Hung Pak-huen v. The Queen

CACC000503/1977

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Coram: Huggins, J.A.

Date of Judgment: 17th June 1977.

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JUDGMENT

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1. This is a somewhat unhappy case. The Appellant was originally charged under s.5(a) of the Gambling Ordinance 1977 with operating a gambling establishment. Before the trial an alternative charge was proffered (and it was accepted) of permitting premises to be used as a gambling establishment contrary to s.15(1) (a) of the same Ordinance. The Appellant pleaded, to both charges, Not guilty and the trial proceeded.

2. At the close of the prosecution case there was a submission of no case to answer. It is not entirely clear on the record to which charge that submission related or whether it related to both charges. In any event the learned magistrate said there was a case to answer and the Defendant gave evidence himself and called a witness. The learned magistrate thereupon convicted on the alternative charge. He made no findings as to the original charge but quite properly did not proceed to record a verdict on that charge - having found the Appellant guilty of permitting the premises to be used as a gambling establishment.

3. The basis of his judgment was that under s.19(1) (c) there was a presumption that the premises were a gambling establishment as defined in s.2, because gambling equipment had been found in the premises entered and the premises had been entered under s.23(2) (a) of the Ordinance. The point taken on the appeal is that there was no evidence before the magistrate that the premises had been so entered. What happened was that the Inspector in charge of the raid on the premises was called to give evidence and he produced an authorisation from his Divisional Superintendent. The document was shown to the witness by the prosecutor and the witness identified it, but before it was admitted in evidence the learned magistrate commented "Not necessary" and the document was thereupon not admitted into evidence. Mr. Haldane, in my view quite rightly, submits that that was an error and that without that document it could not be established that the entry was under s.23(2) (a), and therefore the presumption under s.19(1) did not arise. Mr. Haldane submits, and Mr. Reid was not disposed to argue very strongly to the contrary, that the judgment of the magistrate depended entirely upon the presumption. Mr. Reid did point out that there were certain findings made by the magistrate which could be interpreted as an independent finding of unlawful gaming but I think quite rightly he does not press this matter because of the manifest weight which the magistrate attached to the presumption. Accordingly it appeared to me that the point taken was a valid one.

4. I was, however, a little disturbed by the fact that the error which was made was not that of the prosecutor but that of the learned magistrate, who had obviously overlooked, when he made his comment, the terms of s.19(1), and I suggested, for counsel to assist me, that it might be that in this case I ought to hear further evidence or remit the case for evidence to be taken. Mr. Haldane strongly opposed this, as was to be expected, and he has argued that even if I were to allow this evidence nevertheless the case would still be unsatisfactory because of a particular comment made by the learned magistrate in the course of his reasons: having stated that the burden was on the Appellant to show on the balance of probabilities that if gaming was taking place it was lawful, he stated:

"I did not accept appellant's evidence that all that was happening was social games of mahjong with tiles hired and paid for by his wife and with provision for meals to be supplied again by his wife from the second floor" [that is another flat above the present one] "(or by winners), and no charge or commission made for the supply of the premises and or the equipment used."

Now, stopping there for a moment, if the learned magistrate had said no more, then I think I might have felt it was a proper case to allow the evidence to be called. However, he went on:

"It does not ring true that a man who gives his occupation as 'garment worker' is so concerned with the enjoyment of his 'friends relatives and co-workers' that he lays on a Sunday afternoon social activity involving three tables of mahjong."

With respect to the learned magistrate I think Mr. Haldane fairly comments that that is going too far and that if that was the reason why the learned magistrate disbelieved the Appellant's evidence then it was not a satisfactory reason. It is enough for me to say that I think there is some force in that argument and that the justice of the matter requires that I shall not allow further evidence to be called. If no further evidence is called, clearly (in my view) the appeal ought to be allowed. I so order.

17th June 1977.

Representation: