R. v. TANG YU BONG and Others

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 402 OF 1996

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J U D G M E N T

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1. The appellants were convicted on 5th February 1996 of cheating in gambling and were sentenced to 18 months' imprisonment. The prosecution relied principally upon the evidence of one Chan Koon Man, who said that he had come into contact with the appellants as a result of his advertising the sale of a property. He then became, he said, involved with the appellant in a scheme to trick one Mr Leung in gambling. He gave evidence that he was shown how to cheat at the game of "Fan Tan", and that the proposal was that he, together with the appellants, should cheat Leung and either take the money from him, to teach him a lesson and return it to him, or to take the money from him and hand part to his family and keep part of it themselves. His contribution to the endeavours of this group was the sum of HK$1 million.

2. The game took place and the witness Chan cheated as he had been taught. He was given immunity in respect of these actions. Subsequently, at the latter part of the game, the tide turned and the proposed victim Leung won a considerable sum of money, including the HK$1 million contributed by Chan.

3. The first major attack upon the reasons of the Magistrate is that although he had considered, he said, the evidence as a whole and the elements of the offence, he does not indicate in his findings the precise manner in which the cheating took place, nor did he had the availability of good and cogent evidence upon which he could find that cheating had taken place. He had the benefit of a witness who gave expert testimony as to what is described commonly as a "tin sin kuk". This is where a group of people gathered together and persuade a victim that he, together with they, should cheat another, but in reality, the cheating is by the group against the person that they have enrolled to assist in cheating.

4. In this case, there is no direct evidence of the manner in which the cheating was to take place against Chan. There is evidence that an opportunity existed prior to the hand in which Leung won US$400,000 for the counters under the bamboo basket to be tampered with while Chan turned away to place his cup on a table behind him. The evidence is that this took place either before or during the hand in which the US$400,000 was won by Leung.

5. I was somewhat concerned as to whether this made a difference. However, since Chan was the banker and it was he who would add to or take from the number of counters under the bamboo basket, if his attention was distracted and he turned away from the table at any point after the finish of the preceding hand and before the number of counters under the cup were divided, then that point of time was an opportunity when the counters could be tampered with and so affect the outcome of the hand.

6. Although the Magistrate did not specifically find when the cheating took place, he obviously looked at the whole of the circumstances of the case before him - the evidence of the expert as to how these schemes are carried out, the evidence of the recruitment of Chan, the evidence, although it was not particularly strong, of a brief case that may have been falsely padded to look as though it contained more money than it did.

7. Looking at all the background and circumstances or the evidence available to him, I cannot say he was wrong when he said that he had looked at all the evidence and found there was an irresistible inference of guilt having regard to all the circumstances and that he was satisfied that the prosecution had proved each and every element of the charge against the defendants. On that head, I do not find that this appeal must succeed.

8. Further attack was made in respect of inconsistencies between the evidence of PW1. They are the inconsistencies as to the use of the money was to be put if Leung was successfully cheated. Nothing turns upon that. Further, there was argument that there was material irregularity in the trial proceedings below in that the learned Magistrate dismissed Charge C, which was the charge involving Chan and the appellants in the cheating of Leung. It was argued that given that the learned Magistrate had dismissed that charge, then his evaluation of the evidence against the accused in respect of the cheating of Chan must be an inconsistency. It is for a magistrate to consider each charge separately against each accused. The fact that he dismissed the charge, in respect of the agreement made, as Chan admitted, to cheat Leung, does not affect and should not affect the manner in which he evaluated the evidence in respect of the remaining charge. There is no inconsistency; he declined to convict upon that; he has given no reasons as he is entitled to do. I do not consider this a proper ground of appeal.

9. I am satisfied that the learned Magistrate properly assessed the evidence that there was sufficient evidence to support a conviction and that the conviction is safe and satisfactory. The appeal against conviction is dismissed in respect of both appellants.

10. The appeal against sentence in respect of the 1st appellant is founded upon one major ground and that is that since his incarceration, the 1st appellant has been operated upon for a mass in his left lung which was originally thought to be cancerous but upon treatment that was found to be tubercular. The last paragraph of the most recent report reads :

"He also received anti-tuberculosis drug treatment which will be continued for several months as revealed in our out-patient department. We shall follow him up monthly for his progress."

There is nothing to indicate that there is an on-going degree of debilitation as a result of this illness which would require my intervention on humanitarian grounds to shorten the sentence. Mr Chui has argued that he has spent already some 8 months in prison and as act of mercy, given his medical condition, I should shorten the sentence. I do not agree. If his medical condition is such as to warrant it, the executive arm of Government may be approached for a commutation of sentence. It is not a matter for the courts to intervene in those circumstances.

11. In respect of the 1st appellant, Mr Chui relies upon a further ground of appeal, that the sentence is manifestly excessive given that the starting point of 2 years' imprisonment was wrong in principle and against the weight of authority. He referred me to A.G. v. Leung Kam To, Application for Review No.5 of 1975 where Huggins, J.A. said in respect of a similar cheating at gambling "that a sentence of 12 months' imprisonment after trial would be an appropriate penalty." I am referred first to R. v. Chan Tak Sang and others, (1987) HKLR 1203 which considered the comments of the court in A.G. v. Leung Kam To that for a single offence of this nature, a sentence of one year's imprisonment would normally be an appropriate starting point. In respect of the amount of money lost, the court in Chan Tak Sang said :

"Although the amount of money involved is a matter to be taken into consideration, it does not play a decisive part for the amount taken would usually depend more upon the character and circumstances of the victims than upon the intent of the culprits."

12. Having considered both the case of Leung Kam To and the case of Chan Tak Sang, it appears to me that the learned Magistrate did take his starting point of 2 years rather higher than was warranted by the offence. I do consider, however, that the sum of money involved in this case warrants a higher starting point than the 12 months contemplated in A.G. v. Leung Kam To. The appropriate starting point in this case is a period of 18 months' imprisonment.

13. Given the matters taken into consideration by the learned Magistrate as mitigation, the clear record of the 1st appellant, his age and all other matters that are associated with him, I take an appropriate sentence in this case to be one of 12 months' imprisonment. The appeal against sentence in respect of the 1st appellant is allowed, the sentence is set aside, and the sentence of 12 months' imprisonment imposed in lieu thereof.