Lam Shek Yiu v. The Queen

CACC000496/1982

"Bookmaking as defined in section 2 of the Gambling Ordinance "means the soliciting, receiving or negotiating of a bet by way of trade or business whether personally or by letter, telephone, telegram or by any other means". The words "by way of trade or business'' in that definition should not be construed so as to restrict the soliciting, receiving or negotiating of a bet to an employer. They apply equally to an employee who solicits, receives or negotiates a bet on behalf of his employer who runs a bookmaking business.

Criminal Appeal No. 496 of 1982

IN THE HIGH COURT OF JUSTICE

APPELLATE JURISDICTICN

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BETWEEN

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Coram: Hon. Macdougall J. in court

Date: 21 June 1982

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JUDGMENT

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Macdougall, J. :

1. The appellant having been charged with the offence of engaging in bookmaking contrary to section 7(1)(a) of the Gambling Ordinance Cap. 148 was convicted of holding out that he receives or negotiates bets by way of trade or business contrary to section 7(1)(b) of the Ordinance.

2. Section 7 reads as follows:

3. Evidence was given by police officers that they raided premises in Battery Street, Kowloon under a gambling authorisation and were admitted by the appellant. In the centre of the main living area of those premises they found a folding table on which were placed a tape recorder with a device enabling it to be connected to a telephone, two telephones each with a different number, a calculator, a racing journal which contained horse racing details, and forty one betting slips which expert evidence disclosed contained particulars of bets on horse races. The appellant was in possession of the keys to the premises.

4. While the police were conducting their investigation one of the telephones rang and the officer in charge, a European Senior inspector, informed the appellant through a police constable that he could answer the telephone but that if he did not do so it would be answered by a police officer. There was no cross examination to suggest the appellant had not been so informed nor was it suggested that the European police officer did not understand Cantonese. The defence however made much of the fact that the Chinese officer had said in his examination in chief that he told the appellant to answer the telephone. However the evidence as to what the Chinese officer had told the appellant was ambiguous.

5. The appellant answered the call and was directed by the police to record in writing the details of the conversation. He did as he was instructed and told the police that a bet had been placed by a customer on the fourth race. The appellant then answered two subsequent calls and informed the police on each occasion that the caller was a customer placing a bet.

6. The defence solicitor, Mr. Hampton, objected to the admission in evidence of what the appellant had said on the latter two occasions on the ground that he had been required to incriminate himself. He submitted that a caution should have been administered to the appellant after the police had been informed of the nature of the first call.

7. Despite the fact that no objection had been made to the admissibility of what the appellant had told the police immediately after the first call had been received, the magistrate ruled that what had been said by the appellant to the police on each occasion was not admissible in evidence. The relevant part of his ruling is as follows:

"It is just possible that [what the defendant told the police about these calls] could be legally construed as a statement by the defendant and therefore he should have been first cautioned. It might have been better if [the police officer] had followed the usual practice and answered the telephone himself although one understands his reason. To be completely fair to the Defence, therefore, I uphold the objection and do not admit as evidence either of what the defendant wrote or of what he wrote.”

8. Subsequently the appellant was arrested and cautioned. In response to the caution he made an oral statement – “I am not the boss in this bookmaking business. Shortly afterwards the caution was post recorded at the police station and on being informed that he had been arrested because the police had reason to believe that on the day of the police raid on the premises he had unlawfully received off course bets, the appellant wrote the following statement - "I received bets on horses but I was not the boss.”

9. Objection was made to the admission of both the oral and written cautioned statements on the ground that they were obtained by an inducement offered by the police that a friend of the appellant, who was on a visit from the United States and was also on the premises at the time of the raid, would not be charged if the appellant made the requisite admissions. It was alleged that the words which appeared in the written statement had been written down by a police officer on a separate sheet of paper and that the appellant had been instructed to copy them and sign his name. The magistrate decided not to hold a trial within a trial but followed the alternative procedure. The appellant neither gave evidence nor called any witnesses on his behalf.

10. The Magistrate admitted both statements. He stated that he believed the evidence of the police officers and that both statements had been given voluntarily.

11. At the hearing of this appeal Mr. Hampton who again represents the appellant, submits that the magistrate should have excluded both statements on the basis that even if they had not been obtained by an inducement, they followed so close in time after the three earlier rejected statements that it could not be said that they sere unaffected by the absence of the caution which it was alleged the police should have administered after the first telephone call.

12. Mr. Hampton further contends that as his submission to the magistrate was that the caution should have been administered after the first telephone call, and that since the magistrate excluded, not only the statements made immediately after the second and third calls, but also the one made after the first call, he must therefore have concluded that there might possibly have been some threat, promise on inducement made to or violence perpetrated on the appellant by the police that caused him to make the statement immediately after the first call. If this be so, contends Mr. Hampton, then the two later statements made after cautions had been administered would have been made under the effect of the original threat, promise, inducement, violence or oppressive behaviour.

13. I find no merit in this submission, for although the onus is on the Crown to establish that these statements were made voluntarily, it had never been suggested, let alone alleged, before the magistrate that any of the three statements made immediately after each telephone call was subject to objection on any of these grounds. All that had been alleged in respect of those statements was that the second and third of them had been given without the benefit of a caution. Secondly, since the magistrate in his composite ruling on the admissibility of all of the statements not only specifically found that both police officers had given truthful evidence and that he accepted their evidence, but also ruled that as each of the three statements made immediately after each telephone call had not been preceded by a caution he would exclude them to be completely fair to the Defence", it is plain that he did not exclude the first of the three early statements because of the possibility of any threat, promise, inducement, violence or oppressive behaviour.

14. As there is nothing on the record to suggest that the magistrate was wrong in admitting the two cautioned statements and since he had the undoubted advantage of seeing and hearing the prosecution witnesses give evidence on this issue, I cannot say that he should have excluded either statement.

15. Mr. Hampton also complained that the magistrate admitted evidence by a police officer that he had ascertained from enquiries made from the Jockey Club that certain horses carrying certain numbers had won certain races on that day. The relevance of this information was that it tied in with material contained in the forty one betting slips which the expert had testified were betting slips on horse races, and showed that those bets related to horse races that had been run that day. As the purpose of adducing this reported information was to establish the truth of the facts narrated by the employee of the Jockey Club to the police officer, it was clearly hearsay evidence. However, it is apparent from the magistrates statement of findings that this evidence played no part in his reasoning in finding that the appellant had been receiving bets. At most, this information, had it been admissible, would merely have reinforced what was already cogent evidence that bookmaking had been engaged in on the premises that day. It was certainly not evidence that was necessary to a conviction.

16. Finally, Mr. Hampton submits that on a consideration of all the evidence in the case the finding of guilt was unsafe and unsatisfactory. In attempting to support this contention he has been unable to refer to any material other than that on which he bases his other grounds of appeal.

17. There is, however, another matter to which I feel obliged to give my attention. At the hearing before the Magistrate Mr. Hampton submitted that even if the court accepted the prosecution evidence the appellant could not be convicted of engaging in bookmaking because he had admitted that he was only an employee and there was no evidence that he was other than an employee. That being so, contended Mr. Hampton, he was not receiving bets by way of trade or business as is required by the definition of bookmaking because only the employer can be said to be acting by way of trade or business.  In Mr. Hampton's submission an employee who receives bets merely receives them for wages.

18. Unfortunately, the Magistrate who had been required to rule on a number of technical objections during the trial allowed himself to be bemused by this argument and although originally he had been minded to find the appellant guilty of engaging in bookmaking as charged, he changed his mind and found him guilty of an offence under paragraph (b) of the same subsection, namely, one of holding out in any manner that he receives or negotiates bets by way of trade or business.

19. Why the Magistrate should have thought that this solved the imagined dilemma I cannot say for both offences require that the proscribed activity be by way of trade or business.

20. Be that as it may, it is abundantly clear to me that it is irrelevant whether the employer or his employee receives the bet or bets.

21. No doubt the definition of bookmaking has been framed so that section 7(1)(b) is directed at persons involved in a betting business and not at persons who take an isolated bet from perhaps a friend and who in no way can be described as being in the business of receiving bets.

22. To my mind it would be illogical and absurd to construe the words by way of trade or business in the manner in which Mr. Hampton invited the Magistrate to construe them. I see no justification for giving them such a restricted meaning. An employee who receives a bet or bets on behalf of his employer who runs a bookmaking business receives it or them no less in the way of trade or business than does his employer. The words relate to the purpose for which the bet or bets are received, and this is so irrespective of whose trade or business it is by way of which it or they are received.

23. Mr. Hampton agues that assisting another person in any capacity in bookmaking, either directly or indirectly, is a separate and distinct offence under sec 7(1)(c) and that it is under that paragraph alone that a person who receives a bet or bets on behalf of his employer may properly be charged. I do not agree. Sub-section (1)(c) is designed to catch those persons who while not soliciting, receiving or negotiating a bet or bets, assist in some other way in bookmaking. It requires no flight of the imagination to realise that assistance in bookmaking can be rendered in many ways other than by soliciting, receiving or negotiating bets. No doubt Mr. Hampton's argument was influenced by the fact that subsection (2) provides that no prosecution shall be instituted under subsection (1)(c) without the consent of the Attorney General. Since that consent had not been obtained in this case for the reason that the Crown did not intend to proceed under subsection (1)(c), it was in the interests of the defence to advance an argument that, if successful, would bring the facts of the case within the exclusive purview of paragraph (c).

24. Although it is possible that in certain circumstances a person who is guilty of an offence under paragraph (a) may also be guilty of an offence under paragraph (b), the evidence in this case was such that for the Magistrate to find the appellant guilty of an offence against paragraph (b) required either a strained interpretation of paragraph (b) or an extremely wide view of the evidence.

25. It is clear both that there was ample evidence to justify a finding that the appellant was guilty of engaging in bookmaking and that the Magistrate would have convicted the appellant of that offence had he not acceded to Mr. Hampton's argument.

26. In pursuance of my powers under section 119 of the Magistrates Ordinance I therefore allow this appeal and quash the appellant's conviction for the offence of holding out that he receives bets by way of trade or business contrary to section 7(1)(b) and substitute therefor a conviction for the offence of engaging in bookmaking contrary to section 7(1)(a).

Representation:

Mr. Hampton of Messrs. Hampton, Winter & Glynn for Appellant.

Mr. Plowman Crown Counsel for Crown/Respondent.