Wong Wah-sin and Another v. The Queen

CACC000040/1982

BETWEEN:

Coram: Roberts, C.J.

Date: 11 March 1982

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JUDGMENT

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1. [Gambling Ordinance - presumptions in Section 19.]

2. The appellants were convicted of engaging in bookmaking, contrary to section 7(1)(c) of the Gambling Ordinance and were each fined $4,000. The appealed against conviction only.

Prosecution Case

3. On the afternoon of the 24th January, 1981, a police party, armed with a gambling authorization issued under section 23 of the Gambling Ordinance, visited premises at 225A Portland Street, Mongkok.

4. In a small room at the rear of the premises were the two defendants. On the table in this room were two telephone sets, two tape recorders, a radio and about a hundred suspected betting slips. One of the tape recorders was connected to each of the telephones. The recorders were switched on.

5. Sergeant Lui gave expert evidence that the slips which were seized from the room were "betting slips on horses". His evidence was not challenged.

Submission of no case

6. At the close of the prosecution case, the solicitor for the defendants submitted that there was no case to answer. The magistrate found that there was.

7. According to the solicitor's recollection, which the magistrate does not challenge, the magistrate commented, at the time of his ruling that there was a case to answer, that it was not a strong case.

8. It was argued that this must have shown that the magistrate could not have been satisfied of the guilt of the defendants beyond reasonable doubt since, because the appellants gave no evidence and called no witnesses, there was no further evidence to strengthen the case.

9. When finding that there is a case to answer, a magistrate is ruling only that there is evidence on which, if it were believed, a reasonable magistrate would convict. He may thereafter acquit, even if no further evidence is adduced, if he concludes that the evidence which he does accept falls short of the higher standard of proof which is required to justify a conviction.

10. It is a matter of speculation as to what the magistrate meant by commenting that it was not a strong case. He found it strong enough to found a conviction. So perhaps he meant that he did not think it to be an overwhelming case.

Effect of evidence

11. No evidence was given by the appellants. Although a defendant against whom a case to answer is found is not obliged in law to give evidence, he should realize that, in practical terms, he is in a vulnerable position, since his failure to do so leaves the magistrate with no alternative version which may throw doubts on the prosecution evidence. In view of the testimony of the Crown witnesses, it is hardly surprising, in the absence of explanation, that the magistrate convicted.

12. As a matter of common-sense, what other conclusion could have been expected? Two men are found in a room, sitting at a table, on which were telephones linked to tape recorders and about a hundred betting slips.

13. When I asked the solicitor for the appellants what the latter were doing if they were not "engaged in bookmaking", he could only suggest that they may have been "assisting in bookmaking"; although this is contrary to another subsection (7(l)(c)), he argued that as they were not charged with that offence they must be acquitted.

14. I have no doubt that the magistrate was entirely justified in finding that the appellants were engaged in bookmaking, in view of the presence of the hundred betting slips, which had been filled in, and of the other equipment, which would be suitable for the recording of bets phoned to that office. I therefore dismissed the appeal.

Presumption

15. Crown Counsel submitted that, in addition to the proved facts which were more than sufficient to justify a conviction, he could have sought assistance from the following presumption, contained in section 19 of the Gambling Ordinance -

16. "Gambling establishment" is defined in section 2 as including "any premises or place ... kept or used ... for the purposes of or in connexion with unlawful gambling ......".

17. "Gambling" is defined in section 2 as including "bookmaking" and "gambling equipment" includes betting slips.

18. The presumption, that the premises are a gambling establishment, thus arises if the police enter in accordance with a warrant issued under section 23 and if betting slips (which are "gambling equipment") are discovered in those premises.

19. The effect of the presumption is that the premises concerned are presumed to be kept or used for the purpose of or in connection with unlawful gambling (which includes "bookmaking") though not that persons found on the premises are presumed to be engaged in gambling.

20. However, the presumption as to the use of the premises for bookmaking may properly be taken into account in deciding whether the accused are in fact engaged in bookmaking. If the premises are presumed to be kept for the purpose of bookmaking, it is that much more likely that persons found therein, with equipment which is related to bookmaking, are engaged in that activity.

21. In this case, the magistrate did not rely on the presumption, the Crown having agreed that it did not apply. He thus did not base his decision upon it; nor did I. I was satisfied that there was evidence to justify his finding of guilt, without any reference to the presumption.

Representation:

D.B. Gunston (Hampton, Winter & Glynn) for Appellants.

C.W. Reid, Dep. Pr. Crown Counsel, for Respondent