Leung Hei v. The Queen
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CACC000812/1977
Coram: Trainor, J. Date of Judgment: 11th August, 1977. ----------------- JUDGMENT ----------------- 1. On the 26th April of this year the appellant was convicted on a charge of keeping a common gaming house contrary to section 6 of the then Gambling Ordinance, and of receiving bets in a common gaming house contrary to section 7 of the same Ordinance. On the first count he was fined $2,000 and on the second count he was convicted and discharged. The evidence before the magistrate was that on the 16th of October last a police officer went into a restaurant and there he saw many people sitting around, a few of them having a meal, on the ground floor and another number of people in a cockloft. The theme that was obvious from his evidence was that few were taking food though some were drinking tea, and that there were from time to time people going up to the appellant who was sitting behind the cash register giving him money and receiving a slip. In the meantime there was a radio announcing the results of dog racing in Macao, and another radio broadcasting from Hong Kong giving the results of dog racing in Macao. On the following evening that police officer with another went into the same restaurant and took up positions there; they went to the cockloft. Each of them alleged that he went to the appellant announced that they wanted to make bets on dog racing in Macao and did so. They announced their intention, it would appear from the evidence, simply by declaring certain quinella bets. They alleged that the defendant received their money and gave them slips of paper that came from a cash register and on which were certain numbers. It was the allegation of the Crown that the numbers constituted firstly the number of the race concerned; secondly the numbers of the dogs concerned; and thirdly the amount of money that was handed in. It is true that the evidence produced in the form of the slips showed that in one case the figure $1 was shown whereas the police witness said the amount that he deposited was $10. The other witness said that the amount shown on slips that he obtained showing $2 in fact representing $20. The appellant in his evidence said that the figures in dollars represented the price of what is paid for food less a certain discount. 2. The learned magistrate heard that evidence and ruled that the appellant had a case to answer. The appellant gave evidence and in the course of his evidence he was asked by the prosecuting officer was it true that his restaurant had been raided by police on the 28th of March and 19 persons were arrested. He was told that was so. It appears that that was so, but that the appellant in this case was in no way involved in those proceedings. That question was completely irrelevant to the proceedings then before the court although the learned magistrate in permitting it might have had in his mind the necessity pursuant to the then existing law that there should be a plurality of incidents in order to secure conviction; but even if that were so the evidence that was there given was utterly irrelevant insofar as the appellant had not been concerned in those proceedings. The question should never have been asked, and if asked, it should have been disallowed by the learned magistrate even though the legal representative of the appellant raised no objection. The unfortunate thing about that question and answer is that the learned magistrate in giving his reasons for his verdict mentioned this as one of them, and that is the principal ground on which Mr. Hoo appearing for the appellant bases his appeal. Were it not for the fact that the evidence of the police officers, if believed, was overwhelming in my opinion that question would have been fatal to the conviction. As it is however the evidence before the learned magistrate, excluding that answer, was such that, in my opinion, no reasonable magistrate could have come to a conclusion other than the one arrived at by the magistrate in the court below. 3. There is a second ground raised by Mr. Hoo and that is that the police officers were accomplices and therefore their evidence ought to have been corroborated. To put it more correctly the magistrate, while he could have convicted without corroboration ought to have sought corroboration, but I think he would add to that that insofar as the magistrate has not indicated that he did consider the desirability of corroboration the evidence of the two police officers should be rejected and the verdict set aside. The point I understand Mr. Hoo to have made was that insofar as the learned magistrate did not refer to corroboration it may be inferred that he did not take the desirability of corroboration into consideration; that he overlooked the matter. I do not consider there is any weight in this point. The police officers were not accomplices. The police officers were acting in a way that has been done so often before to obtain evidence that would secure conviction. They were not accomplices. I therefore discard this second point. 4. Averting then to the one and only ground of substance I agree that the evidence was wrongly admitted. However in the circumstances I apply the proviso and hold that no injustice was done by the decision reached by the magistrate. Without the offending evidence the result must have been the same. Accordingly I dismiss the appeal.
Representation: Mr. Alan Hoo ( Gunston & Chow) for Appellant. Mr. Polson, C.C. for Respondent. |