HKSAR v. LEE WAI TUNG

DCCC 363/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 363 OF 2014

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted after trial of one charge of engaging in bookmaking, contrary to s 7(1)(a) of the Gambling Ordinance, Cap 148 (Charge 1) and one charge of wilfully obstructing a police officer in the due execution of his duty, contrary to s 36(b) of the Offences  Against the Person Ordinance, Cap 212 (Charge 2). 

The facts

2.  The facts are as stated in my Reasons for Verdict and I will not repeat those.  Very briefly stated, as regards Charge 1 the defendant in June 2010 operated a centre for placing and receiving bets concerning horse racing in Hong Kong from a premises in an industrial building.  The actual total amount of bets received by the defendant during the charge period cannot be ascertained but there is evidence that it would be about $78,000.  Whilst that amount does not appear to be very substantial, the defendant must have invested some money in the premises which he rented and used for bookmaking.  The premises were well set up in that there were 13 display screens or monitors mounted on the wall.  There were also computers and internet facilities to assist the defendant in his bookmaking activities.  There was in place a CCTV system which allowed the defendant to monitor the activities in the corridors of the floor where the premises were situated and the floor immediately below it, which was clearly a means to avoid detection.  The monthly rental of the premises was $4,500 and the monthly fee for the server was $360.  I find that there was a degree of planning and sophistication involved in the defendant’s operation as a bookmaker.  On the other hand, in view of the small amount of the bets involved, the defendant’s bookmaking cannot be said to be a substantial one.  In my assessment, the scale of the defendant’s bookmaking operation was of a medium size. 

3.  As regards Charge 2, the obstructing act was the defendant’s attempt to shut the metal grille of the premises when he became aware that the person (PW2) who asked for access was not a member of the management office of the building but a police officer in disguise.  There was also an ensuing struggle between the defendant and PW2 which resulted in minor injuries to both of them.  The injuries sustained by PW2, namely the scratch on his left forearm and the sprain of his right little finger and neck, were accidental and not the result of the deliberation act of the defendant.  The whole incident lasted for only a few seconds. 

Antecedence

4.  The defendant is now 48 years’ old.  He has education up to Form 4.  He is said to have engaged in mobile phone trading between 1984 and 2011.  He formally divorced his wife in January 2013 and has a daughter and a son from that marriage.  He is now living with his son (a university student of 20 years’ old) in a public housing estate.  Mr Chandler is instructed that the defendant is “a Jack of all trades” earning on average $40,000 to $50,000 a month. 

5.  The defendant has 4 previous criminal records, including assaulting a police officer (1983); gambling a gambling establishment (1984); fighting in a public place (1986) and engaging in bookmaking (1999).

Mitigation

6.  Mr Chandler relies on the Chronologies of Events and submits that there has been undue delay on the part of the prosecution which has resulted in significant stress for the defendant.  Reference is made to the case of R v William Hung[1]. I note that whilst the Court of Appeal recognised in William Hung that the trial court has a discretion to give a discount for undue delay, there was no detailed discussion in that judgment as to the factors to be taken into consideration.  Upon repeated enquiry by this court as to how the defendant’s life had been affected by the delay, Mr Chandler said that (i) the delay had adversely affected the defendant’s marital relationship which eventually led to the divorce in January 2013; and (ii) the defendant’s attempt to find a stable job as an employee had also been thwarted, as he had this case hanging over of his head. 

7.  As regards Charge 2, Mr Chandler submits that the obstruction only lasted for a very short period of time and that the injuries of PW2 were not intentionally inflicted by the defendant. 

Starting points

8.  In fixing the starting point for Charge 1, I note that it is said in Attorney General v Li Wai Ming & Another[2] that immediate custodial sentences should be considered, possibly in addition to a fine, in all but minor cases for engaging in bookmaking.  I take into account the scale of the defendant’s bookmaking operation, that the offence continued for a period of about three weeks and that the bets received by the defendant would be about $78,000 in total.  Having considered R v Yip Kam Fai & Anor[3]; and HKSAR v Sum Chi Chung[4], in my view, the appropriate starting point in the present case for Charge 1 is 9 months’ imprisonment. 

9.  As said in LI Wai Ming’s case, in addition to the imprisonment term, there should also be a fine on Charge 1 which, the case authorities say, should be heavy enough to constitute an effective deterrent.  In fixing the level of the fine, I note that the defendant was sentenced to a suspended sentence and a fine of $40,000 in 1999 for a similar offence.  On the other hand, I bear in mind that the total amount involved in the present case was only about $78,000 and therefore the defendant’s profit would be lesser.  Also, I have to take into account the defendant’s financial means to meet the fine. In my assessment, a fine of $20,000 would be appropriate.  Mr Chandler informed that the defendant has sufficient means to meet that fine if ordered and the fine can come from the defendant’s bail money.

10.  As regards Charge 2, I accept that the defendant did not intend to inflict injuries on PW2.  The degree of obstruction was also relatively minor when compared with similar cases.  Moreover, the obstruction only lasted for a few seconds.  Having considered HKSAR v Rai Binay[5] and HKSAR v Cheung Wai Lung[6], I take 2 months’ imprisonment as the starting point.

Deduction for mitigation

11.  There was admittedly substantial delay on the part the prosecution.  It appears that the police had not thought about investigating the money laundering aspect of this case until shortly before 10 September 2012 when the defendant was arrested for that offence.  Then it took another 11 months before the police file was re-submitted to the Department of Justice for advice on money laundering.  The Department of Justice took 4 months to come up with a single charge of money laundering (Charge 3) in January 2014 (which eventually was not made out).  For reasons unknown, the defendant was not charged until 11 March 2014.  In my view, the delay is unreasonable and cannot be justified.

12.  It has been well-established that delay is not, of itself, a mitigating factor: see HKSAR v Chiu Chi Wing[7] citing with approval the judgment of Buss JA in Scook v the Queen[8] and the relevant commentary in Sentencing in Hong Kong by Cross & Cheung[9]. 

13.  I readily accept that the defendant would have experienced some stress because of his arrest.  However, I do not accept that the delay had caused him “significant” stress over and above that which other people may experience as a result of being arrested.  In particular, I do not accept the assertion that the delay had caused the defendant’s divorce.  I note that when the defendant attended the video-recorded interview on 10 September 2012, he said that he was about to get a divorce[10]. The defendant told the interviewer at that time that he was going to a firm of solicitors the following day to sign the papers for divorce.  Therefore, the defendant’s relationship with his former wife must have already become irremediable before September 2012.  As such, I am unable to see how the delay by the Police, especially that part of the delay which took place after September 2012, could have contributed to the defendant’s divorce to any significant extent, if at all. 

14.  As to the defendant’s alleged attempt to find a stable employment, I find it unrealistic that the defendant would have looked for a job as an employee when he can make $40,000 to $50,000 a month as a “Jack of all trades”. Furthermore, it is very unlikely that he could find an employment which could give him as much as he is earning in view of the fact that he is only educated up to Form 4.  Besides, in his antecedent statement, to which he agrees, there is nothing to suggest that he had ever worked as an employee. 

15.  In the present case, there is no information to show that the defendant had made any progress towards rehabilitation or that other circumstances favourable to him had emerged.  Besides, given that the defendant was arrested again on 10 September 2012 for money laundering and that he had to report bail from time to time after his second arrest, he could not have harboured any expectation, let aside reasonable expectation, that he would not be charged. 

16.  That said, the delay on the part of the prosecution in the present case is hardly justifiable.  Whilst I do not see any exceptional circumstances in the present case to order a suspended sentence, in my view some discount should be given to the defendant to mark the court’s disapproval of the dilatory conduct by the prosecution.  After having considered all the factors discussed in Scook v R, I give a deduction of one month each from the starting points of Charge 1 and Charge 2.  

Totality

17.  I am of the view that the defendant’s culpability in relation to Charge 2 was a relative minor one.  The offence occurred during the course of the investigation of Charge 1 before the defendant was arrested and it lasted only for a matter of seconds.  Also, the degree of obstruction was relatively minor as compared with similar cases.

18.  In view of totality, I order that the prison terms on Charge 1 and Charge 2 are to run concurrently. 

Sentence

19.  For Charge 1, the defendant is sentenced to 8 months’ imprisonment and a fine of $20,000.  The fine, I am told, can be deducted from the defendant’s bail money and I so order.  

20.  For Charge 2, the defendant is sentenced to 1 months’ imprisonment, such term is to run concurrently with the sentence on Charge 1.