Lim Hong-liang and Another v. The Queen
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CACC000916/1977
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----------------- Coram: Cons, J. Date of Judgment: 14th October, 1977. ----------------- JUDGMENT ----------------- 1. The two appellants were convicted of operating a gambling establishment contrary to section 5(a) of the Gambling Ordinance 1977. They are husband and wife and would, so it appeared, frequently open their own home which is a flat in North Point for the playing of mahjong. On the evening with which I am concerned two tables were in progress, with the husband at one and the wife at the other. The play was for money. And the winner of each round was required to put aside into a common fund one, two or more dollars according to the number of doubles to which that particular win entitled him. That common fund was managed by the appellants. 2. This much was not in dispute. But two important points were, that is whether all persons present were personal friends of the appellants and whether the common fund eventually found its way into the pockets of the appellants or was disbursed completely during the course of the evening upon food and refreshment for all the participants. As to these two points there was conflict of evidence. The learned magistrate did not resolve the conflict. He came to the conclusion that even on a view most favourable to the appellants they still had not established that the gaming was lawful within section 3(2) of the Ordinance - which they would need to do to escape guilt - because the receipt of food and refreshment by the losers amounted to "private gain". By section 3(2) gaming remains unlawful if it is conducted, inter alia, for
3. Counsel for the appellants attacks the magistrate's conclusion on two grounds. First he says that the payment of the commission money was an established system of the appellants and should therefore be treated as a "house rule" that part of the winnings should be shared amongst the losers; in this sense the losers were really getting "winnings", which is allowed by the Ordinance. I do not think this argument can succeed. It is a misuse of language to say that the losers were "winning" anything. They had lost and paid. What the winner did with the money afterwards did not affect that position. 4. Secondly counsel says that the food and refreshment is not a "gain" in its proper meaning but merely an integral element of the "social occasion". This argument is more attractive. The legislature has sanctioned social gaming in private. It is curious that it should differentiate between those cases in which the winner treats the others out of his own generosity and those where he is bound to do so by prior agreement. Counsel for the Crown suggests that in general it does not, that a distinction only arises when the refreshment money is kept in a separate "capital account". Be that as it may, I am bound by the express words of the Ordinance. Food and refreshment is a benefit in kind. It has value. In the circumstances supposed it was something gained by the players. It was something deliberately organized as part of the gaming. I am therefore forced to the conclusion that the learned magistrate was correct. The appeals must be dismissed. Representation: Edward Chan (Hastings & Co.) for both appellants. Peter Cahill, Crown Counsel, for the respondent. |
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