Ko Ping v. The Queen

CACC000586/1970

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 586 OF 1970

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Coram: Rigby, C.J.,

Date of Judgment: 22nd December, 1970.

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JUDGMENT

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1. The appellant was convicted of the charge preferred against him of keeping a common gaming house.

2. The brief facts of the case were that on the evening of the 6th September a party of police officers proceeded to certain premises in Wanchai. There was a board outside those premises indicating that the place was a restaurant. In the outer part of the premises these officers saw four people playing mahjong. There was money on the table in front of these four people and in a corner of the table there was a sum of $3. Precisely the same applied to a second table at which four persons were also playing. It is unnecessary, in view of the course I propose to take, to indicate what was presumed to be the purpose of the money placed in the corners of those tables.

3. It is abundantly clear, as I understand the law, that for the purpose of sustaining a charge of keeping a common gaming house the Crown must establish habitual user of those premises for that purpose. Habitual user, again, as I understand the law, can be established by proof that the premises were used on at least one previous occasion for the same purpose of unlawful gaming.

4. In this instance, a police constable was called to give evidence as to what he saw taking place at this restaurant on the 5th September. I would point out that it was as a consequence of what he saw taking place there on the 5th September that a search warrant was obtained under the Gambling Ordinance. However, when he was about to give evidence as to what he had seen taking place on the 5th September, the solicitor who appeared for the defence took objection to this evidence on the ground, apparently, that no particulars had been included in the charge as to what was alleged in respect of the 5th September. In my judgment, it was quite unnecessary for any such particulars to have been alleged in the charge. However, the learned magistrate accepted the submission made by the solicitor for the defence and prevented the constable giving evidence as to what he had seen taking place on the 5th September. In so doing, of course, he prevented the Crown from establishing evidence in support of habitual user. With respect to the learned magistrate, in my judgment he was wrong in acceding to the submission of the solicitor for the defence and in precluding this evidence from being given.

5. The learned magistrate, nevertheless, convicted the appellant on grounds which I am bound to say I find somewhat difficult to understand. He referred to the authority of the case of the Attorney General v. Chan Man Kong⁽¹⁾. In the course of his judgment in that case, McMullin, J. said, after making reference to a number of authorities:

"On these authorities I am of the opinion that, in any case, in which the evidence adduced to show that an accused person was keeper of a gaming house, is evidence that he conducted a betting business in such place, the Crown is obliged to show something in the nature of a regular or habitual user of such premises for that purpose."

I would respectfully agree with those words. The learned magistrate sought to distinguish that case from the facts in the present case. With respect, I am unable to see any such distinction.

6. Having regard to the fact that it was the defence which made an erroneous submission as a result of which the Crown was precluded from giving evidence which, in my view, it was entitled to give, I am of the opinion that the proper course in this case is that the appeal should be allowed, but a retrial of the case should take place before a differently constituted court. That is the order I now make.

Representation:

Jackson-Lipkin (H.H. Lau & Co.) for Appellant.

Stapp, C.C. for Crown/Respondent.

(Judgment delivered)

(1) 1967 H.K.L.R. p.225.