Tang Hang Chung and Others v. The Queen
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CACC000565/1982
_________ Coram: Hon. McMullin, V.-P., Li and Silke, JJ,A. Date: 21 December 1982 ____________ JUDGMENT ____________ McMullin, V.-P.: 1. On 20th June 1981, a party of police officers under: Inspector Cresswell, carried out a raids a room on the first floor of No. 18A Pak Wai Tsuen, Pak Heung, New Territories. They made an entry through a door on the balcony. There were five men within the room. One of them was seen by one of the police officers tearing up papers and throwing them into the lavatory prior to the police entry. When the police entered, three of the men ran off and escaped. Two of them were arrested on the spot. They are the 1st and 2nd applicants. 2. Within the room, the police found 98 betting slips, 4 telephones connected with tape recorders, 8 cassette tapes and a newspaper showing details of greyhound races to be run that evening in Macau. There was also a radio tuned to a broadcast of the Macau dog races. When the police entered, the 1st and 2nd applicants were found standing next to the telephones. While the police were searching the room, three incoming telephone calls were received. Two of the callers were men seeking to lay bets on the evening's races, while the third call was from a woman who said: "Fold, you have two minutes before the race starts - do you have anything? Upon arrest, the 1st applicant asked whether he could be released if his assistants admitted the offence". 3. It would seem that the two applicants were later released upon bail. When the police conducted a further raid upon the sane premises four days later, on 26th June, the situation therein appeared to be virtually unchanged. On this occasion the 1st and 3rd applicants were found within, and the police seized a large number of betting slips and sheets together with a newspaper showing a list of greyhound races to be held that night in Macau. The table of races in the newspaper showed handwritten notes in red, concerning the first 9 races. These notes contained the name of the winning dog, the dividends paid, etc. The notes corresponded with the contents of some of the betting slips seized by the police. The 1st and 3rd applicants were taken into custody. They, together with the 2nd applicant, were subsequently charged with a number of offences under the Gambling Ordinance. 4. There were 8 charges. The lst applicant Tang faced two charges of having control of a gambling establishment contrary to the provisions of s.5(b) of the Ordinance; two charges of permitting premises to be used as a gambling establishment, being the owner thereof, contrary to provisions of s.15(1)(a); and one charge under s.5(b) of having control of a gambling establishment, the latter charge relating only to the raid of the 24th June. He was acquitted upon all these charges. All three applicants were acquitted upon two further charges relating to the two police raids, of engaging in unlawful book-making contrary to s.7(1) of the Ordinance. 5. The charges with which we are presently concerned are the 2nd and 6th charges relating respectively to the police raids of the 20th and 24th June. All three applicants are charged with assisting in the management of a gambling establishment, contrary to s.5( c) of the Ordinance on 20th June, and the lst and 3rd applicants are charged with the same offence relating to the 24th June (the 6th charge). It appears that the 3rd applicant, who was not arrested during the police raid on 20th June, was originally thought to have been one of the persons who escaped. The District judge found the evidence inadequate to prove that, and he was acquitted upon the 2nd charges. In the result, therefore, the 1st and 2nd applicants were convicted of the offence laid in the 2nd charge, and the 1st and 3rd of that laid in the 6th. 6. Mr. Huggins who appears on behalf of all three applicants concedes that the evidence placed before the District Court leaves no doubts to the existence of an illegal gambling establishment in the premises raided by the police, an establishment which was, moreover, in actual operation at the time of the police raid. 7. Against these convictions Mr. Huggins has mounted a compelling argument. His 1st and 2nd Grounds of Appeal, though fully and elaborately stated, come down to the following contentions: a) that the evidence was insufficient inasmuch as it amounted to nothing more than the fact that these applicants were present in premises which were plainly shown to be the site of an active gambling establishment; (b) that the Judge misdirected himself in law as to what the prosecution had to prove to sustain its charges. 8. Summarising the evidence against the 1st and 2nd applicants on the 2nd charge, the Judge said as follows:
9. This passage is not only a fair summary of the findings of the Judge upon the 2nd charge but also of his approach to both charges - the 6th charge relating to the 24th June being supported by evidence of a very similar character. Counsel, while agreeing that the evidence is fully adequate to show that these applicants were present in the premises on these occasions for some purpose connected with gambling, maintains that it was wholly inadequate to prove that they were in any way assisting in its management. 10. Mr. Huggins relies on Abbott v. Smith 1965 2 Q.B. 662, and Gorman v. Standen 1964 1 Q.B. 294. In Abbott, a woman and her daughter were convicted under the Sexual Offences Act 1956 by a stipendiary magistrate. The relevant section, s.33, is as follows:
11. The mother appealed against the conviction for the offence of managing the brothel and her daughter against the conviction for assisting in the management thereof. Judge Chaplin upheld the finding that the premises in question constituted a brothel, but he found the evidence to support the charges laid against the mother and the daughter wholly insufficient to support them. Allowing the appeal of the daughter he dealt with the nature of the proof required to bring home a charge of assisting in the management of a brothel in the following way:
12. He adopted the words of Lord Parker in Gorman v. Standen (wrongly referred to in the report as Gorman v. Parker) where at page 303 the latter had said:
13. Lord Parker had no difficulty in Gorman in upholding the finding that the, premises constituted a brothel, within the, meaning of the Sexual Offences Act s.33, because a woman and her step-daughter had been seen on a number of occasions entering the premises with different men and eventually this led to a police raid in the course of which these women were found in different rooms in bed with a man. The step-mother made a statement to the police and the step-daughter, having seen this statement, said: "It's my fault, she's frightened of me. If I told her to go up stairs and sleep with a man, she would do it." On the same page Lord Parker said:
14. Mr. Huggins was content to adopt these dicta as providing a reasonable working rule, at any rate by analogy, in the present case. He maintains that the evidence has been wholly inadequate to show that any of the defendants had a say in the running of the gambling business as a business. He emphasizes the element of control expressed by the wording of s.5. He draws a distinction between assisting the management and ''assisting in the management"; and between "assisting the operation" and "assisting in the operation" of a gambling establishment. In the present case he says there was no evidence to indicate what the function of any of the five persons detected therein may have been; nothing to show that any one of them could be described as having a say in the running of the business. In the absence of anything to show the precise nature of the applicants' connection with this illegal gambling establishment, the Court, he says, was not entitled simply to assume, against any of them, that he had an effective say in the manner in which that business was carried on. Each may have had a different function, and one or more might have had no function at all in relation to the business Among the possibilities he mentioned were resorting to the premises to lay a bet, or to repair or install phone equipment, or to collect winnings. 15. With such possibilities in mind, we were asked not to attach undue significance to the failure of the defendants to give evidence, since this was no doubt upon advice, and there is wanting in this legislation any presumption arising from presence such as the legislature has seen fit to supply in many other ordinances regulative of conduct of an undesirable nature. 16. For the Crown, Mr. Frank Wong asked us to look at all the circumstances, redolent as they undoubtedly are of illegal gambling on a fairly large scale, well equipped and organized , involving enormous sums of money. He argues that this is enough in the case of all the applicants to justify the inference drawn by the Judge as to their part in the business. We cannot agree. It may be that if the evidence had clearly established against any one of the defendants that he had engaged in taking bets over the telephone he therefore could be said to have taken a part in the running of the business. But the Judge himself was not satisfied that the evidence went so far. On the bookmaking charges (Charges 3 and 7) he said: "In the absence of evidence setting out the particular part played by each defendant in these incidents of the 20th and 24th, it is my view that the proper conviction should be of assisting in the management of a gambling establishment rather than of bookmaking." That conclusion was prefaced by the observation that he regarded the 3rd and 7th charges as being alternative to the 2nd and 6th (the assisting charges). Mr. Huggins is, however, clearly right when he points out that the Judge cannot truly have held that these were alternative charges since he acquitted the defendants upon them. He had found the evidence insufficient to establish the charge under s.15(1)(a) which was preferred against the 1st applicant, the reason being that the evidence which the Crown had proposed to rely upon to establish ownership had proved insufficient. The 1st applicant was also acquitted upon the 5th charge, presumably for the same reason, of having control of a gambling establishment contrary to s.5(b). 17. What the judge was left with was that ''mere presence" which he had found insufficient to establish any of the charges other than those laid under s.5(c). He thought that there was much more than mere presence which would justify finding that the applicants had been assisting in the management. There was more than mere presence but all of it, the betting slips and sheets, the telephones and tape recorders, the newspapers with their marked entries, pointed to the fact that the business of this establishment was exclusively concerned with bookmaking and more specifically, the kind of bookmaking involved in receiving bets upon dog races over the telephone if the evidence was insufficient to show that the assistance being, lent by the applicants to the management consisted in the taking of bets over the telephone, what else was there to show that they` were assisting in the management in some other way? So far as the 2nd and 3rd applicants are concerned, the answer would clearly seem to be nothing Here presence was all that was proved in their regard. As for the 1st applicant, there was in addition the words spoken by him upon arrest which can only be interpreted as acknowledging that he was conscious of having committed an offence, or perhaps more accurately, that an offence had been committed. But that admission is not sufficiently specific to amount to an acknowledgement that he was taking part in the management, of the establishment. 18. We have considered the possibility, urged upon us by Mr. Wong by way of alternative, and favoured also by the single judge in giving leave, that this evidence might be sufficient to establish the offence of assisting in the operation as distinct from assisting in the management of the establishment. These are unquestionably distinct offences. We cannot regard Leung Shiu & Others (1977) H.K.L.R. 544 as authority to the contrary. Although it would seem from the report that the appellants in that case had been charged with "assisting in the operation, management or other control of a gambling establishment" this point was not taken and the argument was solely concerned with whether the premises in question constituted a gambling establishment. In 8.5 the "operator is put in a category by himself, distinct from the person who manages or otherwise has control. It seems reasonable to suppose that the legislature viewed the operator as the person in overall control, the person with the final say in how, where and when, and even whether, the enterprise is to be carried on. He may be remote from the day to day running of the business which can be left in the hands of a manager or other lesser functionary below the manager. If that is the proper way to look at the section, it may be that a person who cannot be said to assist in the management of the business might nevertheless be said ,to assist in the operation thereof. 19. That is a point we do not have to decide in this case. But in any case, even if there had been evidence to support the latter charge in the opinion of this Court, we would not be entitled to substitute such a verdict in respect of any of the applicants. Although s.83(a) of the Criminal Procedure Ordinance empowers the Court of Appeal to substitute a conviction for an offence other than that charged if the jury could, on the indictment, have found them guilty of such offence, we do not think that the District Judge could, without amending the charge - which was not done - have brought in a verdict of guilty of assisting in the operation of the establishment. There is no statutory provision expressly permitting that course ss.2 of s.51 of the Criminal Procedure Ordinance does not assist the Crown in this respect. That section is in terms identical with the provisions of ss.3 of s.6 of the Criminal Law Act 1967. It would seem that that provision only entitles the court of trial to bring in a verdict different from that charged if the substituted offence is a lesser offence, the definition of which is necessarily included in the definition of the offence charged (Archbold 41st Ed. Para. 1V - at p.462 & 465 citing R. v. Woods (1968) 53 Cr. App. R. 30). 20. For these reasons we think the applicants must succeed. Treating the hearing of the applications as the hearing of their appeals, we quash the convictions and set aside the sentences. Representation: Adrian Huggins (Hampton, Winter & Glynn) for all three appellants. Frank Wong for Respondent/Crown. |
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