The Queen v. Chan Wong Sun

HCMA000691/1985

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 691 of 1985

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BETWEEN

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Coram: The Hon. Mr. Justice Jones in Court

Date of Hearing: 28th August 1985

Date of Delivery of Judgment: 28th August 1985

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JUDGMENT

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1. This is an appeal by the appellant against his conviction by a Magistrate on the 23rd May 1985 of a charge of Bookmaking contrary to Section 7(1)(a) of the Gambling Ordinance Cap. 148.

2. The appellant was sentenced on the 10th June 1985 to a term of imprisonment for 6 month suspended for 18 months and a fine of $35,000. There is no appeal against sentence.

3. The facts reveal that as a result of a gambling authorisation a police party went on the 19th January 1985 at 5:00 p.m. to 38 Ping Yeung Tsuen, Takuling, New Territories. The door of the premises was open and the appellant was seen standing in the middle of the living room. When the police revealed their identity, the appellant turned away and pulled a telephone wire which led to a telephone extension which was connected to the main telephone in the Cockloft. The identity of the subscriber was not ascertained. The police searched the premises and found betting slips, cassette tapes and other paraphernalia associated with bookmaking. The appellant had in his possession a key to the door of the premises. However, there was no evidence that he was the owner or tenant. The police remained at the premises for about an hour but no telephone calls were received which was not surprising as the main telephone was dead.

4. After his arrest the appellant made a cautioned statement to the police, but the learned magistrate ruled it to be inadmissible at the trial. The appellant gave evidence that he went to the premises to make a telephone call but before tie was able to do so, the police arrived. He denied pulling out the wire of the telephone, and also said he did not produce the key to the door of the premises. He claimed that he was not aware that the premises had been used for bookmaking.

5. The learned magistrate accepted the evidence for the prosecution that the premises had been used for bookmaking that the appellant had deliberately broken the telephone wire and that he had produced the key to the door. Upon the evidence he drew an inference that the appellant had been engaged in bookmaking.

6. Mr. Mullick who appeared for the appellant conceded that the circumstances, aroused suspicion but submitted that the appellant's mere presence at the scene did not justify, a finding of guilt for there was no evidence that the appellant had actually participated in the commission of offence.

7. Bookmaking is defined in Section of the Gambling Ordinance as follows:-

"2.    In this Ordinance, unless the context otherwise requires -

8. Objection was also taken by Mr. Mullick to the dates set out in the amended charge which alleged that the appellant engaged in bookmaking from the 19th October 1984 to the 19th January 1985. There was no evidence of any bookmaking before the 19th January 1985, but if there was satisfactory evidence that bookmaking took place on the 19th January 1985 the conviction should be upheld for it is only necessary to prove that bookmaking took place on one occasion.

9. No presumption arises under Section 7(1)(a) with the result that the onus is upon the Crown to prove the charge beyond all reasonable doubt. There was abundant evidence to show that the premises were used as a gambling establishment. However, Mr. Mullick asserted that the learned magistrate did not draw the only inference possible that the appellant was engaged in bookmaking. Apart from his presence at the scene which is insufficient to support a conviction, the only evidence that tends to incriminate the appellant was by his action in cutting the wire and his possession of the key.

10. In the matter of drawing inferences, I pray in aid the words of Huggins J. as he then was in the case of Chan Yuet Kwan and Chan Yue Kuen v. The Queen, Criminal Appeal No. 212 of 1973 where he said:-

"An inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the facts on which it is based is one of guilt, for where primary facts admit of two inferences, one of guilt and one of innocence, they can give rise to no more than suspicion, and if suspicion be added to suspicion, the total can be no more than suspicion."

11. Was the learned magistrate therefore entitled to conclude that the only possible inference was that the appellant was engaged in bookmaking. There was no evidence that the appellant had received any bets on the 19th January 1985 nor was it established as I have said that he was the owner or the tenant of the premises. Again no presumption arises for the appellant to rebut. As a result, I am with some reluctance unable to agree with the learned magistrate that the only inference to be drawn was one of guilt. The appellant could conceivably as suggested by Mr. Mullick have been a punter.

12. The appeal is therefore allowed. The conviction is quashed-and the sentence is set aside.

Representation:

Mr. J. Mullick (K.Y. Woo & Co.) for Appellant.

Mr. S. Chiu (Legal Department) for Crown/Respondent.