The Queen v. Yeu Chui Fook

HCMA000634/1985

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 634 OF 1985

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BETWEEN

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Coram:  Hon. Jones, J. in Court

Date of Hearing: 20th August 1985

Date of Delivery of Judgment: 20th August 1985

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JUDGMENT

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1. This is an appeal against conviction and sentence by the appellant in respect of an offence of gambling in a gambling establishment contrary to Section 6 of the Gambling Ordinance Cap 148. The appellant was fined $1,000 and ordered to pay costs of $500.    He was also sentenced to one month s imprisonment suspended for a period of 2 years. Before the Magistrate the appellant was unrepresented.

2. The facts reveal that on the 7th May 1985 the appellant was present with a number of other people in the wholesale fish market in Western District where it was alleged that they were engaged in unlawful gambling. The magistrate found that the gambling did take place and was being conducted in a gambling establishment. A Police raid was carried out pursuant to a gambling authorisation issued under Section 23(2)(a) of the Ordinance during which the appellant was seen to escape from the premises. Gambling equipment was seized by the Police at the scene.

3. At the conclusion of the case for the prosecution the magistrate found that the appellant had a case to answer. He explained to the appellant his rights and the appellant elected to remain silent. The magistrate accepted the evidence of the prosecution witnesses and invoked the provisions of Section 19(2) of the Gambling Ordinance which raises a presumption. The subsection reads:-

"(2)             Where in any proceedings under section 6 it is proved that a person was found in a gambling establishment or that a person escaped from a gambling establishment on the occasion of its being entered under section 23(2)(a), such person shall until the contrary is proved be presumed to have been gambling therein."

4. Mr Sweetnam who appeared for the appellant limited his submission to two grounds of appeal. First that the learned magistrate failed to inform the appellant of the effect of Section 19(1)(c) of the Ordinance in particular the presumption arising thereunder. Section 19(1)(c) reads:-

"(1)             Where in any proceedings under this Ordinance it is proved that -

it shall be presumed until the contrary is proved that the premises or place are or is a gambling establishment."

5. Second that the learned magistrate failed upon finding that the premises was a gambling establishment, to inform the appellant who was unrepresented at the trial of the effect of the presumption under Section 19(2) of the Ordinance, a Section on which the learned magistrate based his conviction. Mr Sweetnam cited Ching Gee v. the Queen 1976 Criminal Appeal No. 432 a case relating to the possession of dangerous drugs for the purposes of unlawful trafficking where a presumption arose. In his judgment Huggins, J.A. said:-

"Nevertheless the appellant was not warned of the possibility that the presumption would result in his conviction and had he been warned he might have put his case differently."

6. In this case, the record is ambiguous as to whether or not the magistrate explained the effect of the presumptions to the appellant. In those circumstances, the appellant may well not have appreciated the full significance of his failure to go into the witness box to give evidence. As a result I am unable to uphold the conviction.

7. I have been addressed by both Counsel as to whether the case should be remitted to the magistrate. In my view in this particular case I am of the opinion that the case should be remitted.

8. Accordingly the conviction will be quashed and the sentence is set aside. As the trial magistrate is no longer with the judiciary, I direct that the case be reheard by another magistrate.

Representation:

Mr N. Sweetnam (Terence Lau & Co) for Appellant

Mr W.P. Boucaut (Legal Department) for Respondent