The Queen v. Poon Sze-tak and Others

Case No.CACC 1012/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC001012/1983

Criminal Appeal

No. 1012 of 1983

Headnote

Gambling - charges of bookmaking under Section 7(1)(a) of the Gambling Ordinance - police party entering premises pursuant to an authorisation issued under Section 23 of the Gambling Ordinance - entry obstructed - gambling equipment and means of destroying it found - presumption that premises was a gambling establishment arises pursuant to Section 19(1) of the Ordinance but no presumption that persons found in the premises were bookmaking.

Date of Hearing : 26th September, 1983

Date of Judgment : 26th September 1983

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 1012 of 1983

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Between

	The Queen	Respondent
	and
	1. POON Sze-tak	Appellants
	2. WONG Moon-choi
	3. SHUM Yim-man
	4. WONG Chen-moon
	5. LAM Kam-fat
	6. CHEUNG Yiu-kuen
	7. LI Yiu-leung

_________________

Coram: Hon. Penlington, J. in Court

Date: 26th September, 1983

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JUDGMENT

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Introduction

1. This is an appeal against convictions on charges of Bookmaking contrary to Section 7(1)(a) of the Gambling ordinance, Cap. 148 (hereinafter referred to as "the Ordinance"). All the defendants were represented in the court below and pleaded not guilty. Each gave evidence on his own behalf.

The Facts

2. The magistrate in his very clear and well set-out findings was satisfied that on the 28th June 1983 a police party raided Flat 5, 15th floor, Block 12, Mayfair Godown, Tsing Yi, pursuant to an authorization issued under Section 23 of the Ordinance. He found that entry was delayed but that when the police party did succeed in entering the flat equipment in the form of tape-recorders, 3 telephones, calculators and other equipment referable to bookmaking was found in a locked room at the back of the flat. Means of destroying betting equipment, in the form of a bucket of ink, was found in the toilet. There were illegible papers in it. Betting slips were seen to be thrown from a bedroom window of the flat and were retrieved from the ground outside. All the defendants were in the flat at the time and the 5th defendant, who was the tenant, had a key to the locked rear room. Each defendant gave evidence of being in the flat at the invitation of the 5th defendant. Each denied that he had been bookmaking or knew of the contents of the back room. The magistrate did not believe them and convicted them of the charge as laid, holding that he was satisfied the flat was a gambling establishment and it was for the defendants to give a satisfactory explanation for their presence in it.

Grounds of Appeal

3. Counsel for all the appellants argues that the magistrate has directed his mind to the question of whether the appellants were operating or assisting in the operation of a gambling establishment, an offence under Section 6 of the Ordinance, and not to the offence of bookmaking under Section 7(1)(a), with which they were charged. He submits furthermore that the evidence against each defendant must be considered separately. The magistrate has simply lumped them all together and this he should not have done. It is also submitted that the magistrate has incorrectly directed himself as to the presumptions which arise persuant to Section 19 of the Ordinance and that in this case there was no presumption of bookmaking.

Finding of Facts

4. I am satisfied that the magistrate was quite justified in coming to the findings of fact which he did. There was ample evidence that the police party was deliberately delayed from entering the flat. I am also satisfied that the betting slips which were thrown from the window, although only recovered from the ground outside, were "found within the premises", within the meaning of Section 19(1)(c) of the Ordinance and means of destroying gambling equipment in the form of the bucket of ink was found in the premises.

5. Each of the defendants gave evidence in which they gave an explanation for their presence in the premises and they denied that they were taking part in any bookmaking. The magistrate having heard that evidence did not believe them and he was perfectly entitled to come to that conclusion.

Presumptions

6. The magistrate said in paragraph 5 of his Statement of Findings

"Since the raid was carried out under Section 23 of the Ordinance, then on my findings of fact the presumptions afforded by Section 19 applied. It was for the Defendants to satisfy me on the balance of probabilities that the premises were not a gambling establishment and they were not gambling. "

7. Section 19(1) provides that if police officers enter premises persuant to an authorization issued under Section 23 and their entry is prevented, obstructed or delayed or if means of concealing, removing or destroying gambling equipment are found or if gambling equipment itself was found therein it shall be presumed that the premises are a gambling establishment. Sub-section (2) goes on to state that in any proceedings under Section 6 any person found in such a gambling establishment shall, until the contrary is proved, be presumed to have been gambling therein. (Section 6 of the Ordinance provides that it is an offence for a person to gamble in a gambling establishment.) Here however the charges were not laid under Section 6 but under Section 7(1) (a), which is the section relating to bookmaking. The offence of bookmaking is much more serious and carries a far higher maximum penalty than gambling in a gambling establishment.

	Sub-section (3) of Section 19 provides that :
"	(3) For the purposes of any proceedings under section 7(1)(c) any person who is proved to have had in his possession one or more than one betting slip shall, until the contrary is proved, be presumed to have been assisting another person in bookmaking. "

Here the proceedings were brought under Section 7(1)(a) of the Ordinance and therefore that presumption also could not arise even if the magistrate was satisfied that betting slips were found in the possession of any of the defendants; There was no such finding.

8. In Yuen Chi-ming and ors. v.R. G.A. 414 of 1981 Rhind J.considered the presumptions applicable to charges of operating or permitting a gambling establishment under Sections 5 and 15 of the Ordinance and said this:

"	On the facts of the present case, this presumption came into play because the police party was obstructed and delayed in getting into the premises, and also because gambling equipment was found on the premises which had been entered pursuant to an authorisation under section 23(2)(a) of the Ordinance. The learned magistrate's finding that the presumption had not been rebutted cannot be faulted.
	For the purpose of proving a charge contrary to either section 5 or section 15 of the Ordinance, this presumption is, however, of limited utility. Through the presumption, the essential ingredient of the premises in fact being "a gambling establishment" can be established; the presumption does nothing, though, to prove that a defendant knew that the premises were "a gambling establishment". That the defendant must have known that the premises were "a gambling establishment" is not open to dispute, and it is up to the prosecution to prove that he had such knowledge. How the prosecution proves knowledge is a trite topic in the criminal law. "

9. That must be correct. Furthermore here the prosecution had to prove not mere knowledge but active participation in bookmaking. There were no presumptions to assist them in that essential step.

Proof of Bookmaking Required

10. The prosecution elected to charge the defendants with a particular form of gambling, bookmaking, and it seems to me that they had to prove bookmaking as defined in the Ordinance i.e. the soliciting, receiving or negotiating of a bet by a way of trade or business. It was certainly proved that the premises were a gambling establishment and had the charges been brought under Section 6 very different considerations would apply. However they were not so laid and there was no application to amend them Gambling, as defined in Section 2 of the Ordinance, includes bookmaking.

11. The only evidence against the 1st, 2nd, 3rd, 4th, 6th and 7th accuseds was that they were in the premises when they were entered under the authorisation. It was therefore very important that the magistrate should direct himself correctly as to what, if any, presumptions arose against them and I am satisfied he did not do so. He considered that once the prosecution had proved that the premises were a gambling establishment it was up to the defendants to show they were not gambling therein. That is only so if the charge is under Section 6. When the charge is under Section 7(1)(a) the Court must be also satisfied that the defendant, taken individually, was bookmaking in those premises and there is no presumption that he was.

12. The appeals of the 1st, 2nd, 3rd, 4th, 6th and 7th defendants must be allowed. Their convictions are quashed and the fines. if paid, refunded. The evidence against the 5th defendant being considerably stronger, the charge against him is remitted back to the trial magistrate to consider whether in the light of the opinion contained in this judgment 5th defendant should be convicted.

(R.G. Penlington)

Judge of the High Court

Representation:

G.A. Andree' Wiltens, Counsel for the Crown.

Adrian Bell instructed by H.M.So & Co. for Appellants.