ATTORNEY GENERAL v. FUNG CHUNG-PING AND ANOTHER

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application by the Attorney General with the leave of the Chief Justice for review of sentences imposed for operating a gambling establishment by Miss R. Morrison in the Causeway Bay Magistrates' Court. These two Respondents were convicted after a three-day trial and each was bound over in the sum of $1,000 for twelve months with an order that no conviction be recorded.

2. The papers before us include the "Statement of Facts and Reasons for Sentence". There is in truth no Statement of Facts at all. The Statement begins with the words "The facts are as contained in the record of proceedings which is held to be herein. repeated brevitatis causa." It is perfectly proper for a Statement of Facts to be annexed to Reasons for Verdict or Reasons for Sentence where the facts are clear, but in the present case it is manifest that the magistrate has completely failed in her duty to make any findings of fact. There are unfortunately at least four other serious errors in this Statement of Reasons. The magistrate states that some "agents provocateurs" gained access to the premises. The under-cover agents who gave evidence in this matter were never agents provocateurs in this matter: they had reason to believe that an offence or offences were being committed and they went into the premises for the purpose of obtaining evidence of those offences - not to cause the Respondents to commit offences. It is then said that in binding over the two Respondents the magistrate took account of the fact that the police had fixed bail at $1,000 and it is suggested that that showed that the police were aware of the small scale of the enterprise. It showed no such thing: it showed merely that the police considered that that sum was sufficient to ensure the attendance of the Respondents. The amount of the bail was totally irrelevant. She then took notice of what she stated to be a fact, that the gamblers who were in the establishment were fined small amounts, though she said that this had no bearing on the sentence which she passed. The fact is that the gamblers were not fined at all but were "bound over" - presumably to be of good behaviour. No convictions were recorded in their case. They were ordered to pay costs.

3. Perhaps the worst aspect of this so-called Statement of Facts and Reasons for Sentence is contained in the last paragraph. The magistrate said:

"My intention in the 'binding over' was that there be a deterrent against repetition of the offence. Neither defendant had a previous conviction of any nature. Would you have preferred me to put them in prison?"

How such a rhetorical question could be considered proper in a statement of findings is beyond understanding. It was grossly improper.

4. Unfortunately we are left with very little information about the true nature of the offence. Beyond what we have already said we are told that there were twenty persons who were convicted of gambling, and they were presumably in addition to the under-cover agents. We are told that an excess charge beyond that allowed was made for the hire of the gambling tiles. We have no information as to the means of these Respondents or of the amount of money which was involved in the operation. We therefore wish to make it clear that in allowing this application and imposing a fine we do so without intending to lay down any form of guideline for future cases: we are compelled to impose a fine which would be the very lowest possible which we think could be imposed in a case of this kind. Substantially heavier sentences will often be justified. This much we can say, that it is almost inconceivable that for an offence of this kind no conviction should be recorded. We were referred to the judgment of Silke, J. (as he then was) in TSE Yuk-lin v Reg. Crim. App. 1981 No.320, where he made observations which are similar to those which have been expressed on many occasions in this court. He referred to s.36 of the Magistrate Ordinance and said :

"In my judgment if the section were read as permitting nominal punishment to be inflicted, or no punishment at all, in the light of the character, antecedent, age, health or mental condition of the offender or the trivial nature of the offence itself or the extenuating circumstances under which that offence was committed without going on to order that no conviction be recorded a lot of the difficulties would be overcome. It is advisable that the non-recording of a conviction should, in the majority of cases, be restricted to the rare instance where the Court feels that, while an offence has been committed, no prosecution should really have been brought at all."

Once again we draw attention to this view and we are satisfied that the present clearly was not a case where the possibility of not recording a conviction came into the picture.

5. I should mention that counsel for the Attorney General has suggested to us that this might well be a case which was not appropriate for a fine but for a suspended sentence of imprisonment. Our attention was drawn to the case of HO Sik-yan v Reg. 1984 H.K.L.R.327, where for the lesser offence of illegal gambling in a gambling establishment this court laid down as a guideline a fine of $600-$700. Counsel indeed suggested that application might well have been made here in the case of the gamblers for a review of their sentences. The importance of the case cited goes beyond the actual guideline to the discussion by the court of the object of the Legislature in making the amendments to the Ordinance in 1977. Finally our attention was drawn to TANG Hang-chung v Reg. Crim.App. 1982 No.565, where McMullin, V.-P. delivering the judgment of the Court of Appeal said:

"In s.5 the 'operator' is put in a category by himself, distinct from the person who manages or otherwise has control. It seems reasonable to suppose that the legislature viewed the operator as the person in overall control, the person with the final say in how, where and when, and even whether, the enterprise is to be carried on."

The Respondents were in this class. Bearing in mind that this is a review and, as I have said, without laying down any guideline as to the size of a fine in such cases, we think this application must be granted and that sentences of fines of $5,000 should be imposed on each of the Respondents, with a term of imprisonment for three months in default of payment.

1st August 1985