Leung Yuen v. The Queen

CACC000680/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 680 OF 1975

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Coram: Briggs, C.J.

Date of Judgment: 6th September, 1975.

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JUDGMENT

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1. On May 30th, 1975 there was a police raid on premises at 58 Lockhart Road. The police were acting under an authorization issued under the provisions of section 16 of the Gambling Ordinance. Five persons who were found on the premises were arrested and a considerable number of articles which could be used in gambling, thirty three watches and over $16,000, all of which were found on the premises, were seized.

2. The five persons were charged with the offence of playing in a common gaming house. They were tried on June 25th, 1975 and were acquitted. The magistrate, however, made an order forfeiting to the Crown the articles which were found on the premises including, of course, the $16,000 odd. This is an appeal against that order.

3. The magistrate made the order of confiscation because the articles and money had, in his own words, "come into (his) possession in connection with an offence - namely, that of keeping a common gaming house, the keeper of which has not been identified."

4. An order such as this can only be made within the terms of section 102(1) of the Ordinance, which reads as follows:-

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

5. It does not matter that the case before the magistrate resulted in the acquittal of the accused. But it must be proved that there had been an offence.

6. An essential element of the offence of keeping a common gaming house is that it must be shown that the premises are being used or have been used for gambling regularly or, at least, on one previous occasion. (See the Attorney General v. Chan Man Kong⁽¹⁾.) There was no such evidence in this case. All the evidence tended to show was that the articles used for gambling were being stored in the premises rather than that the premises were used for gambling.

7. Counsel for the Crown relied on the presumption contained in section 17 of the Gambling Ordinance. The relevant portion of that section reads as follows:-

"Where any ..... implements of gaming or gambling ..... are found in any place suspected of being a common gaming house and entered under an authorization issued under this Ordinance ..... it shall be evidence until the contrary is made to appear, that such a place is used as a common gaming house ..... although no gaming, gambling or betting was actually going on."

8. It was pointed out in the case of the Attorney General v. Chan Man Kong⁽¹⁾ that this section does not provide that where incriminating articles were found on premises those premises are deemed to be a common gaming house. For example, the section does not cast any onus of proof on the defendant, he does not have to prove that the premises are not a common gaming house.

9. In the present case the evidence given on behalf of the prosecution could only negative the presumption contained in section 17 of the Ordinance. This evidence was to the effect that the premises at the time of the raid were not then being used for gambling and there was other evidence including evidence of photographs to show that the premises were being used to store the articles.

10. This evidence was, of course, adduced by the prosecution but this is enough to negative the presumption. (See The Crown ex parte⁽²⁾ and the Attorney General v. Chan Man Kong⁽¹⁾.)

11. In the event, the order for forfeiture made by the magistrate must be set aside.

Representation:

Sakhrani (Sousae & Co.) for appellant.

Bellanto for crown.

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

(2) (1956) H.K.L.R. 329.