The Queen v. Chan Yee Shun

CACC000846/1983

BETWEEN

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Coram: Jones J.

Date: 5th August, 1983.

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JUDGMENT

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1. On the 5th May 1983 the appellant was convicted at the North Kowloon Magistracy of a charge that he engaged in bookmaking contrary to Section 7(1) (a) of the Gambling Ordinance Cap. 148. He was fined $3 ,000 and ordered to pay costs of $500.

2. The appellant appeals against his conviction.

3. The facts reveal that on the 8th January 1983 a party of police officers executed a gambling authorisation at Flat F, 25th floor, 61 Tung Choi Street, Kowloon. Mr. Cheung Ying Kwong who was jointly charged with the appellant opened the door of the premises to allow the police to enter. The appellant was found sitting at a table in a room where there were three chairs and three telephones. A number of exhibits were found on the table, but none could be described as incriminatory. Between 4.20 p.m. and 5.20 p. m. PW1 DPC17225 answered about fifty telephone calls. The callers asked for Mr. Cheung. All of them hung up when they heard the voice of PW1 except for four. These four placed bets when PW1 explained that he was Mr. Cheung's assistant.  Although the appellant was said to be in possession of keys to the premises there was no evidence that they fitted any of the doors.

4. No evidence was called by the appellant at the trial.

5. Amongst the exhibits seized by the police at the premises were four Chinese newspapers.   The learned magistrate ruled that the newspapers were admissible only as to their physical presence and not as to their contents for there were no certified translations. It is abundantly clear that no use could be made of the newspapers without a translation see R. v. Sher Bahadur Khan ⁽¹⁾_. Accordingly they had no probative value.

6. The learned magistrate rightly admitted the evidence of the telephone calls as evidence of what was heard by the police officer, but not to establish the truth of what was said.

7. Objection was made at the trial to the admissibility of documents that were described as betting slips. In fact, these documents were a record made by PW1 of the four bets that he alleged that he had  received over the telephone. The learned magistrate considered that the betting slips had two characters viz as a substantive documentary exhibit and as a memory refreshing document. The documents which were not translated were clearly inadmissible and Mr. Ryan who appeared for the Crown properly concedes this point. Nevertheless Mr. Ryan submitted that the evidence given by PW1 as to what he had written was admissible as he was merely. refreshing his memory. However, this was not borne out by the record for the learned magistrate asked PW1 to read out the contents of each document. They were therefore not used as a memory refreshing exercise.

8. The learned magistrate concluded that the only logical and commonsense inference to be drawn from the evidence was that the appellant was bookmaking. However, the only evidence to connect the appellant with the offence was his physical presence at the premises. Mere presence may arouse suspicion, but it is not evidence of guilt for the appellant may have been at the premises for any one of a number of reasons. Suspicion is not enough to justify the appellant's conviction. Mr. Ryan submitted that the circumstances called for an explanation by the appellant. However, as no presumptions arise in this case the appellant was under no obligation to say anything, and he had in fact been cautioned by the police officer. There was insufficient evidence to found the conviction.

9. Accordingly the appeal is allowed, the conviction quashed, and the sentence set aside. The fine and costs if paid will be remitted.

(1)    (1961) H.K.L.R. 357

Representation:

Mr. D.B. Gunston (Hampton, Winter & Glynn) for Appellant.

Mr. B.M. Ryan (Legal Department) for Crown/Respondent.