Lai Nai Him v. The Queen

Case No.CACC 417/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000417/1983

IN THE HIGH COURT	1983 No. 417
	(Criminal)

BETWEEN

	LAI NAI HIM	Appellant
	and
	THE QUEEN	Respondent

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Coram: Jones J.

Date: 2nd May, 1983.

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JUDGMENT

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1. On the 1st March 1983 the appellant was convicted of conspiracy to cheat contrary to common law and to acceptance of an advantage contrary to section 4(2)(a) of the Prevention of Bribery Ordinance Cap. 201.

2. The facts are amply set out in the learned magistrate's statement of findings.

3. It was contended that the learned magistrate erred in law and in fact to find the cautioned statement admissible Very detailed reasons for his ruling to admit the cautioned statement were given by the learned magistrate at the trial. Neither in law nor in fact can he be faulted in his decision.

4. Mr. Yim who appeared for the appellant then submitted that the film should not have been admitted and P.W.2 should not have given evidence by providing a commentary. No authority was produced to support either contention. The evidence was properly admitted.

5. With regard to the first charge four specific grounds of appeal were submitted:-

"(iv)		The prosecution had failed to prove marked cards,P3 were being used in cheating at the material time.
(v)		The learned magistrate had failed to take into consideration of P W 2's evidence that no cheating was taking place at the material time.
(vi)		There was no evidence on the prosecution's case,to show any fraud, misleading device or false practice by using marked cards.
(vii)		There was no evidence to show whether such fraud or device was possible to be achieved. D P P. v Hock & Alsford The Times 26/5/78"

6. These matters were dealt with by the learned magistrate and I quote from his statement of findings at page 87:-

"The particulars allege that the four defendants 'conspired together to cheat at gambling by the use of marked cards in the course of gambling in an attempt to win money from .....' Mr. Yim submitted that the burden was on the prosecution to prove cheating by using marked cards. With respect, I disagree hat the prosecution had to prove was no more than that which was alleged in the particulars. I have already said that only Ex P3 was used at the demonstration and in the game."

7. He found as a fact that exhibit P3 was marked beforehand, and no one had intermeddled with the pack. The learned magistrate was satisfied that the conduct which was precipitated by the. agreement was designed to lead to the commission of an unlawful act by the use of marked cards.

8. In paragraph (f) the learned magistrate said:-

"........... I find that there is overwhelming evidence which points to the irresistible. conclusion that marked cards were used with which both D1 and D3 - the two cheating masters - were familiar and could recognise the scored markings. That money was won is likewise beyond doubt. Besides the parol evidence of P. W. 2, there is evidence from D2' s statement as well as from the video film, section 514-519, where the winnings were being counted."

9. I find no merit in these grounds of appeal.

10. One specific ground of appeal was made in respect of the second charge:-

"(viii)

The learned magistrate erred to find the sole reason for defendant to obtain a sum of money was for providing protection for persons engaged in cheating because the star witness P W 2 evidence revealed no cheating at the material time."

11. The learned magistrate was satisfied that the only reason the appellant was paid the sum of $1,200 was for this reason. He was entitled to do so upon the evidence which was overwhelming.

12. The appeal is therefore dismissed.

	(B.L. Jones)
	Judge of the High Court

Representation:

Mr. Francis Yim (C.T. Chan & Co.) for Appellant.

Mr. P.K.M. (Legal Department) for Respondent.