Case Document

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CACC000823/1982

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 823 of 1982

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BETWEEN

	HO Wai-lan	Appellant
	AND
	The Queen	Respondent

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Coram: Macdougall, J. in Court.

Date: 26 November 1982

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JUDGMENT

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1. The applicant, who is the owner of premises situated on the 9th floor of a block of flats, was convicted after a trial of having knowingly suffered those premises to be used as a gambling establishment contrary to section 15(1)(a) of the Gambling Ordinance Cap. 148.

2. Evidence for the prosecution disclosed that a police party, acting, in pursuance of an authorisation issued under section 23 of the Ordinance, conducted a raid on the premises at 3 o'clock on the afternoon, of 6th February 1982. One of the party remained on the ground floor to keep observation on the windows of the premises. Other members of the party went to the front entrance where one officer pressed the door bell and shouted out that the police were present. The officers clearly heard the bell ringing inside the premises.

3. Some fifteen seconds later an officer observed someone inside peeping through the inspection hole. However, he or she neither opened the door nor requested the police to identify themselves. The police then began to knock on the door and to announce loudly that they were police and wanted to gain entry. They also attempted unsuccessfully to lever open the door with an iron bar. This activity continued for some twelve minutes during which time, although the police observed through the gap between the door and the floor the shadows of persons moving around inside the premises, no one attempted to open the door from inside.

4. The officers present at the front door were in contact by means of a two way radio with the officer stationed on observation duty below. Whilst the police at the front entrance were attempting to gain entry, the officer below saw a woman, whose features he could not clearly make out but who was wearing a green sweater, open a window to the premises and throw out some papers, some of which alighted in the street and were collected by him. Others were later retrieved by the officer from a ledge outside the window. Some of these papers were found to be pages of racing information from two different newspapers, and two other items were identified by an expert as betting slips. Another officer who had been posted at the rear door of the premises saw a man open it from inside but when the officer announced his identity to him the man closed the door in his face.

5. Ultimately a person' inside the premises announced that someone was fetching a key to open the front door. Shortly afterwards it was opened to the police.

6. On gaining entry the officers found three males and three females present, one of whom was the appellant wearing a green sweater. One of the officers was then assigned to answer incoming telephone calls while a search of the premises was being conducted by his colleagues. He intercepted a call from a caller claiming to be surnamed Poon who laid a bet without asking to speak to any particular person and without seeking to establish the identity of the receiver of the call.

7. Another call was intercepted from a caller who identified himself as Ah Lee. This caller also placed a bet without attempting to ascertain the identity of the receiver or whether he had dialled the correct number.

8. The appellent testified that during the time at which the police had been attempting to gain entry she had been watching television with her friends in the sitting room adjacent to the main entrance. She denied that she had heard the door bell ring or anyone knock on the front door. Although she admitted that she had been wearing a green sweater, she denied that she had thrown anything out of the window. She insisted that she deplored people gambling but could not recall whether the television programme she had been watching was one featuring a direct telecast of horse races that were being conducted at a local race course that afternoon. She also denied that gambling in any form had occurred in the premises.

9. The Magistrate found that the police officers were truthful witnesses. He then considered the effect of section 19. The relevant parts of section 19 and section 23 as referred to in section 19 are as follows:

23.		(1)	A police officer of or above the rank of superintendent may, if he reasonably suspects that any premises or place are or is a gambling establishment, authorize in writing any police officer to enter and search the premises or place.
		(2)	A police officer to whom an authorization is issued under subsection(1), and any other police officer acting under his direction, may -
			(a)	enter, by force if necessary, the premises or place specified in the authorization and search the same;
19.		(1)	Where in any proceedings under this Ordinance it is proved that -
			(a)	the entry of a police officer to any premises or place under section 23(2)(a) was prevented, obstructed or delayed;
			(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 be presumed until the contrary is proved that the premises or place are or is a gambling establishment.
		(2)	...................
		(3)	For the purposes of any proceedings under section 7(1)(c) any person who is proved to have had in his possession one or more than one betting slip shall, until the contrary is proved, be presumed to have been assisting another person in bookmaking.
	"gambling equipment" is defined in section 2 as including betting slips.

10. The Magistrate found that the presumption that the premises were a gambling establishment arose both under paragraph (a) and paragraph (c) of section 19(1). In other words he found that the entry of the police to the premises under an authorisation had been delayed and that gambling equipment in the form of betting slips had been found in the premises so entered.

11. After a careful analysis of the appellant's evidence the Magistrate found that she had not rebutted the presumption. Accordingly he found her guilty.

12. Mr. Martin Lee for the appellant contended that the Magistrate was wrong in concluding that the presumption had arisen under paragrpahs (a) and (c) of section 19(1). He conceded however that if the presumption properly arose under either paragraph the appeal must fail.

13. Mr. Lee argued that for paragraph (a) to apply the prosecution must prove not only that entry was delayed but that the occupants of the premises knew either that the police had been given an authorisation under section 23 or that, at the very least, they were empowered to enter and search the premises.

14. In support of his contention Mr. Lee cited YUEN Tai-bu v. The Queen (1978) HKLR 12$ in which the Court of Appeal was concerned with section 27 of the Ordinance. The section reads as follows :-

"27 Any person who obstructs a police officer in the exercise of the powers conferred on him by this Ordinance commits an offence and is liable on conviction to a fine of $10,000 and to imprisonment for 3 months."

15. The facts of that case were that a party of plain clothes police officers armed with an authorisation issued under section 23 sought to gain entry to premises that they suspected was being us d as an off-course betting centre. The defendant answered the door bell and the police officer in charge of the party showed him both the authorisation and his police warrant card and explained who the police party were and why they wished to enter. The defendant's wife then closed the door. The police then heard furniture being moved about inside the premises and cries of "Robbery" coming from within. About five minutes the defendant opened the door and admitted the police. He explained that he did not allow the police to enter at first because he thought that they were robbers. The Magistrate disbelieved the defendant's explanation.

16. The point raised on appeal was whether the conduct of the defendant had amounted to obstruction under section 27.

17. After considering the case of Hinchcliffe v. Sheldon (1955) 1 WLR 1207, Briggs C.J., who delivered the judgment of the court, said :

"It was suggested that in the present case the appellant had the right not to unlock the grille on the basis that a man's home is his castle. In my view that principle only applies where persons have no right to enter. If a person, be he a police officer or not, has no right to enter, a householder may refuse to open the door of his house. But in the present case the police party did have a right to enter and that was explained to the appellant. In such a case there is a duty on the householder not to make it more difficult for the police party to do their duty, not to obstruct the police party. And this is so whether the obstruction takes the form of warnings as in Hinchcliffe v. Sheldon (1955) 1 WLR 1207 or is merely inaction, the refusal to unlock the door as was the case here."

18. Mr. Lee contends that the true ratio decidendi expressed in that passage is that not only must the police party have a right to enter but that this right must be explained to the defendant before a delay in permitting entry can amount to obstruction.

19. I do not agree. In the context of Briggs C.J.'s two opening sentences the corollary to the passage "If a person, be he a police officer or not, has no right to enter, a householder may refuse to open the door of his house" is that if the police officer does have a right to enter, the householder may not refuse to open the door. It is true that in the case before the Court of Appeal the police officer explained his right of entry and although the court used the words "In such a case" I do not understand it to have meant that the explanation was a necessary prerequisite to the creation of a duty on the householder not to obstruct the police.

20. Nothing that was said in Hinchcliffe v. Sheldon supports Mr. Lee's contention. In that case the son of an hotel licensee on seeing that police were watching the licensed premises shouted to his father that the police were about. A police officer then knocked on the door but some ten minutes elapsed before it was opened. Lord Goddard observed that obstructing the police in the execution of their duty meant nothing more than making it more difficult for the police to carry out their duties. He did not stipulate that for the obstruction to occur it was necessary for the police first to announce either the reason for their presence or the nature of their duties, or to explain their powers to anyone.

21. I find nothing in paragraph (a) which suggests that in order for the presumption to arise the prosecution must prove something more than that the entry of a police officer acting under an authorisation issued under section 23 was wilfully prevented, obstructed or delayed. In my view there is no justification for reading phantom words into the paragraph. No doubt, Had someone inside gone to the front door and asked the police to identify themselves and to explain the purpose of their visit, the police would have done so. As it was, although the appellant knew that persons claiming to be police officers were at the door and sought to enter, m one inside the premises attempted to approach the police with a view to having them identify themselves. In my view it would be idle to suggest that the situation would have been different had the police added to their announcement that they were police and sought to gain entry a further announcement that they were acting in pursuance of an authorisation issued under section 23 of the Ordinance.

22. I emphasise, however, that there must be a wilful prevention, obstruction or delay. What constitutes a wilful delay is a matter of fact to be determined in the light of the circumstances found by the court in the particular case. I hardly imagine, for example, that a court would find that a man had wilfully delayed the police where the circumstances were that he had been taking his bath when he learned that the police were seeking to gain entry, and had taken such time as was reasonably necessary to dry and suitably clothe himself before opening the door.

23. In the instant case the Magistrate found that the appellant knew that police officers sought to enter the premises and deliberately delayed their entry. On the evidence before him I cannot see how he can be faulted for coming to that conclusion. Indeed I would have been greatly surprised had he thought otherwise.

24. As to paragraph (c), Mr. Lee contended that the Magistrate was not justified in finding that the gambling equipment in the form of betting slips had been found on a person in the premises.

25. It is true that the officer who testified that he had seen a person throw from a window of the premises pieces of paper that were found to be betting slips, was not himself at that time on the premises. It is also true that when he saw the betting slips in the hand of the person who threw them out of the window, the slips themselves were not inside the premises. To my mind neither of these factors are of any account. All that is necessary is that the betting slips be found on a person who is himself on the premises. The appellant was seen to be on the premises at a time when her hand was stretched out of the window holding the betting slips. It is the person who must be found on the premises, not the betting slips. The words "found on premises" mean seen or discovered or premises.

26. In R.v. Goodwin (1944) 1 KB 518 the accused was charged under section 7 of the Prevention of Crimes Act 1871, that after two previous convictions, he was found in a public place about to commit an offence, namely, larceny. The Court of Criminal Appeal held that to satisfy the section the accused need not be arrested at the place where he was "found" which meant no more than "discovered" or "seer".

27. That the officer in the instant case was hot physically present on those premises at the time when the appellant was seen there by him and that he did not personally apprehend her are matters which are not to the point.

28. The matter did not end here, however, for Mr. Lee argued that" the prosecution had not clearly proved that the officer had actually seen the betting slips in the appellant's hand. He submitted that his evidence was consistent with a mere assumption from seeing the betting slips fluttering downwards that they must have come from her hand. I do not agree that this is so. The officer testified that he saw the woman in the green sweater throw the betting slips out of the window. He did not say or suggest that he had assumed that she threw them. Furthermore, since he was an duty below with the express purpose of keeping observation on the windows of the premises there is no reason to think, in view of what he said, that lie did not actually see the slips in her hand. In this connexion it is not without significance that the counsel who represented the appellant at her trial did not seek to cross-examine the officer with a view to suggesting that what had happened was otherwise than that which the officer had in clear language testified had occurred.

29. A subsidiary point raised by Mr. Lee was that the Magistrate was wrong in taking into account the two incoming telephone calls. He did net seek to argue that the evidence as to the calls was hearsay and therefore inadmissible. This line of argument was refuted by Yang J., as he then was, in WONG Wing-chun v. The Queen (1978) HKLR 326. Mr. Lee's contention was that there was no evidence that the calls had been intended for the appellant or any other person on the premises. They might, he suggested, have been ill directed. He also claimed that there was no evidence that the appellant had been aware of these calls.

30. It seems to me that it would have been a remarkable coincidence indeed that two different persons each placing a bet had both managed within a short period of time to have dialled the same wrong number or for some other reason have had their calls wrongly connected to the appellant's telephone. The coincidence is all the more remarkable when one considers that both calls were received in premises where the police, despite strenuous and vociferous attempts to enter, had been denied entry, and from which betting slips were seen to be thrown. In my' view the Magistrate was entitled to take these calls into account.

31. For these reasons therefore this appeal is dismissed.