THE QUEEN v. WONG SUEN CHEONG AND ANOTHER

1992, MA876 & MA682

HEADNOTE

Magistrate's appeal - operating a gambling establishment - custodial sentence - suspension.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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J U D G M E N T

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1. I have heard these two appeals against sentence together as both involve operating a gambling establishment. The facts in MA682/92 were that the police had kept watch on premises and there were lookouts. The police were able to enter these premises and found 32 people gambling.

2. It was clearly, as Mr. Hill (the magistrate in both cases) held, a well organized illegal gambling operation. A large number of people were playing Baccarat. It has been said on a number of occasions that the operation of illegal gambling is a serious matter, because it leads to organized syndicates utilizing this method of obtaining money. It can lead to further crime, cause violence and serious public disturbance and, therefore, it is a serious offence for those who operate these gambling establishments. There are, of course, some that are fairly trivial, or perhaps more for amusement or pleasure, but others such as these use gambling for substantial sums of money.

3. There have been apparently differences of approach in the sentences passed by magistrates for this type of offence and it causes injustice among people when some people are fined, and as here, on a plea of guilty, others are sentenced to imprisonment.

4. Mr. Hill is a very experienced magistrate and I naturally pay the greatest respect to anything which he says. However, it appears to me that this was a classic case, insofar as 992 is concerned, for a custodial sentence to be suspended.

5. I say that for these.reasons. First, he sentenced a man who had pleaded guilty and who had one very minor previous conviction, to 6 months' imprisonment. The starting point therefore, he must have had in mind, was either 9 or 12 months because he must give a discount, although he does not indicate it, for the plea of guilty. It may well be that he was influenced by the fact that, as he stated there have been a number of prosecutions in this particular area of illegal Baccarat. It is right therefore that the court should mark its disapproval in the strongest terms of this type of offence and make it known that those who do operate gambling establishments are likely to be given a custodial sentence.

6. Having regard to the facts of this case, it seems to me that a custodial sentence can be suspended. This has the additional sanction of the sentence hanging over the head of the person who has received it for a period of time and if he offends again then that sentence will be activated.

7. The 2nd Defendant was charged with assisting and was given 3 months' imprisonment.

8. As far as the facts of the other case is concerned, MA876, it was of a similar large gambling school playing Baccarat in the North Point area. 18 gamblers together with a substantial sum of money in chips were found. The magistrate said again "fines are meaningless. I consider terms of imprisonment the only way to deter people." He sentenced D1 to 3 months' imprisonment for operating. This Defendant had a clear record. D2 and D3 who were charged with assisting and had previous convictions also received 3 months. The magistrate may well be right in that approach, but he has not taken into account the fact that he has power to suspend. There have been instances when this has happened and I have been given a list of the variety of penalties imposed, although it is right to point out, the facts of each case may be different.

9. Those who operate large scale gambling schools merit custodial sentences. The magistrate must consider, particularly on a plea of guilty, and when dealing with people with either a clear record or minor convictions whether or not the sentence should be suspended. There may well be cases where immediate custodial sentences are necessary, for example, people who reoffend or where there are'other circumstances justifying the court taking a more serious view.

10. Having regard to all these matters, I intend to suspend the sentences here with certain variations and also impose a fine.

11. In MA682/92, the sentences will be D1 - 6 months' imprisonment, suspended for 18 months and a fine of $10,000. D2 - 3 months' imprisonment, suspended for 18 months and a fine of $5,000. suspended for 18 months and a fine of $5,000.