The Queen v. Cheung Sun Ming and Others
Read the full judgment text of HCMA 1033/1986 on BabelCite. This High Court CFI judgment.
1. CHEUNG Sun-ming ("D.1") was convicted of managing a gambling establishment, contrary to section 5(b) of the Gambling Ordinance, (Cap. 148).
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HCMA001033/1986
BETWEEN:
Coram: Roberts, C.J. Date of judgment: 6th & 13th November, 1986 ----------------- JUDGMENT ----------------- Preliminary 1. CHEUNG Sun-ming ("D.1") was convicted of managing a gambling establishment, contrary to section 5(b) of the Gambling Ordinance, (Cap. 148). 2. CHUNG Lin-oi ("D.2") and LAM Lai-ping ("D.3") were convicted, at the end of the same trial, of the offence of assisting in the management of a gambling establishment, contrary to section 5(c) of Cap. 143. 3. They were fined $7,500, $2,500 and $2,500 respectively. All appeal against conviction, but none appeals against sentence. Facts 4. P.C.23271 ("P.W.1") went to the premises of the Pui Suen Camera & Audio Staff Association, on the Ground Floor of Beverley Commercial Building, Chatham Road, Kowloon, with three colleagues at about 3.00 p.m. on 24th April, 1986. 5. It is to be noted that this Association has been duly registered under the Societies Ordinance. 6. On entry into the premises, P.W.1 was greeted by D.2, who asked if he had come to play mahjong. When he replied 'Yes', D.2 asked if he had a membership card. When he replied that he had not, D.2 gave him an application form which he completed. 7. D.2 then took P.W.1 and his colleagues into Room 14, where mahjong equipment was provided. Soon afterwards D.2 returned to the room with a membership card which she gave to P.W.1. P.W.1 and his colleagues played mahjong for about three hours. While they were there, a police party arrived, finding 42 men and 17 women in the premises, among them 17 staff members, including the three defendants. 8. 40 of the 42 customers were playing mahjong and the other two were watching. 9. The magistrate, having examined the evidence with care, came to the following conclusion-
10. Once this conclusion of fact, with which I see no reason to disagree, had been reached by the magistrate, the burden then shifted to the defendants to establish that what would otherwise have been unlawful gambling was lawful by reason of the exception contained in section 3(4) of the Gambling Ordinance. 11. The magistrate, in my view correctly, came to the conclusion that the defendants had not established a defence under that section, it being clear, by virtue of section 18 of Cap. 148, that the burden of showing that gambling is lawful by virtue of section 3 lies on the defendants. 12. Although the written grounds of appeal against conviction asserted that the magistrate had erred in that he did not, or did not sufficiently, consider the defence to the charges contained in section 3(4) of Cap. 148, this ground was abandoned at the outset of the hearing before me. Management of a gambling establishment 13. As a result, the only substantial ground of appeal argued was that the evidence had not established either that D.1 had managed the gambling establishment or that D.2 and D.3 had assisted in the management of a gambling establishment. 14. According to the evidence of P.W.1, he saw D.1 when he first arrived at the premises, in the living room. He described him as walking to and fro. He did not pay attention as to whether or not D.1 said anything. This appears to be the only time at which P.W.1 saw D.1. 15. The other evidence against D.1 consisted of his employment card, which showed him employed as a captain at the counter of the restaurant department and a statement. 16. On the evening of 24th April, the day of the police raid, a statement in the following terms was taken from D.1 after caution -
17. It was established by evidence that food and drink was provided to the mahjong players in the rooms of the establishment, of which there were 29. 18. I do not think that it was seriously in issue that the main purpose of the premises was the playing of mahjong and that the provision of food was secondary to that purpose. 19. The magistrate set out his reasons for convicting D.1, who gave no evidence, at page 47. He found that D.1 had admitted in his statement that he was employed in the post of manager and that he was responsible for the administration of the restaurant and the management of the members' room service. He concluded -
20. Counsel for D.1 submitted that there was no evidence that D.1 was managing the gambling and that the only reasonable inference to be drawn from the evidence was that he was managing the restaurant and that the Crown had not established that he was managing the illegal activities which were being conducted in the rooms. 21. The Crown relies upon the contents of the statement itself, which includes an admission by D.1 that he was "the manager", and that he was responsible for the administration of the restaurant and the management of the members' room service. 22. It was, of course, open to him to give evidence to explain what he meant by the words used in his cautioned statement. He chose not to do so. In the absence of any such contrary evidence, I see no reason not to give the words their ordinary meaning and to regard the statement of D.1 as an admission that he was "the manager" of the establishment. Once that conclusion is reached, it seems to me to follow inevitably, from the size of the establishment and of the fact that the provision of food and drink was subsidiary to the playing of mahjong, that he must have known that the gambling was conducted, by way of trade or business, for the benefit of the Association. 23. The magistrate summarizes his conclusion in relation to D.2 in the following terms -
24. I was referred to the case of TAM Kim-leung and Others v. The Queen(1), in which I commented that -
25. Although that case was concerned with a vice establishment, rather than a gambling one, I consider that the same tests can properly be applied in both circumstances, so far as the determination of whether or act a person is assisting in the management of an establishment is concerned. 26. Applying these tests to the evidence relating to D.2, I agree with the magistrate that D.2 must have known that mahjong playing for money was taking place on the premises. I also am satisfied that by issuing membership cards and opening P.W.1's bill, she was performing services which were directly related to the facilities for gambling provided by the Association, and that she was performing more than menial and routine activities. 27. The magistrate summarizes the case against D.3 as follows -
28. D.3 had given evidence to the effect that when P.W.1 paid the bill this was for food, with the exception of a charge for $10 which was for the mahjong playing. 29. The magistrate rejected this explanation, accepted the evidence of P.W.1 that no food or drink had been supplied to him or his colleagues, and found that D.3 was performing an integral and direct function in furthering the purpose of the premises and thus was assisting in the management of a gambling establishment. 30. The magistrate believed P.W.1's account of events inside the premises and disbelieved D.3. This means that he has accepted the evidence that nothing was supplied to P.W.1 in the room and that the whole charge of $42.20 was for mahjong and not mainly for the supply of food and drink. 31. It is sometimes a matter of difficulty to decide whether an employee in an establishment is assisting in its management or is merely carrying out routine duties of a menial nature. 32. In relation to D.3, I am of the opinion that this was a borderline case, but that there was evidence on which it was open to the magistrate to decide that she was assisting in the management of the premises. 33. I therefore dismiss the appeals of all three appellants against their conviction. (1) Crim. App. 1081 of 1981 Representation: Mr. E.F. Le B. Laskey (Francis Yim & Co.) for all Appellants Mr. T. Jenkyn-Jones, Senior Crown Counsel, for Crown. |