Ho Sheung-yin (F) and Another v. The Queen
|
CACC001247/1977
-----------------
----------------- Coram: Huggins, J.A. Date of Judgment: 27th January 1978. ----------------- JUDGMENT ----------------- 1. These are appeals against conviction. 2. The Appellants were jointly charged, the 1st Appellant with bookmaking and the 2nd with being a tenant and suffering premises to be used as a gambling establishment. 3. The facts were that on 3rd September at about 7.55 p.m. a police party consisting of at least a woman police constable, an inspector and a sergeant went to a flat in the Castle Peak Road. According to the woman police constable she noticed on arrival at the flat that the iron grille was shut but that the wooden door behind it was open. She said that she could see, inside, a table, at which were the 2nd Defendant and his wife. The inspector then rang the bell and the 2nd Defendant came and opened the iron grille so that they could go in. She said that they went in and upon entry she saw the 1st Defendant sitting at a desk. She said that at that time she was "answering" a telephone call. I suspect that is probably a difficulty of interpretation because it would have been quite impossible for her to know whether the 1st Appellant was making the call or answering it, but at least she was talking into the telephone and she was writing on a piece of paper. The constable then identified herself and charged the 1st Defendant with the offence of bookmaking. This was in substance the evidence for the prosecution. The paper was, on the evidence of the sergeant (who claimed to be an expert in such matters), a betting slip and the contention of the Crown was that the 1st Defendant was caught in flagrante delicto, actually receiving a bet. The sergeant then noticed that there was a paging machine on the desk. This was activated by an outside caller. As a result of a conversation that he held with the 1st Defendant he ascertained how to answer this paging call and he made a call himself. The person at the other end then purported to place a bet saying that the bet was to be placed with a person described as "Ah Yin". (The name of the 1st Appellant is Ho Sheung-yin.) This person said that the bet was to be made on a greyhound race. The evidence of the woman police constable as to the paper was in these terms
and the court then notes on the record, after describing another second exhibit, "Exhibits P.1 and P.2". Now the documents were not properly marked as exhibits, although I am satisfied that two documents were admitted as Exhibit P.1. Unfortunately they were not translated, partially I believe owing to difficulties in the Police Force at that time, and also because unfortunately at the end of the case they were ordered to be confiscated and this was taken as having effect forthwith: the documents were handed to the police before the time for appeal had expired: as a result they were not included in the court record. Similarly a plan was drawn by the woman police constable in the course of her evidence and this was not included in the court record because it, too, apparently was allowed out of the custody of the court clerk, although it had been duly marked as an exhibit. It is important that court clerks should ensure that the documents are properly marked and are not allowed out of the custody of the court when a possibility of appeal still exists. The two documents which are now produced are agreed to be Exhibit P.1 but they are not, as described by the woman police constable, "2 sheets of greyhound betting slips dated 3rd September". In the first place they are not two sheets but two scribbling blocks containing many sheets. On the larger of these blocks only one sheet bears any marks but on the other two sheets bear marks. One of those smaller sheets does bear the date "3rd September 1977", but that was obviously part of a certificate added by the police, a certificate which is not explained in the evidence. The smaller "betting slip" appears from the other evidence to be a sheet which is not dated at all. Thus neither of the material sheets bears the date of the offence. The result of this unsatisfactory handling of the exhibits has been to waste much time in this court, but I have no doubt which are the relevant sheets and in the event I do not think it matters whether they are dated or not. The sheet on which the 1st Defendant is alleged actually to have been writing must, on the other evidence, have been the smaller of the two material sheets. That contains only two entries, both of which have been explained as being related to betting on greyhound races. That was an explanation given by the expert witness and that evidence was not contradicted by evidence from the 1st Defendant. It was an explanation which was accepted by the learned magistrate and I think he was justified in accepting it: that is so even in the absence of the other party to the telephone call as a result of which the note appears to have been made. It does not matter in my view that the woman police constable did not understand what it was that she saw the 1st Defendant writing or that there was no evidence that greyhound racing was taking place on that day. As to the latter point the distant party to the second telephone call expressly mentioned greyhound races. However, it is then submitted that the magistrate should not have believed that the 1st Defendant was writing on the slip or that she was receiving a bet by telephone when the police arrived. The substance of the argument can be summed up in the contention that the Defendants were "either fools or innocent", because if not innocent they allowed themselves quite unnecessarily to be caught in flagrante delicto. In addition it is pointed out that the sergeant makes no mention of any telephone call at the time that he entered, although he was one of the parties who came into the flat. This aspect of the matter is not referred to by the magistrate in his Findings and Reasons but it cannot have been absent from his mind and I do not think I would be right to set aside the conviction on this ground alone. The plan which is before me is not drawn to scale. It shows that the desk at which the 1st Defendant was sitting (and, if the plan were to scale, the 1st Defendant herself) were not visible from the door. There is another room immediately on the left as one goes into the flat so that what I shall call the "teng", in which the desk was and in which the 2nd Defendant and his wife were sitting, is T-shaped, there being one room on the left and another smaller room on the right as you go in the door. This results in something of a corridor - however wide and however long it may be - which for a short space would, I am satisfied, block the view of the police to the desk. 4. Coupled with this last contention is an apparent conflict in the evidence of the prosecution witnesses as to the position of the door when they arrived. As I have said, the woman police constable said in her examination-in-chief that the door was open when she arrived but that the grille was shut. Therefore, she said, she was able to see inside through the grille. In cross-examination she said the "door" was closed and that the 2nd Defendant came and opened it. On the face of it that is a flat contradiction. The inspector said: "As wooden door opened we could see in". He was not asked about the gate. Mr. Boase emphasizes that these are merely notes of evidence and are not a verbatim report. That is, of course, true, but I have emphasized on previous occasions the need for accuracy in the keeping of notes of evidence and I would add to that there is a need for ensuring that apparent discrepancies are cleared up. Mr. Boase asks me to interpret the inspector's statement as meaning "because the door was open, we could see in" and that is a possible interpretation. Mr. Allman-Brown, of course, emphasizes the unlikelihood that anybody would commit a criminal offence of this nature with the door open. In all the circumstances the degree of publicity in which the keeping of the wooden door open would result is open to question. Now the prosecution clearly ran a great risk in this case in not clearing up the matter, for upon it turned the credibility of the witnesses and the amount that they could see before they entered the flat. In the event the magistrate did believe the police in spite of this apparent conflict and in spite of the surprising unconsciousness of the Defendants to the danger which they were running in allowing the police in while the 1st Defendant was actually making a telephone call. These were essentially matters for the magistrate and after anxious consideration I am satisfied that there is no sufficient ground upon which I could interfere with his findings. 5. This leaves us with the arguments advanced in relation to the telephone call made after the police arrived. First it is said that there is not sufficient to connect the 1st Defendant with the paging machine. It was lying on the desk where she was sitting and working, and she apparently was able to give the sergeant information about how to make a call in reply to it. The person at the other end of the line sought to make a bet with "Ah Yin". Although it was suggested that this evidence given by the sergeant was hearsay I think it clearly was not: it was direct evidence of what the sergeant heard and that evidence was given not with the object of establishing the truth of what he heard but with that of establishing what was said to him. In my view the evidence was admissible and I see no reason to say that the magistrate erred in not excluding it in the exercise of his discretion. The weakness of the evidence rests in the fact that only one call took place after the police arrived and that the single call might be the result of an error. That possibility becomes altogether too remote, in my view, when one remembers that the distant party referred to "Ah Yin". The 1st Defendant has the given name of "Sheung-yin" and it does not need affirmative evidence to prove that she would be addressed as "Ah Yin" by at least some of her acquaintances. When this was considered along with the fact that the 1st Defendant was, as the magistrate found, seen writing what was clearly a betting slip, it was an inescapable conclusion that Ah Yin and the 1st Defendant were one and the same person. 6. I have not dealt in detail with the New Zealand cases cited to me. I am satisfied that the conclusion I have reached is not inconsistent with those cases and I mention only that in them the type of gambling establishment alleged was on a very different scale from that alleged in the present case. 7. So far I have dealt particularly with the 1st Defendant. The case against the 2nd Defendant is in large measure, but not entirely, bound up with that of the 1st Defendant in the sense that if the 1st Defendant had been acquitted the 2nd Defendant's conviction could not have been sustained. What I now have to consider is whether despite the conviction of the 1st Defendant there was sufficient evidence to show that the 2nd Defendant was guilty of the offence charged against him. Again the substance of the argument seems to me to be that it is unlikely that he would have allowed the police to enter when the 1st Defendant was actually conducting her business at the time. Added to that there is the evidence which he gave and in which he put forward an explanation of some old betting accounts which were found in the desk. Here again it was for the magistrate to decide whether he believed the prosecution evidence or whether the 2nd Defendant's evidence raised a doubt in his mind as to the discovery of the betting slips and it must be remembered that the discovery of those slips, one of which on the magistrate's findings was being written as the police arrived on the scene, raised a presumption that this was a gambling establishment. The magistrate did not believe the 2nd Defendant's explanation of the betting slips and I do not think that it would be proper for me to interfere with the verdict which he reached. 8. For these reasons, although this was manifestly a case which was proper to bring on appeal and to have carefully considered in the light of the very careful argument addressed to me, these appeals must be dismissed. 27th January 1978. Representation: |