Lo Tit Shing and Another v. The Queen
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CACC000673/1981
----------------- Coram: Liu, J. in Court Date of Judgment: 27th August 1981. ----------------- JUDGMENT ----------------- 1. This is an appeal by both appellants against conviction under Section 7(a) of the Gambling Ordinance for illegal bookmaking. They were convicted by the learned Magistrate and fined, in respect to the 1st appellant $10,000 with $500 costs and in respect to the 2nd appellant $15,000 with an aqual sum in costs awarded against him. 2. The premises were raided by a party of police. After a fair amount of commotion outside the flat, there was indeed considerable delay in response. Ultimately, the door was opened by the 2nd appellant. The 1st appellant was found sitting at a table on which were some calculators, an abacus, the daily racing newspapers, a telephone, paper and ball point pens. Prior to the admittance of the police by the 2nd appellant, sound of toilet flushing was heard by raiding officers outside the flat. 3. The Sergeant told the learned Magistrate that the Inspector caught hold of the 1st appellant in the act of receiving calls. The Inspector gave a different version. He said that he observed the 1st appellant as merely sitting at the table. It was criticised that this discrepancy between the evidence of these two police officers was not specifically resolved by the learned Magistrate. The criticism is, in my view, unjustified as it can be seen and has been plainly pointed out by Mr. Rhoda on behalf of the Crown that at p.25 of the Record of Appeal, the learned Magistrate made reference to such inconsistency but regarded none as being of any significance. 4. After police entry into the premises, the Inspector told the Court that he received some 11 calls. All, according to the Inspector, were for bets. The Inspector recalled that the first message he received was in the following terms:
The Inspector recorded that incoming call on a pad, and he had occasion to refer to the entry at the trial before giving a more accurate account of the first call he received. He elaborated that it was Quinella 1, 3 and 6 each $50; the name given as the caller was Poon Wing, and it was for Race 3 not Race 2. The Inspector gave yet a further example of another incoming call, the second call for bets. He told the Court that the caller was Ah Shing; it was for Race No. 3, Horse 1 and 6, each $1,000. 5. It was contended on behalf of both appellants that without expert evidence, the nature of these calls had not been duly established. Mr. Rhoda on behalf of the Crown submitted that these calls were made in abundantly clear terms, open to no doubt and that they were precisely what they meant or were held out to be, bets. 6. In my view, the interpretation invited of me by Mr. Rhoda is irresistable. The plain terms of the calls as described by the Inspector would require no explanation by any expert. They were simply bets and placed as such. 7. The police also found Exhibit P.9, a piece of paper in the toilet bowl. In the course of his finding, the learned Magistrate rejected Exhibit P.9 in the absence of any Expert evidence. But ultimately for reason not apparent, the Court sought to place some reliance on this Exhibit in drawing an inference of the appellants' participation in the illegal activities of bookmaking. It was conceded quite fairly by Mr. Rhoda for the Crown that Exhibit P.9 could not legitimately be embraced by the learned Magistrate. 8. At p.25 of the Record of Appeal, the learned Magistrate set out his findings as follows:
9. The learned Magistrate concluded:
10. The learned Magistrate was conscious of the absence of any statutory presumption despite his rejection of the defence version in inelegant terms. 11. The crux of the matter, as counsel put it, is whether or not at the close of the prosecution case there was any prima facie evidence of guilt. 12. The story told by the appellants was ludicrous, and it was rightly discarded by the learned Magistrate. Their allegations are not even worthy of any repetition. 13. It is true that the reception of the police was delayed. Counsel for the Crown did not seek to rely on this factor singly. It was conceded that the delay in the opening of the front door would per se be no evidence of guilt. However, the court was invited to look into all the circumstances in conjunction with all the paraphernalia found on the table. It was submitted that the circumstances in which the police party were admitted into the premises was a matter that could be taken into consideration by the learned Magistrate in ultimately drawing the inference that both appellants were involved in the joint enterprise of running an illegal bookmaking business at the premises. But there was no such supportive evidence. Delay in opening the door in this case brought upon the appellants grave suspicion and no more. Suspicion is no evidence of guilt. 14. Counsel for the appellants levelled criticisms at the Court's finding that gambling equipment was kept in the premises. The articles found on the table were individually quite innocuous, but together calculators, abacus, the telephone, daily racing newspapers, paper and pens with the incoming telephone bets, they could legitimately be taken as gambling equipment. 15. I have commented on the telephone bets. 16. In the absence of any acceptable evidence substantiating Exhibit P.9 which was duly rejected by the learned Magistrate, flushing of the toilet would be of no relevance. It was an act, though giving rise to some more suspicion particularly of the delayed admittance, equally consistent with guilt as with innocence. 17. The conclusion of the learned Magistrate on all the facts listed in (1) to (6) that bookmaking was being undertaken on the premises cannot be supported, though I would agree that bookmaking could possibly have been undertaken on the premises at the time of the police raid. I do not, however, share the inference drawn by the learned Magistrate that by virtue of the facts listed out in his Statement of Findings, bookmaking must have then been undertaken at the premises. 18. There was no evidence of joint enterprise, and the circumstances taken together in my view do not give rise to any such inference. The only relevant circumstances were the finding of booking equipment, incoming telephone bets and the presence of two appellants who were not carrying on any apparent illicit activities. No inference of criminal involvement for the purpose of this charge faced by the two appellants could reasonably be drawn by the learned Magistrate at the close of the prosecution case. Grave suspicion is no evidence of guilt. In addition, any one of these appellants could have himself alone been implicated, and we know not which one, if any at all, of the appellants could have possibly been so involved. In all the circumstances, the matters that could be legitimately taken into consideration by the learned Magistrate could not give rise, in my view, to any reasonable inference that any of the appellants was at the material time being engaged in activities of illegal bookmaking. 19. I accept the submission of Miss Yeung advanced on behalf of both appellants. I am in agreement with the submission of counsel that at the close of the prosecution case there was not sufficient evidence for a prima facie case against any of the appellants. I am driven to the conclusion therefore that none of the convictions of the appellants can be supported. I allow the appeal and order that appeal be allowed in each case, conviction and sentence quashed in each case, and awards of cost against both appellants be likewise set aside. Finally, I order that the fine in each case, if paid, be refunded to the appellant.
Representation: Mr. Rhoda, counsel for the Respondent. Ms Rose Yeung instructed by H.M. So & Co. for Appellants. |