Chan Bak-chiu and Another v. The Queen
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CACC001207/1982
BETWEEN:
Coram: Roberts, C.J. Date: 18th January, 1983. ----------------- JUDGMENT ----------------- Preliminary 1. CHAN Bak-chiu (D.1), was convicted of operating a gambling establishment, contrary to section 5(a) of the Gambling Ordinance, and was fined $2,500. 2. He and thirteen others were convicted of gambling in a gambling establishment, contrary to section 6 of the Gambling Ordinance, and were fined $300 in the case of D.1, and $250 each in the case of the other 13. Only D.1 and D.10 have appealed against their convictions. Absence of defendants 3. An examination of the record discloses a number of unsatisfactory features of the trial. 4. It appears from the record, and this was confirmed by D.10, who appeared in person on his appeal, that the trial was conducted, save for the taking of pleas and the magistrate's announcement of his finding of guilt, in the absence of all the defendants except D.1 The magistrate's note states that D.2 to D.14 "will be informed by letter when they are required back for judgment". The magistrate gives no reason for deciding to carry out the trial in the absence of these defendants. 5. Such a course is open to a magistrate, but it should be exercised very sparingly and only when the magistrate has set out carefully his reasons for adopting it. Otherwise, understandably, a defendant may well feel that he has not received a fair trial, being deprived by such an order of an opportunity to put his case. If a defendant is absent. without reasonable excuse, or agrees to the trial. being conducted in his absence, such an expedient is not improper. In this case, however, no reason is recorded by the magistrate for his decision to proceed with the trial in the absence of D.2 - D.14. 6. D.10, in the course of his appeal, asserted that he had been playing mahjong for fun in the restaurant, that he and his friends were trying to raise some money for beer and that they were not gambling. He added that he would have told this story to the magistrate but was given no chance to do so. 7. Had the magistrate heard such evidence, it might well have led him to a different conclusion in relation to D.6. As it was, D.1 gave no evidence on the general issue and all other defendants were absent when they might have done so. Admissibility of confessions 8. The magistrate ruled on the admissibility off statement made to the police by D.1, after the Crown's case had closed. Such statement was part of the Crown's case, and the magistrate should have ruled upon it before that case was closed. The record also shows that the prosecuting officer was not given a chance to cross-examine D.1 on the special issue, before the court refused to admit part of the statement given by D.1 to the police. The magistrate gives no reason for refusing the prosecuting officer the opportunity, to cross-examine D.1, as he had a right to do. 9. The statement taken from D.1 was in two parts. The first part consisted of a statement written by D.1 in his own hand and witnessed by a police officer. The second part consisted of questions and answers recorded by a police officer and also signed by D.1. 10. The magistrate rejects the latter part o?the statement in the following terms -
11. It has been stressed on numerous occasions by the Court of Appeal and the High Court that the test of admissibility of any confession made by an accused person to the police is whether or not the prosecution has established that the statement was a voluntary one. The fact that the whole or part of a confession was the result of an exchange of questions and answers between a police officer and a suspect is not of itself a ground for rejecting the statement, though it is a factor which the court is entitled to take into account when deciding whether or not the statement was voluntary. Facts 12. D.1 was a licensee of a restaurant called the Tak Fat Restaurant in Causeway Bay. About 3 o'clock in the afternoon of 26th July, 1982, a group of police officers, acting under the authority of a warrant properly issued under the Gambling Ordinance, entered the premises. The main door was open, and D.1 to D.14 were seated round four tables. Mahjong was being played at two of them and 'sup ng wu' at two others. 13. The defence which was put forward, according to the magistrate, was that it was a social occasion, in terms of section 3(3) of the Gambling Ordinance, although it must be noted that no evidence to such effect was adduced by the defence, since the only witness called on behalf of the defence, D.1, confined his evidence to the special issue of the admissibility of the statement which he had made to the police. 14. Crown Counsel conceded that the evidence was not sufficient to establish that the defendants were taking part in unlawful gambling. Nevertheless, he argued that the conviction should be upheld by virtue of the operation of the presumptions to be found in sections 18 and 19 of the Gambling Ordinance. Effect of presumptions 15. D.1 was charged with operating a gambling establishment contrary to section 5(a) of the Ordinance. Section 18 of the gambling Ordinance provides that, in relation to an offence against section 5, the burden of proving that any gambling was lawful by virtue of section 3 shall be on the defendant. 16. By section 19(1) of the Ordinance, a presumption arises that premises are a gambling establishment if any of the conditions set out in paragraphs (a), (b) and (c) are fulfilled. 17. It was suggested by counsel for the appellant that these three conditions must all be satisfied before the presumption is activated. My attention has been drawn to an earlier decision of my own in Criminal Appeal No.40 of 1982 and to a decision of Bewley, J. in Criminal Appeal No. 552 of 1982. It is apparent that, in each appeal, the judge proceeded on the basis that it was only necessary for the Crown to establish the facts set out in one of the three paragraphs in section 19(1) before the presumption is activated. 18. In my view, these were correct decisions. Neither 'and' nor 'or' is to be found in that subsection. Therefore the intention of the Legislature has to be derived from a sensible reading of the contents of those paragraphs. 19. I think that it must have been contemplated that the presumption would arise if any of the conditions is met - i.e. if the entry of a police officer was obstructed, or if means of concealing gambling equipment are found, or if gambling equipment is found on the premises. 20. So I am satisfied that, by the operation of these presumptions, the burden lay on D.1 to prove that the premises were not a "gambling establishment", a phrase which is defined in section 2 of the Ordinance as including any premises used for the purposes of unlawful gambling. 21. It also lies upon the defence to show that the activity which was taking place on the premises, was lawful by virtue of section 3. Since no evidence was given by any of the defendants on the main issue, the defence has failed to discharge the burden which lies upon it by virtue of the presumptions under sections 18 and 19. 22. A presumption also arises against D.10 under section 19(2), which provides that, where it is proved that a person is found in a gambling establishment when it is entered under a warrant properly issued under the Ordinance, such person is presumed to have been gambling until the contrary is proved. 23. D.10 failed to discharge this burden because he gave no evidence, though, as he explained to me, he was given no opportunity to do so. 24. I therefore conclude that there were various unsatisfactory features in this trial. Some of these militated against the defendants and others against the Crown. I think that fairness can only be done to both sides by allowing the appeals of D.1 and D.10, quashing their convictions but ordering that there should be a retrial. Representation: R. Woo (Raymond Tang & Co.) for A.1. A.2 in person A.P. Duckett, Crown Counsel, for Respondent. |