THE QUEEN v. LAU LEE MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 335 OF 1991

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BETWEEN

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J U D G M E N T

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1. The appellant pleaded guilty in the Magistrate's Court to a charge of Bookmaking, contrary to Section 7 (i) (a) of the Gambling Ordinance.

2. The facts briefly were that the police party went to premises in Canal Road East, an address very close to Happy Valley Race Course where apparently there was a racemeeting at that particular evening. The police arrived at the premises, and between 6.55 p.m. and 8 p.m., received 14 telephone calls, in which the callers placed bets amounting to $44,330.00 on the horse races to be held that evening. At the time of their entry, the appellant was found sitting in the living room of the premises in front of a table, and on the table there was a recording device connected to the telephone, a pile of blank papers, an electronic calculator and other articles useful for the purpose of a bookmaking business. The defendant in the course of the police enquiries admitted that he was receiving bets at the time the police raided the premises.

3. He had a record of previous convictions 3 of which were for rather minor offences of gambling in a gambling establishment. The appellant said nothing to the Court by way of mitigation. The Magistrate referred to the decision of the Court of Appeal in Lai Wai Man & another (Application for Review No. 9 of 1980), considered whether he should impose a custodial sentence, but decided that he should impose a fine. He was, however, of the view that the number of bets taken during the time of the police visit indicated a substantial bookmaking business.

4. That finding has been attacked on the hearing of this appeal, but I agree with the Magistrate's conclusion. The Magistrate imposed a fine of $150,000 and ordered that in default of payment the appellant be imprisonment for sixmoths. The fine was paid that same day in full but the defendant now appeals against the sentence and relies mainly on a plea of inability to pay the fine. It is true that the Magistrate at the time, according to the record, made no enquiries as to the appellants means.

5. In his affirmation in support of his appeal, the appellant says that he is a hawker of seafood in Sai Ying pun and that his daily income is around $150, and that his wife works as a salesgirl in a stationery shop earning $4,500 per month.

6. He gives details of members of his family who are dependent upon him, and says that the fine could not be paid by him, and that he is in financial difficulty because he had to borrow heavily at a very high interest rate to pay the fine. Although he says he has to borrow at a very high interest to pay the fine, the fact is that someone was able to pay the money into court that same day to enable hip to be released from custody immediately. A fine of $150,000 for an offence in respect of which the legislature has recently seen fit to raise the maximum to $5 million cannot in my view be regarded as excessive.

7. The fact that the appellant was able to have this fine paid on the date it was imposed indicates ability to pay the fine or, at any rate an ability to get somebody to pay promptly for him.

8. I cannot interfere with the fine on the basis that it was beyond the defendant's ability to pay when the prompt payment indicates that he did have that ability.

9. The appeal is dismissed.