Lai Lai Yuk v. The Queen
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CACC000668/1979
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 668 OF 1979 -----------------
----------------- Coram: Silke, J. in Court Date of Judgment: 11 August 1979 ----------------- JUDGMENT ----------------- 1. The appellant is appealing against her conviction at North Kowloon Magistracy on 12th May 1979 on the following charge:
2. On the 19th February a police party went to execute a Gambling Authorisation at 70, Kilung Street the premises of a money-lending company. 3. When they arrived there the outer iron grill of the door to the premises was closed but the inner wooden door was open. 4. A man was seen standing by the iron grill and a number of people were gathered around a majong table - others were standing at a television set. 5. The inspector in charge of the police party showed his warrant card to the man near the iron grill and directed him to open it. This the man did not do at once. The people inside scattered to one side. A Sergeant with the police party stated that before they did this he saw a "group of them were gambling - playing Sap Sam Cheung. I saw people holding cards". In cross-examination the same witness when asked "You didn't see anyone holding cards?" answered "I could not see" but went on in re-examination to say "I saw people holding cards in the premises. That was when we entered". 6. The Learned Magistrate took the view, quite properly, that the Sergeant's evidence as to Sap Sam Cheung was a mere assumption. The Sergeant gave no details and was not put forward as an expert. 7. The door was opened after what appeared a short hesitation - the Sergeant described this as about one minute - the police entered and arrested those on the premises: eleven were males who pleaded guilty to a charge of gambling in a gambling establishment before the same Trial Magistrate and the 12th was the appellant here. 8. On the premises a large number of exhibits were seized including dice, playing cards, a "banker", tokens and cash - this last consisted of $95 in coin, $710 found in one drawer, $220 in another, $200 in another and the sum of $1,900 on a sofa. 9. The Inspector on entry had asked who was in charge of the premises and the appellant replied "someone told me to look after the premises". She produced a bunch of keys she had in her right hand. 10. Those keys opened the wooden door and the iron grill - though I do note that the grill had been opened for the police by another person whom the Inspector said he did not see use a key to perform that service. 11. Later she said she had been given the keys to look after the premises and later still that she simply picked them up from the table - this is the evidence of the Inspector. The Sergeant, who had stated that the appellant was standing beside the television set, gave support to the evidence of the keys being in her right hand. 12. It is noteworthy that the admission that she was told to look after the premises was not recorded by the Sergeant who cautioned and arrested the appellant. 13. It was the appellant's evidence that she went to the premises with friends and that entertainment was provided by the money-lending company such as playing cards and watching television. She said the man who opened the grill was an employee of the company. 14. She went on that after the police arrived there was confusion on the premises and that, by mistake, when there was a general query of who had keys, she gave the police keys which were on a writing desk. She had keys, but not of the premises, when she went there and had parted with them, while on the premises, as someone asked for a nail clipper attached to them not long before the police arrived. 15. She stated she gave the wrong keys to the police - keys which were not hers. She was, she says, given back her own keys by the police while still on the premises. She denied being asked to look after the premises. 16. In his Statement of Findings, which for valid reasons was not made up until some two months after the conviction, the Learned Magistrate disbelieved the appellant's evidence and, as a finding of fact which he was perfectly entitled to make on the evidence before him, and with which I would not quarrel, found she was in charge. 17. Mr Neoh, for the appellant, argued four main grounds of appeal: that (1) The Learned Magistrate had erred in fact and in law in finding that the appellant was "in charge" of the said premises; that (2) The Learned Magistrate had failed to consider adequately or at all, alternatively, wrongly decided upon the evidence the issue of whether the appellant had permitted or suffered the said premises or part thereof to be opened, kept or used as a gambling establishment. 18. These two grounds are interlinked and I shall deal with them together. 19. Mr Neoh submitted that the words "person in charge" contained in section 15(1)(a) of the Gambling Ordinance should be construed, by the euisdom generis rule, with the words proceeding, that is: "owner: tenant: occupier" and that they denote something more than a mere temporary caretaking. 20. He went on that "to suffer" again suggests something more: that there should be power to prevent not merely, if I understand him, acquiescence. There was a gap, he submitted, in the Crown case in so far as there was no evidence to show for what purpose she was looking after the premises nor who gave keys to her. 21. Mr White on the other hand advanced the argument that the wording in the section was simply a descending scale of authority in connection with a premises and that the appellant did "suffer" gambling to go on doing nothing to stop it. 22. For my part I think "suffer" is something less than "permit" and I accept Mr White's argument on "person in charge" being the end of the scale which starts with an "owner". 23. It is true that the Learned Magistrate did venture somewhat into the realm of surmise when he said "She was the person then who was able to open the premises so that gambling could commence and was no doubt required to lock them up when gambling was over for the night". 24. But, on the evidence which was accepted by the Learned Magistrate, I think him to have been right to hold the appellant to come within the wording of section 15 as a "person in charge" and, assuming for the purpose of this part of the appeal that unlawful gambling was going on, to have "suffered" it so to do. 25. The next two grounds of appeal are the real thrust: they are:
26. These are also interlinked and I will first deal with the presumption point. 27. I would refer to a finding - which is a finding of fact - of the Learned Trial Magistrate which creates some difficulty for he said "But there was no real evidence of unlawful gambling". Mr White did not support this finding but I feel myself to be bound by it for reasons which will appear later - though I do not think I would have necessarily come to the same conclusion. 28. The Gambling Ordinance is a new version of the law relating to gambling - the effect of which is to make all gambling unlawful unless it can be brought within the provisions of subsections (2), (3), (4), (5), (6), (7) or (8) of section 3. The emphasis therefore is different from the old ordinance. 29. It defines "Gambling Establishment" as including "any premises or place, whether or not the public or a section of the public is entitled or permitted to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purpose of or in connection with unlawful gambling or an unlawful lottery". 30. Section 19 is a redraft of the somewhat indigestible old sections 17 and 19 which fell for consideration before McMullin J. in Attorney General v. Chan Man Kong [1967] H.K.L.R. 2251. 31. Cons J. in Leung Shiu and Others v. The Queen [1977] H.K.L.R. 5442 took the view (at p.545) that, considering Chan's case relative to the new Ordinance,
32. The "construction accepted" at first instance there had been that, in the circumstances shown, the presumption in subsection (1) of section 19 did apply. Counsel on the hearing of that appeal contended that the two subsections of the new section 19 are to be read as one, limiting the effect to charges of gambling in a gambling establishment. 33. I too feel inclined to accept the finding of the Learned Trial Magistrate that section 19(1) did apply in this instant case and is not limited to charges under section 6. For these reasons: subsection (1) of section 19 clearly states:
subsection (2) of section 19 clearly states:
34. But again it does not matter for the prosecution here had to prove the appellant "knowingly" suffered the premises to be used as a "gambling establishment". 35. I accept Mr Neoh's submission that the word "knowingly" qualifies the whole section under which the appellant is charged. Knowledge is an essential ingredient of the offence and must be positively proved. 36. Mr White for the Crown quite rightly conceded that most of that which Mr Neoh said was correct but he sought to support the conviction on the basis of the evidence led before the Learned Magistrate and he asks me to disregard the finding that no real evidence of unlawful gambling existed. This I find myself unable to do. For the Learned Magistrate plainly relied on the presumption contained in section 19 to ground the conviction. 37. While, as I have said, I am inclined to think section 19 to apply to any proceedings under the Ordinance it can only be used to erect the presumption that the premises were a gambling establishment. 38. It cannot be used to presume knowledge on the part of the appellant. 39. In those circumstances I think the conviction to be unsafe and unsatisfactory and I would allow the appeal. 40. The conviction is quashed. The fine, if paid, to be returned to the appellant.
(An application for costs was refused) Representation: Anthony Neoh Esq. (Peter Mo & Co.) for Appellant C.A. White Esq., Senior Crown Counsel, for Respondent 1 McMullin J. in Attorney General v. Chan Man Kong [1967] H.K.L.R. 225. 2 Cons J. in Leung Shiu and Others v. The Queen [1977] H.K.L.R. 544. |