer niceties of play not spiced by the addition of some financial interest

There was therefore a sound judicial reason for the learned magistrate to conclude on the basis of the evidence before her - evidence stronger by far than that which Cons J. referred to in the decision I have just cited that there was at least some gambling on the premises. In addition of course, although the learned magistrate did not refer to it there was the implied admission made by the man acting in a managerial capacity, that gambling was allowed in the premises provided it was restricted to mahjong. I, therefore find no substance in the first ground.

12. The second ground alleges (i) that in relation to Section 3(2) and Section 3(3) (a) (3), the learned magistrate failed to consider properly what constituted private premises under Section 3(2); and (ii) that she found that membership was a sham on evidence insufficient" to support such a finding. Alternatively, ground 2 alleges that she failed to consider that although the membership provisions might, have been a sham, that fact did not necessarily exclude the application of other evidence to prove the premises were private premises.

13. In my view, the question as to whether or not the premises were private premise, does not arise in this case. Once the learned magistrate was of the view that the premises were occupied by a society registered or exempted from registration under the Societies Ordinance, they were not private premises for the purposes of Section 3. It is true, as Mr. Wright has pointed out, that private premises are defined in the Ordinance as, premises to which the public have access only by permission of the owner, tenant or occupier of the premises, but that definition is to be read subject to the opening words of Section 2 in which the definition appears, that is that the term has that meaning unless the context otherwise requires. In Section 3 it seems to me that the context does otherwise require. As a result Section 3(2) has no application in this case.

14. If I am wrong about that., there is still the provision in Section 3(2) that gaming on private premises is lawful only if it is not promoted or conducted by way of business. Here, there is no doubt that the gaming was conducted by way of business because a fee was charged for the hire of the tiles. Cons J. pointed out, in the case to which I have just referred, that the wording of Section 3(4)(d) makes it clear that the provision of tiles for reward constitutes the promoting or conducting of the game by way of business on the premises. A fee having been charged for the provision of the tiles, the gaming is unlawful even if it be found that the premises are private premises.

15. As to Section 3(3)(d), the same considerations apply because, by paragraph (d) the game is lawful only if it is not promoted by way of business. Here, for the reasons I have just mentioned the evidence showed it was promoted or conducted by way of business. Accordingly the gaming was not made lawful by the operation of sub-section 3. The premises were not licensed as a mahjong establishment so there was no basic at all on which the magistrate could possibly have found that the gaming was lawful. There was, therefore, no basis on which she could possibly have found that the premises were not being used as a gambling establishment.

16. The third ground of appeal contends that the game was not promoted or conducted by way of business because the occupier, Cambridge Association Ltd. was a non-profit organisation. During the defence evidence, the prosecutor in cross-examination elicited evidence that Cambridge Association Ltd. had an arrangement with a management company under which that management company for a fee extending to some hundreds of thousands of dollars a year, managed the premises on its behalf and there was no suggestion that it was a non-profit organisation. The submission implies that a non-profit organisation could not conduct gaming byway of business. That in my view does not follow at all because Section 3(4)(d) implies that the charging of a ice for tiles constitutes business conduct. There is no substance' in the submission.

17. The fourth ground attacks the magistrate's finding that the two appellants knew that the premises were being used as a gambling establishment.

18. The evidence was that the first appellant had been employed on the premises for some three years and five months as Assistant Manager. there was no suggestion in the evidence that the premises had ever been used for any purpose other than mahjong and card playing.

19. In addition, there was his caution statement in which he made the remark earlier quoted. That could only be interpreted as meaning that he did know gaming facilities have been provided on the premises.

20. The second appellant had been employed there for only three months at the time of the police raid but in her caution statement, she said that she knew about the method of for the playing of mahjong she herself had calculated the bills and she said that the routine was to ask customers whether they had a membership card or not, that she made registration arrangements for those who did not and then showed them to the mahjong rooms to play mahjong. Clearly, she knew that the premises were being used for the playing of mahjong over a period of three months. As the learn magistrate said "it would challenge common sense to hold that in those circumstances she did not know or may not have known that unlawful gaming was going on". There is therefore nosubstance in that ground

21. The other ground is the general ground that in the circumstances the conviction was unsafe and unsatisfactory but, since the "circumstances" have grounds without merit, this ground too has no substance. The result is that there is no merit in the appeal of either appellants and both appeals must therefore be dismissed.

Representation:

Mr. John Wright (Knight & Ho) for 1st & 2nd Appellants.

Mr. D. Kilgour, C.C. for Crown/Respondent.