Hong Kong Automatic Vending Co Ltd and Another v. The Queen

CACC000971/1981

BETWEEN

Coram: de Basto, J.

Date: 26 February 1982

_______________

J U D G M E N T

_______________

1. On the 5th February 1982 I heard arguments in connection with this appeal as well as Criminal Appeal No. 884 of 1981.

2. The Appellants in this case are charged with keeping a place as an automatic machine establishment not under or in accordance with a licence issued under the Miscellaneous Licence Ordinance ("The Ordinance"). The 2nd Appellant is the Managing Director of the 1st Appellant.

3. In the early part of December 1980 the 1st Appellant rented six video games machines of the ''space invader" variety to one Madam Choi Bik-sin who had a shop space on the first floor of Lai Wah Building in Tak Kok Tsui. I briefly described the machines in my judgment in Criminal Appeal No. 884 of 1981. The said machines were rented on the basis of a division of the takings as to 60% to the 1st Appellant and 40% to Madam Choi. Before this arrangement was reached the agent of the 1st Appellants in charge of this transaction asked Madam Choi whether she had a licence for ''automatic machines". Madam Choi said she did not. The 1st Appellant's agent explained to Madam Choi that operating the said machines in her shop might involve her in being arrested and fined as she did not have a licence. Eventually it was agreed between the 1st Appellant and Madam Choi that, should she be fined, the 1st Appellant would pay 60% of the fine provided the fine did not exceed $1,000.

4. Madam Choi's shop was raided by the police and, at the time, the machines were being played by children. Both Appellants knew that Madam Choi's shop was not licensed at the time the six machines were supplied.

5. The facts set out in the two preceding paragraphs were agreed between the legal representatives for the Appellants and for the Respondent.

6. At the trial below a Dr Wong Yau-sing gave evidence for the Respondent and a Dr Ho Chun-sai gave evidence for the Appellants. I have set out the qualifications of these two witnesses in Criminal Appeal No. 884 of 1981. Both these witnesses were called, and accepted by the learned trial magistrate, as experts. They gave evidence not dissimilar to their evidence in Criminal Appeal No. 884 of 1981 but in somewhat greater detail. In addition, at the trial below, a Professor Leung Wai-sun also gave evidence for the Appellants and was also accepted by the learned magistrate as an expert. Professor Leung gave his qualifications as B. Sc in electronic engineering from London University and a Ph. D degree in electrical engineering from the University of Leeds. He had been the Professor of Electrical Engineering at the University of Hong Kong for about a year at the time he gave evidence. He was asked, "Is the button or switch a mechanical device?" In reply to this question he said, inter alia, "the switch requires a movement and any movement is mechanical". During cross-examination he also said   "The device on defendants' equipment is no more nor less than mechanical". Also in cross-examination he said , "I have been asked to say is this a mechanical or electrical device. Looking at 2(A) it must be a mechanical device. The other things can be performed by things other than a mechanical device, can be by other device; on those machines' lever and switch".

7. Although this appeal and Criminal Appeal No. 884 of 1981 were heard and argued together, I have studied the evidence and the decisions of the learned magistrates in each case separately.

8. It was put to Dr Ho for the Appellants in the court below that Dr Wong had said the lever and the button were electrical devices and Dr Ho replied "I don't agree - these components come from electrical component suppliers - under no circumstances are they mechanical". Dr Ho made a not dissimilar remark in Criminal Appeal No. 884 of 1981 and I will repeat what I said in that appeal, "To lable a device as mechanical or electronic depending on the source of purchase, seems to me to be nonsense".

9. In the court below Dr Ho made mention of a "delta function". When counsel for the Respondent asked to recall Dr Wong on the question of "delta function" Mr Jenkins for the Appellants submitted that he did not see "how delta function is relevant".

10. In this case, as well as in the case with which Criminal Appeal No. 884 of 1981 was concerned, Dr Ho made the point that the only effect of manipulating the lever or the button was to make an electrical contact, to complete a circuit.

11. Mr Jenkins, for the Appellants below, submitted that if the court were to look at the equipment "as a whole'' then, even if certain points were mechanical, that would not have availed the Respondent. I do not agree having regard to these particular machines.

12. In my view the lever and button were a most important and integral part of the machines, the absence of which would have rendered the machines meaningless, without any attraction to members of the public to play them and, therefore, would have defeated the very object the Appellants intended. The Appellants intended that the machines be played for money - that was the whole object of placing the machines in Madam Choi's premises.

13. The learned magistrate was correct in coming to the conclusion that the lever and button were mechanical devices.

14. The learned magistrate was entitled to come to the view that Dr Ho's evidence lacked objectivity and that his attitude was unnecessarily combative and to reject his evidence that the levers and buttons were not mechanical devices.

15. In my view, the machines were electronic in nature but the basic attraction, indeed the only attraction to potential players, was in the manipulation of the two mechanical devices, the lever and the button.

16. The learned magistrate was right in his decision that the machines were automatic machines within the meaning of the Ordinance and the appeal against conviction is accordingly dismissed.

17. As regards sentence, and in particular the confiscation of the six machines, as the agreement between the operator and the Appellants specifically contained a provision that the Appellants would pay 60% of any fine (not exceeding $1,000) and in view of the agreed fact that the Appellants knew that Madam Choi might be arrested and fined for not having a licence, it is clear that the Appellants were distinctly aware that the premises where the machines were being operated might require a licence, but despite that, the Appellants, for no obvious reason other than the making of money, in effect decided to take a gamble. That gamble has failed and this court is not prepared to interfere with the learned magistrate's discretion to confiscate the six machines concerned. The appeal against sentence is dismissed.

Representation:

Mr. A. Allman Brown instructed by Jenkins, Oliver & Au for Appellants.

Mr. C. G. Jackson, C. C. for Crown/Respondent.