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Chan Yee-mui v The Queen

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date24 April 1979
Year1979
Judgement NumberCACC154/1979
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000154/1979 CHAN YEE-MUI v. THE QUEEN

CACC000154/1979
IN THE SUPREME COURT 1979 No. 154

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BETWEEN
CHAN Yee-mui Appellant

AND
The Queen Respondent

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Coram: McMullin J. in Court

Date of Judgment: 24 April 1979

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JUDGMENT

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1. The appellant appeals against his conviction by a magistrate of the offence of engaging in bookmaking contrary to the provisions of section 7 of the Gambling Ordinance.

2. The learned magistrate relied principally upon the evidence of one witness, POON Kwok (the third prosecution witness) who said that he went to the Lam Choi Kee Snack Shop to place a bet on a greyhound race with the defendant. It was common ground that the defendant was the sole proprietress of that food shop. A party of five police officers in plain clothes was on surveillance duty outside the shop. Three of these police officers testified to having seen the witness Poon enter the shop and hand something to the defendant. Poon's evidence was to the effect that he had placed a bet of $14 on a certain dog in a given race but he had paid only $12.60 because of a 10% discount given to him by the proprietress of the shop. Together with the money, he handed in a slip with a character indicating his name upon it but he got no receipt. On leaving the shop he was intercepted by the police officers who then entered the premises together with him. The proprietress was informed that the police were engaged upon an investigation into her activities and a search of the premises was commenced. During this two other men came into the shop. They too were intercepted by the police and each of them was found to have upon his person a document which was described in the evidence as in each case "a betting slip". These two men gave evidence for the Crown and each admitted that he had gone to that place to lay bets on greyhound races with the proprietress of the establishment. Each of them identified the document found in his possession as "a betting slip". WONG Chung-pak was proposing to bet $7 but because of an expected 10% discount the money which he was proposing to pay was only $6.30 the sum found in his possession. The other witness, LAI Kam-wah, said that he did not see the proprietress but that he was proposing to deal with a foki of the shop who was then preparing coffee and he was about to give him $5 for the purposes of betting.

3. Although it was not made specifically a ground of appeal Mr. Gunston for the appellant complained of the admission in evidence of certain statements made by the three lay witnesses to the police immediately after they had been intercepted and searched. Mr. Duncan for the Crown admits that the statements then made were in the nature of hearsay. This was clearly so but no prejudice has arisen as a result. Not only did the three witnesses give the evidence which has already been described but it is clear that the learned magistrate placed no weight upon the statements that the witnesses had previously made to the police.

4. Before dealing with the principal ground of objection made on behalf of the defendant I will dispose of two subsidiary matters which are also formal grounds of appeal. A police constable CHAN Fat gave evidence to the effect that he had acquired special knowledge relating to off-course betting on greyhound races during the period when he had been attached to the Kowloon District Special Duty Squad which dealt with cases of that kind. He told the court that the slips of paper seized from two of the witnesses were in fact betting slips although in respect of that seized from LAI Kam-wah he was unable to say whether it was a betting slip in relation to greyhound racing or horse racing. The learned magistrate regarded this evidence as that of a person who had to quote her own words

"acquired expert knowledge on off-course betting by reason of his experience in the police .."

I was referred to the decision in CHAN Kim-hung & Others v. The Queen(1). The principle there enunciated to the effect (a) that a witness alleged to be an expert should have acquired a special knowledge by study or experience of the subject to which he speaks and (b) that it is for the court to decide whether the qualifications of the witness are sufficient to receive him as an expert is not in dispute. The term "expert" is sometimes not wholly justified by the needs of the occasion. It is in itself a somewhat elastic term extending all the way from a professional expert with a profound knowledge of some branch of science or art to the testimony of some person versed in the skills of some sport or pasttime. The constable CHAN Fat was saying no more than that the documents which he had examined were similar to betting slips with which he had become familiar in the course of his police duties. Expert testimony is a somewhat magniloquent description of what he had to say. It is true, as Mr. Gunston pointed out, that even this humble form of expertise was somewhat called in question by the allegation of the witness that the slip which he identified as a greyhound betting slip could be so identified because a one dollar bet can be placed on a dog race but not on a horse race. It may be as Mr. Gunston says that he was thinking there of on-course betting and not of the obviously much more informal circumstances of illegal off-course betting. Be that as it may he was not cross-examined on this or any other matter. The witness gave reasons for his answers based on the combination of figures shown on the slips; no other explanation was offered and the learned magistrate was entitled to rely upon that testimony as coming from one who had a special knowledge of such matters.

5. Then it is said that the magistrate erred in finding that the evidence concerning discount afforded proof that the appellant had set up a betting business at that shop. That was however simply one item of the evidence and taken together with the other testimony it was capable of affording additional proof of the businesslike character of these activities.

6. The principal ground of appeal and the only ground that has afforded me any anxiety is to the effect that the learned magistrate failed to warn herself that the testimony of Mr. POON Kwok - the witness upon whom she principally relied in convicting - was that of an accomplice. The same point would, of course, arise in respect of the testimony of the witnesses WONG Chung-pak and LAI Kam-wah and although, as Mr. Gunston points out, the learned magistrate does not seem to have leaned very heavily upon their evidence, in what I have to say on this matter I bear in mind the testimony given by those witnesses as well as that given by the witness POON Kwok. It may seem strange that the status as witness, in a case of this description, of a person laying a bet has not long since been established by judicial authority in this territory. Such nevertheless appears to be the case. Mr. Gunston for the appellant indeed took the view that the status of a bet-maker vis-a-vis the book-maker was so obviously that of an accomplice that any deployment of authority on the question was unnecessary. Mr. Duncan for the Crown however strongly contested that Poon was an accomplice within any of the categories described by Lord Simonds in the leading authority of Davies v. D.P.P. (2). In his contention the witness POON Kwok (and presumably the other two witnesses as well) could not, on the circumstances disclosed in this case, be brought within any of the categories described in Davies. It is not enough, counsel said, to find that POON Kwok was involved in a transaction with the defendant which touched upon the substance of the charge against her in order to categories him as her accomplice. The witness, he said, was no doubt on his own admission guilty of an offence under section 8 of illegal betting but that did not denote him a participant in the act of illegal bookmaking and unless he could be shown to have been a participant in that act he would not fall within the only relevant category viz. that of aider or abettor of the defendant as principal. The test in other words is whether POON Kwok (and the other witnesses) could, upon their own admissions, have been charged together with the defendant as principals in the second degree in respect of the offence of bookmaking. Although various analogies were advanced in the course of the argument the advocates on either side were not then in a position to refer me to any authorities to illuminate the application of such a test and finding the matter one of some perplexity I reserved judgment to consider these arguments in the light of such additional authority as might be found further along the road in the direction indicated by the clear and simple authority of the decision in Davies.

7. I should perhaps add at this point that I had considered the advisability of submitting this point for consideration at the highest appellate level under section 118 of the Criminal Procedure Ordinance and upon communicating that possibility to Mr. Gunston and Mr. Duncan they expressed themselves in favour of such a course. On further consideration, however, I am satisfied that the relevant principles are sufficiently clear to warrant the appeal being disposed of at the present level. At the outset I may say that I think the test as propounded by Mr. Duncan is the correct one. Neither POON Kwok nor either of the other two witnesses should be regarded as an accomplice unless it is clear that such witness could have been charged as a principal in the second degree with an offence under section 7. I find a useful statement of general principle on this subject at page 356 of the first volume of Professor Glanville Williams treatise on the Criminal...

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