The Queen v. Chan Wu Leung

CACC000863/1983

BETWEEN

Coram: Hon. Barnes, J.

Date: 26th July 1983

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JUDGMENT

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1. Although the Appellant has been charged and convicted of an offence contrary to section 7(a) of the Gambling Ordinance, the particulars of the offence as they appear both in the charge sheet and on the certificate of conviction clearly indicate that he was charged with and convicted of the offence of engaging in bookmaking contrary to section 7(1) of that Ordinance.

2. The evidence led by the prosecution was that a police party went to Room 1402 Mei Fung House, Mei Lam Estate, Sha Tin in the afternoon of 2nd April 1983. In the police party was a police constable in uniform who pressed the door bell at the entrance to the premises. The call was answered by a boy who, on seeing the police constable, shouted, "Pa, police". About a minute later the Appellant, who is a 51-year-old man, came to the door and opened both the metal grille and the wooden door and allowed the party in. On gaining entry a police officer heard the flushing of a toilet and then saw a boy emerge from that toilet. There were two telephones inside the premises. Alongside the telephone sets there was a paper pad from which some pages had been torn from the top. There was a radio nearby tuned to a station broadcasting descriptions of horse races being run that day. In another part of the premises there was a television set receiving telecasts of that day's horse racing. One officer, who described himself as PC 20512 and so presumably had a masculine voice, gave evidence that he answered the telephones as they rang and recorded 17 betting transactions in connection with those horse races. From a drawer somewhere in the premises he found a number of betting slips in connection with greyhound races. He also found a newspaper dated 2nd April 1983 with horse racing results written on it.

3. The Appellant did not give evidence nor did he call any witnesses. The magistrate accepted the evidence just summarised and made the following finding:

"Clearly ... bookmaking was in progress. Persons were placing bets with the Defendant, or someone on his premises."

The Appellant has attacked that finding but it seems to me to be unchallengeable . All the grounds of appeal which relate to it must therefore fail.

4. There was, however, other evidence that there were other persons on the premises at the time but all were part of the Appellant's family circle. There was no evidence as to the age of the boy or boys mentioned earlier but there was evidence that there were two adult women on the premises: the Appellant's wife and his elderly mother. The only telephone account found on the premises related to one of the two telephones in the premises and it bore the name of the Appellant's wife. The magistrate in coming to a conclusion as to who was the person engaging in bookmaking at the premises found as follows:

"On the basis of the delay in entry and/or the finding of gambling equipment on the premises, the premises were presumed to be gambling establishment. It was up to the Defendant, being found therein, to rebut the presumption of gambling provided by section 19 of the Ordinance. He did not. He was therefore found guilty as charged."

Mr. Dale, who seeks to uphold the magistrate's decision to convict, concedes that the magistrate was wrong in holding that there was a presumption which the Appellant had to rebut. He does, however, argue that without the presumption the magistrate could have come to no other sensible conclusion on the evidence than that it was the Appellant who was engaging in bookmaking. Consequently, he argues, notwithstanding the fact that the magistrate misdirected himself as to the burden of proof this is a case where, because of the overwhelming evidence which points to the Appellant as the bookmaker, the conviction should nevertheless be sustained.

5. In Reg. v Kwan Ping-bong & Another ⁽¹⁾ the Privy Council said:

"A misdirection as to the onus of proving an essential fact in issue at the trial seldom provides an appropriate case for the application of the proviso. In the instant case the misdirection was as to the onus of proving what was, in effect, the only issue in the case that was seriously contested. The guilt or innocence of the appellants depended on it. In their Lordships' view a verdict of guilty based on this misdirection cannot be other than unsafe and unsatisfactory. The conviction must be quashed."

6. In this case I think that the magistrate would have come to the same conclusion that he did come to had he not misdirected himself in the way it is conceded that he did. If the Appellant was not the bookmaker then 17 callers who expected to bet clandestinely with a female were all so unworldly that they took the risk of non-payment by placing their bets with a male stranger. That to me is inconceivable.

7. Mr. Dale submits that this is a case which falls within the "seldom" category envisaged by the Privy Council in the excerpt I have just referred to.

8. In this case, however, my observation about the magistrate's inevitable conclusion presupposes that the evidence would have remained the same even if the magistrate had not misdirected himself. But the magistrate had already misdirected himself when ruling on a submission of no case to answer. In that ruling the magistrate said:

".... there seems to me to be a presumption under section 19(1) (c) of the Gambling Ordinance that the Defendant's house was a gambling establishment, afforded by the evidence (if accepted) that betting slips were found therein. Gambling includes bookmaking. Under section 19(2) the Defendant will, if this evidence is accepted, be presumed to have been gambling; it will be up to him to rebut that presumption."

The Appellant's decision as to whether or not to give evidence was therefore made on the basis that he had to prove on the balance of probabilities that he was not gambling on the premises whereas he should have made it in the belief that if he could show that there was at least a reasonable doubt as to whether he was the bookmaker he could assure himself of an acquittal. He has not, therefore, been accorded a proper trial. In the circumstances I do not see how, even if I assume the validity of Mr. Dale's submission, I can do other than allow the appeal, quash the conviction and set aside the sentence.

(1)    [1979] HKLR 1 (P.C.)

Representation:

Mr. P.J. Dale, Crown Counsel for the Crown

Mr. K.M. Chang instructed by Wing-sum Lo & Co. for the Appellant