HKSAR v. Yip Koon Tai

[English Translation - 英譯本]
HCMA 862/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 862 OF 2008

(ON APPEAL FROM KTCC NO. 3632 OF 2008)

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BETWEEN

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Before: Deputy High Court Judge Pang in Court

Date of Hearing: 9 January 2009

Date of Judgment: 9 January 2009

JUDGMENT

1.The appellant was convicted after trial on one count of operating a gambling establishment, contrary to section 5(a) of the Gambling Ordinance, Cap. 148 of the Laws of Hong Kong, and was fined $3,000. He now appeals against conviction.

The charge

2.The charge stated that on 5 May 2008 the appellant operated a gambling establishment in Unit 107, 1^st floor, Tower 4, Yau Tong Centre, 1-11 Ka Wing Street, Kwun Tong, Kowloon.

The prosecution case

3.At 3:12 p.m. on the day of the offence, the appellant (the 1^st defendant atrial) walked out of the unit in question and was stopped by police officers who were waiting in ambush. The appellant said that he was the licensee of the unit. The police officers exercised the power conferred by the Gambling Authorization and entered the unit. Upon entry, they noticed that there was a mahjong table on the right side of the unit and that the 2^nd to 5^th defendants were sitting around the table, each sitting by one side thereof. There were chips in the drawers of the table. On the table there were 144 mahjong tiles, 3 dice, and a marker denoting the banker and four directions. The police officers also found another mahjong table and equipment for playing mahjong. A piece of paper, with the words “members [who want to] play mahjong please call 94903470” written thereon, was hanging on the wall.

4.In the meantime, the appellant told a police officer (PW1), “Anyone who has registered as a member can come here to play mahjong”, and “This place is for members to have recreation and to play mahjong. It is not a gambling establishment.”

5.In the end, the appellant was charged with operating a gambling establishment and the 2^nd to 5^th defendants were charged with gambling in a gambling establishment.

The defence case

6.The appellant elected to give evidence. He testified that only members would be admitted to the unit. Each member was required to pay an annual fee of $100. The members could play mahjong in the unit but there was no “commission drawing”.

7.On the other hand, the defence conceded that mahjong fell within the definition of “game” in the Gambling Ordinance and that the mahjong tiles, dice, chips and marker denoting the banker and the four directions were “gambling equipment”.

Findings at trial

8.In his judgment, the magistrate concluded that the appellant was not credible and rejected his evidence. On the other hand, the magistrate considered PW1 veracious and reliable. In fact, at trial the appellant also relied on PW1’s evidence on what he (the appellant) had said to PW1.

9.Furthermore, the magistrate held that the appellant had failed, on a balance of probabilities, to: (1) prove that the mahjong game going on at the time of the offence was a lawful gaming activity under section 3(3) of the Gambling Ordinance; or (2) rebut the presumptions under section 19 of the same Ordinance.

10.Finally, the magistrate found that the appellant, being the person in charge of the unit, must certainly have known that the unit was a gambling establishment and was certainly the person who operated the establishment.

The present appeal

11.The relevant provisions of section 19 of the Gambling Ordinance are set out below:

“19(1) Where in any proceedings under this Ordinance there is evidence that —

(a)      …;

(b)      …;

(c)      gambling equipment was found in any premises or place entered under section 23(2)(a) or on any person found in any such premises or place,

it shall, unless there is evidence to the contrary, be presumed that the premises or place are or is a gambling establishment.”

12.The term “premises entered under section 23(2)(a)” refers to premises entered on the authority of a gambling authorization and covers the unit in the present case. As for “gambling equipment”, it includes items such as mahjong tiles, dice, chips and markers denoting the banker and four directions, all of which were, as mentioned in paragraphs 3 and 7 above, found in the unit in question.

13.This being the case, the presumption in section 19(1)(c) was engaged and the court was entitled to presume that the unit was a “gambling establishment” — unless there was “evidence to the contrary” to rebut the presumption.

14.The problem is that “evidence to the contrary” is not the same as “legal burden”. The “legal burden”, which is be borne by the prosecution, denotes the duty to adduce proof so that the court is sure that the defendant is guilty. On the other hand, “evidence to the contrary” can come from any party to the proceedings, but where the prosecution has established a prima facie case or is assisted by some legal presumptions, the defence will then bear the evidential burden.

15.In other words, the requirement as to “evidence to the contrary” is not only directed against the defendant and the defendant is not required to prove anything on a balance of probabilities. Instead, the “legal burden” to prove the defendant’s guilt is always borne by the prosecution, and once there is a reasonable doubt in the case, no matter what causes it or where it comes from, the defendant must be acquitted.

16.This being the case, the magistrate’s finding that the appellant failed, on a balance of probabilities, to rebut the presumptions under section 19 of the Gambling Ordinance is erroneous in that the magistrate wrongly shifted the legal burden to the appellant.

17.This conclusion is accepted by the respondent. The law on the presumptions under section 19 of the Gambling Ordinance is also set out in 38-119 to 38-120 of Hong Kong Archbold 2007.

18.A similar conclusion is likely to apply to sections 3(3) and 18 of the same Ordinance to the extent that they impose on a defendant to the burden of “proving that any gambling was lawful”. It is, however, not necessary for me to deal with this issue any further because my views on section 19 are sufficient to dispose of the present case.

Judgment

19.The appeal is allowed. The conviction is quashed and the sentence set aside.

Ms. Vinci Lam, Senior Public Prosecutor, for the HKSAR.

Mr. Philip Wong, instructed by May Cheng & Co., for the Defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.