Yu Kwok Hung v. The Queen
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CACC000884/1981
__________ Coram: de Basto, J. Dates: 26 February 1982 ______________ J U DG M E N T ______________ 1. The appellant was charged with keeping a place as an "automatic machine establishment'' without a licence contrary to section 4 of the Miscellaneous Licence Ordinance ("The Ordinance"). He appeals against his conviction. Two grounds of appeal were advanced by the appellant himself and subsequently three additional grounds were added. In my view these subsequent and additional grounds should have been numbered 3, 4 and 5 respectively. 2. The machines with which this appeal is concerned are video games of the 'space invader' variety. The screen, when the machine is switched on, displays various space ships (or monsters) moving in predetermined patterns controlled by micropressing data stored in a memory bank. The machines have a lever (or wheel) which controls the direction of a ''space gun" and a red button which, when depressed, causes a "bullet" to be projected on the display screen. A score registers the number of "hits" made by a player. The score depends upon the player's skill in manipulating the lever, rather like a joy-stick, in the right direction and in depressing the red button at the right time to score a hit. Without these two "implements" (to use a neutral word) the machine, though it would show a predetermined pattern on the screen when the machine was switched on, would have no attraction for a player. It would be like watching a short scene continuously repeated on television which the viewer has no means of controlling. 3. The appeal concerns some 29 machines found in premises kept by the appellant. Although there are five grounds, the appeal, in effect, was argued primarily on the basis (a) that the learned magistrate erred in fact and in law in holding that the machines were "automatic machines" within the meaning of the Ordinance and (b) that he failed to assess correctly or give due weight to the expert evidence. 4. Section 2 of the Ordinance reads as follows:
Mr. Jackson for the Crown stated that the object of the Ordinance, as a whole, "was to cover a situation or place where a number of people gather together for a particular purpose or amusement and that there be regulations made to secure their safety". 5. As the learned magistrate points out in his Decision the Regulations made under the Ordinance cover such matters as fire precautions, lighting, hygenic conditions, maintenance of peace and good order in licensed premises, etc. 6. Looking at the Ordinance as a whole I have no doubt the object of that piece of legislation was, in general terms, as Mr. Jackson suggested. 7. Two scientists gave evidence at the trial -Dr. Wong Yau - shing gave evidence on behalf of the respondent. Dr. along graduated from the University of Hong Kong and he received his B.Sc and Ph.D degrees in 1976 from the University of Ontario. Since 1978 he has been a Chemist (in England he would have been classified as a "Scientific Officer") in charge of the scaning microscope division of the Forensic Government Laboratory. Dr. Ho Chun - fai gave evidence on behalf of the appellant. He holds a B. Sc degree in Electrical Engineering from London University, 1953, a M.Sc degree again in Electrical Engineering from the University of Manitoba, Canada, 1962 and a Ph.D degree from the University of Hong Kong in 1970. He is a Fellow of a number of Institutes connected with Electrical and Electronic Engineering. The learned magistrate referred to Dr. Ho, inter alia, as "a highly qualified Fellow of the Institute of Electrical and Electronic Engineers". 8. It is quite apparent that the learned magistrate accepted both Dr. Wong and Dr. Ho as experts. The learned magistrate's Decision sets out, briefly, the evidence and the conflict between the two experts. 9. At page 22 of Bundle A the learned magistrate sets out the last question to, and answer by, Dr. Ho in evidence-in-chief. Dr. Ho maintained that he was in Court to give evidence as "to whether the equipment is mechanical in nature or electronic in nature" despite the question which was, whether the equipment contained any mechanical devices or could itself be a mechanical device. The learned magistrate was of the view that Dr. Ho had made up his mind that the whole machine was electronic in nature and he resented any suggestion by Counsel for the respondent that some parts were mechanical. 10. Dr. Wong testified that, in his opinion, the lever and button were mechanical devices and he stated, "..........the important thing is that without the lever and the red button this set-up is meaningless. Without the lever and the button, human beings could not play on this instrument". Dr. Ho, on the other hand, said he disagreed that the lever and button were mechanical devices. As regards the lever he gave the following as one of his reasons why the lever was not a mechanical device:
11. To label a device as mechanical or electronic depending on the source of purchase, seems to me to be nonsense. He was asked whether the machine could be used "for a game" without the lever and button. He replied, "I can see the machine functioning without touching the button or lever". For myself, I accept that the machine could function in a predetermined manner without touching the button on lever but the machine could not be played without using the lever and button. Dr. Ho was asked, "Did you play it" And he replied, "Depending or what you mean by playing. The machine plays itself". That again, in my view, is nonsense. 12. The definition of "automatic machine" refers to a mechanical device "to enable any person, by any means whatsoever, to ............. manipulate, control or direct the movement of ........... any (other) object or any electrical impulse .......... and register any score......" (emphasis is mine) 13. It is quite obvious that "automatic machine" does not cover a machine which, to use Dr. Ho's own words "plays itself". The machines with which this appeal is concerned did not "play'' by themselves. They were available and intended to be played, and could only be played by being manipulated and controlled by people who directed "the guns" and the firing of ''the bullets" on the screen of these machines by means of levers and buttons with the intention of obtaining a high score. 14. In my view, the learned trial magistrate was correct in coming to the conclusion that the levers and the red buttons were mechanical devices. 15. The learned magistrate was entitled to form the impression he did about Dr. Ho. 16. In my view, the machines were electronic in nature but the basic attraction, indeed, the only attraction to members of the public, of the machines was in the manipulation of the two mechanical devices, the lever and the button. These mechanical devices were an integral part of the machine and indeed, without them the machine could not have served the purpose for which its owners and operators intended. The learned trial magistrate was right in his decision that the machines were "automatic machines" within the meaning of the Ordinance and the appeal is accordingly dismissed. Representation: Mr A. Allman Brown instructed by Jenkins, Oliver & Au for Appellant. Mr C.G. Jackson, C.C. for Crown/Respondent. |