THE QUEEN v. LIN SAI-YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 683 OF 1986

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BETWEEN

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JUDGMENT

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1. This is an appeal against a sentence of 9 months' imprisonment and a $50,000 fine under Section 5 of the Gambling Ordinance in respect of a conviction for operating a gambling establishment.

2. I have not, in my experience, come across a case of operating a gambling establishment conducted on such a highly sophisticated and large scale. Some of the defendants were actually operating in the Owner's Balcony at The Royal Hong Kong Jockey Club. One defendant had at strapped under her jacket a portable transreceiver with as earphone attached. The radio messages were heard and taped by the Radio  Monitoring Unit and later that day the police, with the necessary authorization, went to a flat at No. 161 Wongneichung Road - the police were obliged to make a forced entry. Entry was delayed for 6 minutes. Whilst the police were trying to gain entry, items of articles including casette tapes and torn pieces of paper were thrown out of the window. In the premises the police found, among other persons, the appellant as well as 10 telephone service lines, although the cable carrying the telephone wires had been severed. The police found, among other things, tape recorders, electronic calculators and piles of water- soluble paper. On the roof top were a receiving antenna and a transmitting antenna joined together into a transreceiver. The transreceiver on the roof was connected by cable to the flat I have mentioned.

3. The telecommunication experts found in the flat that the circuit system consisted of a base station with at least 8 operating telephone sets which any one could operate and which could be linked to the transreceiver and be used to communicate with the person using the portable transreceivers in the Owner's Balcony at the Race Course. It was an agreed fact that the turnover on the afternoon in question was $270,000. -. The learned magistrate said this was a serious Section 5 case -I agree entirely.

4. Mr O'Reilly-Mayne for the appellant submitted, as I understood him, that operating a gambling establishment involved very little, if any, moral turpitude.

5. The legislature has provided that a person convicted of operating a gambling establishment shall be liable, on summary conviction, to a fine of $500,000 and to imprisonment for 2 years. By that enactment the legislature no doubt intended to convey that it regarded the offence of operating a gambling establishment as a serious offence. Indeed, a conviction for that offence, on indictment, carries a maximum sentence of 7 years' imprisonment and a fine of $500,000.-.

6. Mr O'Reilly-Mayne submitted that even in cases in which the maximum sentence is life imprisonment, there are differing degrees of culpability - I entirely agree.

7. In the instant case the appellant was operating on a vast scale and with elaborate transmission equipment with one operative inside the Race Course and the others, including the appellant, in a flat outside the Race Court. The equipment was such that a member of the public who telephoned the base in Wongneichung Road could be put in communication with the defendant with the transreceiver at the Race Course.

8. It was submitted that the learned magistrate was, in effect, so mesmerized by the sophistication of the electrical and tele-communication devices both at the Race Course and in the flat, that she did not sufficiently take into account the appellant's age and health. The Magistrate, in her Reasons for Sentence, specifically stated the appellant was 62 years of age and was in poor health, and, in effect, had a clear record. Mr O'Reilly-Mayne said the appellant suffered from stomach ulcers. I do not at all agree that the learned magistrate did not take the appellant's age and health into consideration - as I said, she specifically referred to these two matters.

9. The learned magistrate after mentioning these 3 mitigating factors then went on to deal with other mitigating factors submitted by the appellant's counsel in the lower court. It was after she had dealt with these other mitigating factors, namely that the appellant was only offering a service for a few rich and influential customers and that this was a "form of family enterprise" (whatever that means), and that, in considering the proper sentence,  the magistrate should have had regard to the amount of bail which had been imposed by the magistrate. It was in respect of these other mitigating factors that she said she gave such weight as they deserved, "which was very little".

10. In the Attorney-General and LI Wai-ming and WONG Kam-tong Application for Review No. 9 of 1984, the Court of Appeal stated, inter alia:

"That in all but minor cases under ss. 5 and 7 the Court should seriously consider whether an immediate custodial sentence is not appropriate, possibly in addition to a fine".

11. This was certainly not a minor offence - it was a serious offence obviously elaborately planned and executed and using sophisticated telecommunication devices.

12. Having regard to the particular facts of this case I am of the opinion that the sentence passed by the magistrate was neither manifestly excessive nor wrong in principle. In the circumstances, the appeal is dismissed.