Leung Shui and Others v. The Queen
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CACC000927/1977
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----------------- Coram: Cons, J. Date of Judgment: 14th October, 1977. ----------------- JUDGMENT ----------------- 1. The Mayfair Hotel is at 317-321 Nathan Road, Kowloon. It occupies four floors of that premises and has a total of seventy-six rooms. Eleven of these are to be found on the eleventh floor. When the police visited on the evening of the 12th May only five rooms were occupied. In one there were five persons playing sap ng wu, and in each of the others there were four persons playing mahjong. Three of the mahjong games had an individual spectator. The mahjong tiles, and possibly the playing cards, had been hired out by the hotel for a small fee. In addition normal room service was provided if required. There was a staff of three on the floor for that purpose, that is two waiters and one amah. These three were arrested and in due course convicted of "assisting in the operation, management or other control of a gambling establishment". They now appeal against their convictions. 2. The law relating to gambling has recently been amended. It is now contained in the Gambling Ordinance, which is No.7 of 1977. Section 19 provides as follows:
3. It was conceded by the solicitor who represented the appellants at their trial, and accepted by the learned magistrate, that in the circumstances shown the presumption in subsection (1) did apply. Counsel who now appears for the appellants does not agree. He contends that the two subsections are to be read as one, limiting their effect to charges of gambling in a gambling establishment alone. A similar argument found favour with McMullin, J. in Attorney General v. Chan Man Kong(1). That case arose under the old Ordinance and was concerned with keeping a gaming house. But the principle remains the same. If it were not for that authority I would have felt inclined to adopt the construction accepted at the trial. But it does not matter. There is in the present instance ample direct evidence that the appellants were assisting in the management of premises which on their face amounted to a "gambling establishment". This is defined in section 2 as
4. Gambling is now basically unlawful conduct: section 3(1). There are certain excepted forms to which I will return in a moment. First it is necessary to show that gambling was taking place. 5. "Gambling" includes "gaming": section 2, and gaming means
and a game means
6. As I understand mahjong and sap ng wu they are games of chance and skill combined. It was suggested that there was nothing to show that on that evening they were being played for "winnings in money or other property". No actual cash was found on any table, only chips. But it would be naive to close one's eyes to the realities of the situation. These were not families having a night out with the children. They were groups of men who had deliberately gone to the hotel to play. The chips were down. In these circumstances it would in my view be an unreasonable doubt to think that in none of those games was the enjoyment of the finer niceties of play not spiced by the addition of some financial interest. 7. One of the lawful forms of gambling is set out in section 3(2). This provides:-
Social occasion 8. This is not defined in the Ordinance but it has not at any time been disputed that the present situation was within the words "on a social occasion". Private premises 9. These are defined as
10. The learned magistrate found as a matter of law that the hotel rooms were not private premises. He relied on two judicial comments. The first is from Thomson v. Lacy(2) where Best, J. said:
The second is from Medawar v. Grand Hotel Co.(3) where at p.19 Lord Esher, M.R. said:
From these comments the learned magistrate concluded
With every respect to him that is not a correct conclusion. A guest does not have a right of access to a hotel room. If that were so he would be able to pick and choose between two or more available rooms. But it is clear that he is not : Fell v. Knight(4). What a guest has is a right not to be refused access, which is exactly how Lord Esher, M.R. expressed it. The distinction is fine, but important. A similar distinction is to be found in the principle behind the modern orders "to permit inspection" which are granted from time to time in commercial or industrial cases. When the guest enters the hotel room allocated to him by the landlord he does so only by permission of the landlord, not under any right to enter in himself. The premises are thus private premises within the definition set out in the Ordinance. 11. I think the matter could also be approached, with the same result, from the view of the guest once he has been installed. Although I have been unable to find any express authority on this point it must surely follow that the guest is entitled to exclude all others from that room during the course of his occupancy, except perhaps hotel staff engaged in the proper business of the hotel. Promoting or conducting by way of trade, etc. 12. This part of the subsection has given me considerable anxiety, for there is no doubt that the guests of the hotel that evening were not guests in the normal sense in which that word is used in relation to hotels, that is, they were not genuine travellers or persons having no other accommodation for the night. They were persons who had gone there deliberately for the purpose of gaming. And this fact was well known to the hotel. Yet on the other hand all that the hotel did outside its normal line of business was to lay in an unduly large stock of mahjong tiles. Does this then amount to "promoting by way of trade or business"? The answer, I think, is to be found in subsection (4). The words "promoted or conducted by way of trade or business" are to be found three times in section 3, that is in subsections (2), (3) and (4). Each time the phraseology is identical, until we come to the last. There the words are followed by the qualification
This indicates that the legislature intended the general use of the words in question to cover the hiring out of tiles and other gaming equipment. Otherwise there would be no need for this last specific exception. It does not follow that every hiring will necessarily take a hotel keeper outside the provisions of the subsections. It is perhaps a matter of degree and will have to be decided in each case according to the circumstances. In the present case equipment had been hired to at least four of the five rooms occupied. The evidence showed this to be a regular feature of the hotel's business. These factors are sufficient. 13. For this reason I am satisfied that the Mayfair Hotel was that evening promoting gaming by way of trade or business. It therefore remained a gambling establishment and the conviction of the three appellants for assisting therein was correct. Their appeals must be dismissed. Representation: Patrick Yu (Hastings & Co.) for the appellants. G.W. Alderdice, Crown Counsel, for the respondent. (1) [1967] H.K.L.R. 225 at 237 (2) [1820] 3 Barn. & Ald. 283 (3) [1891] 2 Q.B. 11 (4) 8 M. & W. 269; 151 E.R. 1039 |