ATTORNEY GENERAL v. WONG HO MING

CAAR000018/1987

IN THE COURT OF APPEAL
CRIMINAL JURISDICTION

1987 No. 18
(Application for Review)

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J U D G M E N T

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Roberts, C.J. –

1. This is an application by the Attorney General under section 81A of the Criminal Procedure Ordinance (Cap.221) for the review of the sentence, namely, a fine of $500, imposed on the respondent for gambling in a gambling establishment, contrary to section 6 of the Gambling Ordinance Cap.148 ("gambling”), the respondent having pleaded guilty to this offence before a magistrate at Fanling Magistracy.

2. The facts admitted by the respondent established that he was gambling (Fan Tan) in an unlawful gambling establishment. The table money amounted to less than $100 per gambler arrested at the scene. The respondent was one of about thirty gamblers who were jointly charged and each fined $500.

3. The respondent is aged 34 and had 15 previous convictions, of which 10 were for gambling. The gambling offences occurred between 1980 and 1985. In respect of these offences fines were imposed, varying between $200 in 1980 and $1,000 in 1985.

4. On his appearance before the court on 26th October, 1985, he was sentenced to a fine of $700 and to two months' imprisonment suspended for two years.

5. Thus, the period of two years' suspension had still somewhat over four months to run when the respondent committed the present offence on 11th June, 1987.

6. The Crown advanced two main submissions -

(a) that a fine of $500, in the case of someone with 10 previous convictions for gambling, was manifestly inadequate;

(b) that the Magistrate was wrong in failing to activate the suspended sentence of imprisonment imposed upon the respondent in 1985.

Appropriate sentence for gambling.

7. In Attorney General v. HO Sik-yan and others⁽¹⁾, McMullin, V.P. delivering the judgment of this court, expressed the view that the basic tariff for a first offender convicted of gambling was in the region of $600 to $700.

8. We see no reason to differ from this.

9. McMullin V. P. went on to say that “previous convictions should be taken into account in considering whether the basic rate should be exceeded".

10. In our view, magistrates should consider increasing the basic tariff in accordance with the record of a defendant, who has previous convictions for gambling.

11. Accepting $700 as being an appropriate starting point for the offence of gambling, it might be reasonable for a magistrate to increase that fine by a significant amount for each such offence after the first.

12. In this case while we do not suggest that the figures proposed are applicable in all cases, if a further $200 were added for each subsequent offence, the respondent should have faced a fine of approximately $2,700.

13. There must, however, come a point at which it is apparent that increasing fines are not having a deterrent effect on a defendant and a sentence of imprisonment must be considered in accordance with the guidelines set out in Attorney General v. HO Sik-yan^(l) in the following terms -

“(e) That imprisonment for a s.6 offence should only be considered where peculiarly aggravating circumstances are disclosed.

(f) That it is proper to use a suspended sentence of imprisonment only in cases where the circumstances are such that it is proper in the first instance to consider a prison sentence rather than fine or any lesser punishment."

14. These principles were referred to, with approval, by another division of this court in R. v. CHIU Wai-keung and others⁽²⁾.  As Cons, V.P. observed, when delivering the judgment of this court in that appeal -

"Clearly the Legislature, by the provision of a possible term of imprisonment, has in mind that there will be circumstances where imprisonment either suspended or otherwise is appropriate. And one of those circumstances, amongst whatever other circumstances there may be in any particular instance, must be the defendant’s previous history.  If a person should persist in breaking this particular law, despite a series of increased fines, there must come a -time when the sterner measure sanctioned by, the law is required."

15. Thus in accordance with the above principles, it was clearly open to the magistrate in 1985, taking into account the bad record of the respondent, to impose a suspended sentence of imprisonment.

16. This was the approach adopted by Penlington, J. in R. v. LEE So and Others⁽³⁾, in which he observed –

“It is proper in a case where there have been persistent contraventions of the ordinance, to consider whether the time has come where a fine is insufficient and a period of imprisonment is the only way to deter.  There is naturally a reluctance to sentence a person to imprisonment for what is non-violent and a crime which, if the same actions with the same course of conduct was committed in other premises, as has been pointed out by Mr. Lau, indeed no crime at all was committed.  The Court however must take the legislation as it finds it.  It is clearly the purpose of the legislation that gambling shall be restricted to legitimate avenues of gambling and there are now in Hong Kong many such available.”

17. The failure of the magistrate to activate the suspended sentence imposed in 1985 was the subject of criticism by counsel for the applicant, who relied on Attorney General v. LEE Chi-keung⁽⁴⁾ in which Sir Alan Huggins,V.P., delivering the judgment of this court, observed -

"The only justification for not activating a suspended sentence is that the subsequent offence was of such a trivial character - specially if it was of an entirely different nature - that to activate the sentence would be 'unjust'. That was not the case here.”

18. We entirely agree with Sir Alan's comment that a suspended sentence must be activated unless to de so would be unjust.

19. In essence, Sir Alan is here repeating the wording of section 109C (1) of the Criminal Procedure Code, which provides that -

“a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons."

20. However, insofar as the quoted passage from Sir Alan's judgment might be said to suggest that the only reason for not activating a suspended sentence is that the subsequent offence was of a trivial character, we feel that we must respectfully differ. There are, in our view, a number of other circumstances in which it would be proper for a court not to activate, and indeed the wording of section 109D (1) clearly contemplates this.

21. A number of magistrates have in the past shown themselves to be reluctant to perform what is, in the great majority of cases, their duty to activate a suspended sentence under section 109D.

22. Indeed, a recent example was drawn to my attention in which no less than four suspended sentences had not been activated, even though in each instance another offence had been committed during the suspension period.

23. However, there does remain in a magistrate a residual discretion not to activate a suspended sentence provided that he states his reasons for deciding that it would be unjust to do so.

24. The principal reason given by this magistrate for not activating the suspended sentence imposed on the respondent was that the respondent had kept out of trouble from October 1985 to June 1987, i.e. for nearly 20 months out of the suspension period of two years.

25. The magistrate was of the opinion that the suspended sentence had worked and that the respondent could be dealt with afresh and not as a bad recidivist.  The magistrate relied, according to his judgment, to a substantial degree, on R. v. TSE Chi-wai⁽⁵⁾, in which a Deputy High Court Judge had found special reasons for not activating a suspended sentence against a 19 year old accused who was fined $1,000 for the second offence, for the second offence, which was of an entirely different nature to that in respect of which the suspended sentence had been imposed.

26. We do not see that the facts in the Deputy Judge’s case were in any way similar to those of the case before us.  It therefore seems to us that the magistrate should not have relied upon that case as justification for refusing to activate the sentence in this instance, since in each case a magistrate, when considering the activation of a suspended sentence, must be guided by the facts of his own case.

27. It may well be that other magistrates would have taken a different view as to the proper exercise of the magistrate's discretion in circumstances like these. Indeed, if the sentence had been activated, we would have had no difficulty in upholding that decision.

28. Nevertheless, there is a discretion in a magistrate not to activate if in his view it would be unjust to do so. The magistrate directed himself properly and gave reasons for his decision. We cannot conclude that he was clearly wrong in deciding not to activate, though this is a power which ought to be exercised sparingly by courts if the validity of the suspended sentence as a deterrent is to be maintained.

Conclusion

29.We therefore find that the fine imposed on the respondent was manifestly inadequate, in view of his record of ten previous convictions for the same offence.

30.On the rough calculations suggested above by us, a fine of something like $2,700 would have been appropriate. Giving the normal discount which is allowed in applications for review, we think that a fine of $2,000 should be substituted for that of $500 which was imposed by the magistrate. The respondent will have 14 days in which to pay the increased amount.