HKSAR v. LAM WAI KEUNG

English Translation - [英譯本]

HCMA 149/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 149OF 2005

(ON APPEAL FROM KCCC 219 OF 2005)

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Dates of Hearing: 18 March 2005 and 24 June 2005

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J U D G M E N T

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1. The Appellant Lam Wai Keung was convicted on his own plea by the principal magistrate of one count of “operating a gambling establishment”, contrary to section 5(a) of the Gambling Ordinance, Cap. 148 of the Laws of Hong Kong.  He was sentenced to 3 months’ imprisonment and fined $10,000 or one month’s imprisonment in default of payment.  The Appellant appealed against sentence.  Following hearing, I allowed the appeal to the extent that the order of $10,000 fine or one month’s imprisonment in default be set aside (in other words, the Appellant is sentenced to 3 months’ imprisonment for the offence).  I now set out my reasons for my judgment.

The facts

2. The facts revealed that from 26 May 2003 to 7 January 2004, the police sent an undercover agent to conduct an anti-gambling operation in public places in the Yau Ma Tei area.  During that period of time, 4 groups of people were seen operating unlawful gambling on “Big or Small” or “Fan Tan” almost round the clock on shifts.  On each occasion, usually 30 to 40 gamblers would participate in the game, and each winner had to pay 10% of his winnings as commission.  To avoid being clamped down by the police, on each occasion gambling would be operated at a different place.  However, as all of the places involved were public places and the modus operandi was the same, the operations fell within the legal definition of “gambling establishment”.  Armed with sufficient evidence, the police took action and made arrests on 7 January 2004.  The Appellant was identified by the undercover agent as the one who had operated a gambling establishment as a banker at two different places on 14 occasions.  Under caution, the Appellant admitted the offence and admitted that his job was to roll the dice and keep records.

Grounds of appeal

3. The Appellant’s grounds of appeal were directed at two aspects, namely the term of imprisonment and the fine.

4. Regarding the term of imprisonment, the Appellant complained that he had been treated unfairly as suspended sentences were imposed on the other co-defendants whereas an immediate custodial sentence was passed on him.

5. In respect of the fine, the Appellant pointed out that, at the hearing on 12 January, he requested the court not to have the $10,000 fine deducted from his bail money, and the magistrate agreed to this.  However, as the order issued by the magistrate later on the same day did not mention that the fine should not be deducted from the bail money, the Correctional Services Department (CSD) made such deduction.  As a result, the Appellant had a dispute with the staff of the CSD.  He wrote to the magistrate requesting him to fulfil his promise and moral obligation and to make a new order so as to clarify the matter.  However, on 8 February, the magistrate stated that, having made enquiries with the court, he could not discern any maladministration on the part of the court.  The Appellant claimed that he was puzzled by the answer he got.  Furthermore, on 8 February, the magistrate ordered the Appellant to pay a fine of $5,000 on or before 30 April 2007, failing which he would be imprisoned for 7 days.  The Appellant was very confused by the fine as a result of the magistrate’s order.

6. The Appellant contended that the magistrate’s failure to fulfil his promise and moral obligation had rendered the judicial proceedings incomplete, as a result of which he was unable to keep the promise that he had given his friend and felt ashamed in front of him.  For this reason, the Appellant asked the appellate court make an order that would give effect to the promise made by the magistrate ― no deduction was to be made from his bail money, and the CSD was to refund him for the amount so deducted.  Regarding the level of fine, he said he would leave it to the court to decide. 

Reasons for Sentence

7. The principal magistrate had this to say in his Reasons for Sentence:

The maximum penalty for the offence on summary conviction is a fine of $5,000,000 and 2 years’ imprisonment.  It can therefore be seen that this type of offence is regarded by the legislature as extremely serious.

This type of offence is very prevalent in Yau Ma Tei area.  At least one case is brought before Court 1 of the Kowloon City court every day.  Although gambling by itself is not something heinous, I cannot disregard the various legal and social issues arising from it when I consider the appropriate sentence.

Furthermore, the present operation is an organized one.  Although I accept that the Defendant is not the mastermind, this kind of offence definitely would not have been so prevalent had there not been such frontline people.  Therefore, I am of the view that a deterrent sentence should be imposed.

The Defendant has 26 previous conviction records, 2 of which are similar to the present one and for which he has been fined and sent to prison.  The fact that he committed the offence again shows that the sentences imposed in the past did not have a deterrent effect on him.

For the above reasons, the appropriate sentencing approach is, in my view, to impose both a fine and imprisonment.  By imposing such two-pronged punishment, I hope that he will not commit any offence again.  Therefore, for the present offence, I sentence the Defendant to 3 months’ imprisonment and impose a fine of $10,000 or, in default of payment, one month’s imprisonment to run consecutively with the above term.

Judgment

8. In sentencing, the learned magistrate took into account the prevalence of the offence, the various legal and social issues arising from gambling, and the fact that the operation was an organized one.  Therefore, he adopted the deterrence principle and sentenced the Appellant to 3 months’ imprisonment and a fine of $10,000.

9. In A.G. v. Li Wai Ming and another [1984] HKLR 324, Sir Alan Huggins (Ag CJ) had the following to say on page 325H:

 … 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. …

10. The gambling establishment involved in the present case was operated in an organized way.  The Appellant has similar conviction records.  The term of 3 months’ imprisonment is, in my judgment, entirely appropriate.  Even though suspended sentences were imposed on the other co-defendants, I do not think there is any basis for disturbing the 3-month term of imprisonment.

11. On the facts of the case and in view of the Appellant’s previous records, there would, on the face of it, have been nothing improper in imposing a $10,000 fine on top of the 3 months’ imprisonment in order to serve deterrence purposes.  However, regarding the fine, there are indeed causes for concern.

12. First of all, there is nothing in the transcript which suggests that the principal magistrate had, prior to imposing the fine, inquired into the Appellant’s ability to pay the fine.  At that time the magistrate said to the Appellant, “A fine of $10,000, to be deducted from the bail money.  Any objection, a fine of $5,000?”  The Appellant objected to that.  Then the magistrate said that he would not have half of the fine deducted from the Appellant’s bail money. (Appeal bundle, page 34U)  

13. I pause here to stress that, before imposing a fine on a defendant, a magistrate has a duty to inquire into the defendant’s ability to pay a fine.

14. Later, the Appellant made the following enquiry with the principal magistrate, “Your Worship, I would like to seek clarification on this: regarding the $10,000 fine imposed on me, if I cannot pay it by the 28^th, is it correct that I will have to be imprisoned for one month?”  The magistrate answered, “Yes.”  (Appeal bundle, page 35H)

15. Since the fine was imposed on 12 January, the magistrate was in fact allowing the Appellant 14 days to pay the $10,000 fine, and if he failed to do so, he would be imprisoned for one month.

16. What happened afterwards?  Why did the Appellant lodge a complaint regarding the fine?  The magistrate’s further written statement and the CSD’s documents show that, when the magistrate signed the warrant of commitment on 12 January, he did not state in writing that the bail money could not be applied towards the fine or that the money found on the Appellant should not be applied towards the fine.  The money involved in this instance was in fact the bail money paid by the Appellant to the police, and that money had not been “transferred” to the court.

17. The CSD invoked rule 11(1) of the Prison Rules, Cap. 234 of the Laws of Hong Kong in applying the whole of the bail money refunded to the Appellant by the police towards the fine.  Rule 11(1) provides that: “Money found on a prisoner committed for non-payment of a fine shall, unless a magistrate otherwise directs in writing on the warrant of commitment, be applied towards the fine adjudged to be paid.”

18. On 8 February, the Appellant lodged a complaint to the principal magistrate against the CSD’s application of his bail money towards the fine.  Upon making enquiry with the court clerk, the principal magistrate came to know that it was not stated on the warrant of commitment that the fine should not be deducted from the bail money.

19. The principal magistrate stated that, although the Appellant sought a refund of the money, the 14-day statutory time limit for reviewing the order had expired by 8 February, and therefore the magistrate had no power to amend the previous order.  He pointed out that as part of the fine had been paid, he clarified the order by expressly stating that the Appellant would only be imprisoned for 14 days if he failed to pay the balance of $5,000.

20. The principal magistrate said that in fact he did not amend the previous order.  He amended the warrant of commitment to “Leave be granted for the balance of the fine in the sum of $5,000 to be paid on or before 30 April 2007, with 7 days’ imprisonment in default of payment.” (emphasis added)  The CSD, baffled by such amendment, wrote to the principal magistrate seeking clarification.  Later, on 28 February, the principal magistrate clarified the warrant of commitment by amending it to “The balance of the fine in the sum of $5,161.30 shall be paid on or before 30 April 2007, with 14 days’ imprisonment in default of payment.”

21. I have had an opportunity to read the warrant of commitment signed by the magistrate on 12 January, which stated that the Appellant was to pay the fine of $10,000 and he would be imprisoned for one month if he failed to make immediate payment.  Since the magistrate had told the Appellant in court that he could pay the fine within 14 days, the magistrate was obviously in error when he did not state clearly in the warrant of commitment that the Appellant was given 14 days in which to pay the fine.

22. As the principal magistrate did not state in the warrant of commitment that the Appellant could pay the fine on or before 28 February, the CSD, relying on the Prison Rules, applied the bail money refunded to the Appellant by the police towards the fine.  This apparently gave rise to a series of complaints and made the Appellant feel that he had nowhere to turn to and also feel deeply aggrieved at the deducted amount.

23. This unfortunate incident was caused by the oversight of the principal magistrate.  Having considered the matter as a whole, I take the view that the fairest approach in the circumstances is to set aside the original order of fine.  Therefore, I allow this appeal to the extent that the order of fine is set aside.