Tsang Ying-kit and Others v. The Queen

Case No.CACC 485/1982

Court

Court of Appeal

Date13 Aug 1982

Judge—

Case Document

100%Judiciary

CACC000485/1982

IN THE SUPREME COURT OF HONG KONG	Criminal Appeal
	1982 No. 485

BETWEEN

A1.	TSANG YING-KIT	Appellants
A2.	WONG CHIU-KWONG
A3.	CHAN CHI-MAN
A4.	CHAN CHI-HUNG
	AND
	THE QUEEN	Respondent

Coram: Bewley, J. in Court

Date: 13 August 1982

__________

JUDGMENT

__________

(Bookmaking - burden of proof wrongly placed on defence.)

1. The 4 appellants and 2 others were convicted of bookmaking, contrary to section 7(a) of the Gambling Ordinance, Cap. 148.

2. 3 police officers testified that they raided the premises and seized betting slips, horse racing form guides and other paraphernalia, which indicated to them that it was a place where bets were being made. While they were there, 5 incoming telephone calls were answered by the officers and in each case the caller wanted to place a bet on a race.

3. The defendants denied any knowledge of bookmaking operations on the premises and alleged that they had been assaulted by the police.

4. The learned magistrate found the police evidence overwhelming and convicted all 6 defendants.

5. There are 11 grounds of appeal but Mr. Sanguinetti relies mainly on ground 8, which alleges that the magistrate wrongly placed the burden of proof on the defendants. Counsel for the Crown concedes that, while there was ample evidence to justify the magistrate's conclusion, the conviction cannot be supported, having regard to the final paragraph in the statement of findings, which reads:

"Whether all the betting slips were for betting on races on that evening or not is in itself not crucial - these slips do prove that the premises had a connection with illegal bookmaking and in conjunction with the other evidence mentioned earlier - they form a body of evidence which stands firm and has not been disproved by the defendants."

6. It would appear from this that the learned magistrate took the view that the defendants bore the burden of disproving the prosecution case. The words may have been used inadvertently but, be that as it may, they derogate from a fundamental principle of criminal jurisprudence. An appellate Court has no option but to declare a conviction in these circumstances to be unsafe and unsatisfactory. The appeal is allowed and the convictions quashed. The fines and costs, if paid, must be repaid to the appellants.

	(E. de B. Bewley)
	Judge of the High Court

Representation:

Mr. Sanguinetti (D.L.A.) for appellants

Mr. Dick, S.C.C., for Crown