HKSAR v. Ng Yau Tai

HCMA000034/2003

HCMA34/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.34 OF 2003

(ON APPEAL FROM TWCC 3236 OF 2002)

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Coram: Hon Pang J in Court

Date of Hearing: 14 March 2003

Date of Judgment: 21 March 2003

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J U D G M E N T

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1.The appellant Ng Yau Tai appeared before a magistrate on a charge of operating unlawful gambling in a place not being a gambling establishment, contrary to section 13(1) of the Gambling Ordinance. He pleaded not guilty to the charge and was convicted after trial. He now appeals against his conviction.

2.The incident took place in the afternoon of 29 October 2002 at a park in Kwai Fong Estate, Kwai Chung, New Territories. The police mounted a surveillance operation at the location and a number of people were found playing the game of Sap Sam Cheung. The appellant was observed to have arrived at the location and walked around the participants of the game. He was also seen to have taken $20 from the outgoing bankers for every three rounds of game. The players and the appellant were subsequently arrested by the police. Under caution, the appellant admitted that he was gambling at the location but he denied any part in the operation of the gambling activities.

3.The prosecution called two witnesses at the trial. The first witness was the police officer who was responsible for the surveillance and he described the activities of the appellant. The surveillance lasted for about 20 minutes and was recorded on video tape. The tape as well as the statement under caution made by the appellant were produced as evidence at the trial. The appellant elected not to give evidence and no defence witness was called.

4.The appellant was legally represented in the court below. The defence case was fought on a basis that even putting the prosecution evidence at its highest, such evidence does not support an irresistible inference that the appellant's role was that of an operator. The learned magistrate, however, found otherwise.

5.Mr Polson for the appellant advanced two grounds of appeal. The first ground encompasses both legal and evidential issues. It is said that the learned magistrate misdirected himself on the meaning of the word "operator". Further, there was no evidence to suggest the money collected by the appellant were commissions levied on the banker of the game. There is simply insufficient evidence for the learned magistrate to conclude that the appellant was in overall control of the operation to the exclusion of others who might be assisting in its operation.

6.The second ground is that it was improper for the learned magistrate to receive into evidence the part of the admitted facts containing the phrase "acting on information". Mr Polson submitted that this phrase is highly prejudicial and hence should be ruled inadmissible. The ensuing the conviction is therefore rendered unsafe and unsatisfactory.

7.The term "operator" is not defined in the Gambling Ordinance. Its meaning can, however, be found in R. v. Tang Hang Chung, Crim. App.565/1982 (unreported), where McMullin V-P said :

"... In section 5 the 'operator' is put in a category by himself, distinct from the person who manages or otherwise has control. It seems reasonable to suppose that the legislature viewed the operator as the person in overall control, the person with the final say in how, where and when, and even whether the enterprise is to be carried on. ..."

In R. v. Chan Hang Wan, HCMA423/1996, Chan J (as he then was) made the following observation as to what may constitute operation :

"... The actual exercise of control alone may not be operation but may be an indication of operation, and sometimes an important piece of evidence for the court to draw the necessary inference that a person was in operation. The inference to be drawn by the court depends of course on the evidence of each case. ... It is also usual to have one or more persons who are physically present and actually exercising some control at the time. If there are more than one person, then each person may be playing a different role, some more important and some less important."

The above passage confirms the view taken by Barker JA in R. v. Mak Tat Kue, HCMA162/1983 (unreported), that there may be more than one operator in any one unlawful gambling set up. The learned magistrate clearly had the Tang Hang Chung and Chan Hang Wan cases in mind when he addressed himself of the meaning of the word "operator" and then applied the correct test. The complaint levelled by Mr Polson against the magistrate on this issue is entirely without merit.

8.Turning now to the evidence. It was agreed by way of section 65C of the Criminal Procedure Ordinance that :

"... At 1702 hrs on the same day, D1 arrived at the above location. He walked around near the D2-5 & D7 and kept looking at the nearby locations and the passerby. PW4 also observed that he drew $20-HKD from the bankers for every three rounds of games. ..." (emphasis added)

It was also agreed that :

"... D1 was arrested for 'Operating Gambling in a place other than a Gambling Establishment' by PW1 with commission money $149-HKD seized by PW4. ..." (emphasis added)

9.It was argued on behalf of the appellant that the activities of the appellant could only amount to assisting in the operation of unlawful gambling. That being the case, it follows that since the repeal of section 13(1)(b) of the Gambling Ordinance in June 2002, assisting the operation of unlawful gambling is no longer a criminal offence. The learned magistrate had failed to consider sufficiently or at all the implications of legislative amendments.

10.Suffice it to say that it was agreed that the money collected by the appellant from the bankers was labelled as commission money. The activity of collecting money is, in my view, consistent with the activities of an operator of unlawful gambling. The learned magistrate was perfectly entitled to infer from the evidence that the appellant was not a gambler but an operator. The criticism levelled by the appellant's counsel against the learned magistrate's approach to the evidence is again without merit.

11.The second ground of appeal is directed at the use of the phrase "acting on information" as contained in the facts admitted pursuant to section 65C of the Criminal Procedure Ordinance. It is said that such evidence is inadmissible and even if it is admissible the learned magistrate should have stated clearly in his Statement of Findings that the use of this phrase did not have any adverse effect on the appellant. Mr Polson relied on R. v. Chow Hoi Ping, Crim. App.322/1989. In that case the word phrases "Target Trafficker" and "Dangerous Drugs Trafficker" were used by the police witnesses to describe the appellant in that case. In allowing the appeal, Power VP said :

"The use of the term 'target', if uncorrected, is of course much more objectionable in a jury trial. A judge sitting alone corrects the irregularity by simply saying that he puts the matter from his mind when considering the evidence. Indeed where a judge sitting alone remains silent, there is no more than a passing reference of this nature, an appeal court might well be prepared to proceed upon the assumption that he has not allowed himself to be influenced by such a reference."

12.The situation in the present case is clearly distinguishable from Chow Hoi Ping. The term "acting on information" can best be described as neutral as it does not have the effect of directing the attention or even has the tendency of connecting the appellant to the unlawful gambling activities let alone to say that it identifies the appellant as the person operating the unlawful gambling surveillance. The phrase used merely describes the basis upon which the police launched the operation. There is no reference at all to the identity of the person providing the information nor does it disclose the nature of the information. The phrase is clearly admissible. I am unable to see how it can adversely affect the appellant's case in the court below. Again I find there is no substance on this second ground of appeal.

13.For the reasons given above, the appeal against conviction is dismissed.

Representation:

Mr M.J.B. Arthur, SGC of the Department of Justice, for the Respondent

Mr Ian Polson, instructed by Messrs Jal N. Karbhari & Co., for the Appellant