HKSAR v. CHAN SIU WAH

HCMA 1019/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1019 OF 2003

(ON APPEAL FROM TWCC 1610 OF 2003)

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J U D G M E N T

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1. The Appellant was convicted on his own plea of a charge of 'Operating a Gambling Establishment'. When the brief facts were read out to him, the Appellant had admitted that the facts were correct.

2. In mitigation, the Appellant told the learned Magistrate that his main purpose was not to draw a commission to earn money but that the money was just for his friend's convenience for paying rent and meal.

3. Following his mitigation, the learned Magistrate sentenced the Appellant to one month's imprisonment suspended for three years and he was fined $2,000.

4. On 25 September 2003, the Appellant sought to withdraw his plea and have his conviction set aside and before the learned Magistrate, he stressed that he did not know what a gambling establishment was; he said he was misled; he had thought it was a trivial matter and he thought the conviction and sentence were unfair to him.

5. It is clear from the transcript of the 25th of September, 2003, that the Appellant confirmed that he was aware that the charge was one of operating a gambling establishment and he had also confirmed that the brief facts were correct.

6. The learned Magistrate correctly reminded himself of the ambit of his discretion when deciding whether to allow the withdrawal of a defendant's plea. Basically, if he found that the plea had been equivocal or that the plea was involuntary or it was not an offence known in law, then he could use his discretion to allow the withdrawal. The learned Magistrate very correctly, after considering all the factors in this case rejected the Appellant's application. The Appellant today appeals against that refusal and today the Appellant has raised the same points that he had raised before the learned Magistrate. Again, it seems the crux of his submission is that he felt that the sentence meted out on him was too severe and that the other persons were not given similar sentences.

7. I had to remind Mr Chan that he has only appealed against his conviction and not sentence. He then repeated again that he was not aware what the charge was; that the plea was not voluntary and he had been told it was a stunt gun offence and not operating a gambling establishment. I find that his appeal is totally without merit and I have no hesitation in dismissing his appeal.