HKSAR v. LUI KWAN KI AND OTHERS

CACC 222/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 222 OF 2006

(ON APPEAL FROM DCCC 1243 OF 2005)

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REASONS  FOR  JUDGMENT

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Beeson, J (giving the reasons for judgment of the Court):

On 27 September 2006 we dismissed the Applicants’ applications for leave to appeal against their sentences, saying we would hand down our reasons at a later date; those reasons follow.

Background

1. The four Applicants and six other men were charged jointly with one count of Conspiracy to Operate a Gambling Establishment, contrary to s. 5(a) of the Gambling Ordinance, Cap. 148 and s.s. 159A and 159C of the Crimes Ordinance, Cap. 200.  For ease of reference, the designations of the Applicants at trial are retained.

2.  D4, D5 and D6 pleaded guilty before Deputy District Judge Mackintosh at the beginning of the trial.  D7 was found guilty after trial.  D4 was sentenced to 10 months’ imprisonment, D5 and D6 to 8 months’ imprisonment and D7 to 15 months’ imprisonment.

3.  D4 to D6 appealed against their sentences only.  D7 appealed against conviction and sentence, but abandoned his appeal against conviction at the hearing of the appeal and this application was then formally dismissed.

Brief facts

4.  The conspiracy related to a gambling establishment operated outdoors in the Ap Lei Chau West Estate between 13 February 2005 and 10 May 2005.  It operated almost every day for a substantial portion of the day.  Three areas were used, although not all at one time.  The first was a pavilion behind Lei Ning House, the second was a point outdoors near Lei Tim House and the third position, also outdoors, was near Lei Ning House.

5.  It was an admitted fact (Exh. P1) that there were 20 incidents of gambling and their locations, dates and times were agreed.  Participants in the gambling were mainly local residents.  The game played was “Sap Sam Cheung”.  It was agreed that play was for winning money and the operation was by way of trade or business.  Bets of at least $100 would be called out and confirmed, and the operators took commission of 3% from the winning player’s winnings, which would be settled after each hand was played.  Commission was placed in a bag which was emptied periodically and the next round of cards would commence immediately.  A grocery store nearby was used to store gambling and other paraphernalia. 

6.  Personnel from the syndicate took various roles in the operation.  For every hand played there would be one person who shuffled and dealt cards; one who placed Chinese chess pieces to indicate different sizes of bets and another who was responsible for the commission bag and collection of the commission.  Lookouts would be posted to warn of any police approach; this would lead to a general dispersal.  Other persons were responsible for setting out and packing up the furniture and gambling paraphernalia. 

7.  Gambling usually commenced about 10:00 a.m. and continued until about 8:30 p.m.  At least 6 members of the syndicate would be present.  The outdoor locations meant the gambling depended on the weather.  At night, or if the natural light was poor, lighting was run from a nearby source.

8.  The main witness was an undercover police officer (PW1), who, from mid-January 2005, posed as an ordinary resident of the estate.  To do so he lived in a unit on the estate and adopted a living pattern consistent with that of a local resident.  A safe house was set up and used by PW1’s handlers for briefings, contact with handlers and the provision of marked money which enabled PW1 to join in as a gambler.

9.  When D4, D5 and D6 pleaded guilty they agreed a Revised Summary of Facts (B5 – B11), which showed their roles as noted by the undercover officer.  D4 had taken part in the operation on 12 of the 20 occasions which were detailed.  In his cautioned statement, D4 admitted that he had dealt cards, placed bets for punters and kept custody of the commission bag.  As for D5, the undercover officer had watched him assisting the operation on at least 13 of the 20 occasions about which he gave evidence.  Under caution, D5 admitted that he had helped in the operation and received monetary compensation for doing so.  The undercover officer noted that D6 had helped on 14 of the 20 occasions.

10.  PW1 gave evidence about the role of D7, who took part in various activities in 14 of the 20 incidents.  He was seen placing chess pieces for the punters signifying the size of bets; shuffling and dealing cards; handling the commission bag and money; calling out “last two rounds” (a signal that betting was over for the day); acting as lookout; clearing up and moving furniture back to the store.

11.  The judge was impressed by PW1’s evidence and accepted him as credible and reliable, recognising the personal difficulties and dangers he faced.

Judge’s approach to sentence

12.  The judge assessed the gravity of the offence by the size, complexity and the duration of the operation.  For size, he took into account the number of persons involved in operating, the number of gamblers on a daily basis, the different locations and the equipment provided.  Gamblers numbered from “a few” to 40 at any one time.  13 operators were involved.  The judge found that a high degree of planning and organization existed.

13.  The judge did not attempt to estimate the turnover or the commission earned, but was willing to draw the inference that it was substantial.  Another matter relevant to sentence was the persistence of the illegal conduct in the area around this time.  As their criminal records showed, some of the Applicants had been convicted earlier of similar offences about the same time and in the same place.  Police raids were carried out regularly during the period of the covert operation, but failed to stop the gambling.

14.  The judge referred to “the culture of gambling” that existed in the Ap Lei Chau West Estate.  Presumably this culture and the persistence of the gambling activities in the area led to this lengthy and, no doubt, expensive undercover operation. 

15.  Although the judge considered and rejected an application under the Organised and Serious Crime Ordinance, Cap. 455 (OSCO) for enhanced sentences for D1 and D2, he found nonetheless that the evidence of prevalence was inescapable and that illegal gambling was “a serious, significant and persistent problem in this estate”.  (B40)

16.  In setting a starting point, the judge took account of the different culpability of each Applicant.  Those who exercised more, or greater, management and control were sentenced more heavily.  Accordingly, D1 and D2 who had major roles were each sentenced to 18 months’ imprisonment.

D4’s Sentence

17.  D4 had a number of previous convictions, including 7 for the lesser offence of Gambling in any place not being a gambling establishment, contrary to s. 13 (2) of the Gambling Ordinance.  All were between 9 August 2004 and 18 April 2005.  He also had one conviction for Operating a Gambling Establishment (s. 13(1)(a)).  The judge took a starting point of 15 months’ imprisonment, and reduced it to 10 months’ to reflect his plea of guilty.

D5’s Sentence

18.  The judge considered that D5’s role was similar to D4’s, but D5 only had 5 previous convictions for offences under s. 13(2) of the Gambling Ordinance.  A 12 months’ starting point was adopted and reduced to 8 months to reflect his plea.

D6’s Sentence

19.  The judge treated D6 as he had D5.  D6 had 3 recent convictions for s. 13(2) offences, but none for managing or operating a gambling establishment.  He dealt with D6 as an assistant, took a 12 months’ starting point and reduced it to 8 months for his plea of guilty.

D7’s Sentence

20.  D7, who had been convicted after trial, had one previous conviction for a s. 13(1)(a) offence which, the judge noted, was dated 22 February 2005 and related to the same place, the same establishment and with others involved in the instant case.  He had been fined a small sum for that offence.  He had three s. 13(2) convictions.  The judge imposed 15 months’ imprisonment and in the absence of cogent mitigation gave no discount.

Grounds of Appeal

21.  D4, D5 and D6, represented by Mr Jeff Ho of counsel, advanced similar grounds of appeal.  The first was that the trial judge erred in not adopting a starting point of 9 months, as “stipulated” in HKSAR v Lai Pui Sang CACC 122 of 2003, when the facts showed this was not a more serious case than Lai Pui Sang.  Thus the starting point of 12 months for the 5^th and 6^th Defendants was too high.

22.  It was alleged also that the judge had taken other matters into account wrongly.  These included:

(a)     accepting information given by DSIP Yeung Yiu-cheung in support of the Prosecution’s application under the Organized and Serious Crimes Ordinance, Cap. 455 to enhance the sentences of D1 and D2;

(b)    treating previous similar convictions of defendants other than the 5^th and the 6^th Defendants as an aggravating factor for this offence; and

(c)     placing too much weight on the similar convictions of D4, for offences under s. 13(2) of the Gambling Ordinance, while accepting that it was a much less serious offence than that charged in the instant case.  The starting point for D4, substantially increased to 15 months, was too high.

23.  For D7, Mr Andrew Kan, of counsel contended the judge erred in adopting a starting point of 15 months on sentence and in failing to follow Lai Pui Sang; thus D7’s sentence was manifestly excessive or wrong in principle

Lai Pui Sang Considered

24.  The gravamen of the appeal was that the judge without justification had treated this case as being more serious than Lai Pui Sang.  Counsel for the Applicants appeared to regard and rely on Lai Pui Sang as a guideline or tariff case, despite their protestations to the contrary.

25.  In Lai Pui Sang, a judgment delivered in Chinese by Justices of Appeal Woo and Yuen in August 2003, the facts were similar to those of the present case.  The Appellant Lai, together with 7 other people, was charged with one count of conspiracy to operate a gambling establishment.  7 days into the trial, the defendants pleaded guilty.  The Deputy District Judge adopted 1½ years’ imprisonment as the starting point for sentence.  As the defendants had pleaded guilty only after the trial had commenced, a discount of only 4 months was given; each defendant was sentenced to 1 year and 2 months’ imprisonment.

26.  Counsel for Lai appealed, alleging that the judge:

(1)     placed too much weight on the gambling establishment having been operated in a public area; and

(2)     failed to consider the secondary role of Lai who was assisting in the management of the gambling establishment as an employee.

27.  That case too resulted from an investigation by an undercover police officer who participated in “Sap Sam Cheung” gambling.  The establishment operated from approximately 1:00 p.m. to 6:00 p.m. – 9:00 p.m. each day.  On average 10 to 20 people gambled at the table and the daily commission obtained was approximately HK$9,000.00.  The Appellant Lai appeared on 9 days during the conspiracy period; each time his task was to collect the commission.

28.  The Deputy District Judge accepted that Lai was only an employee, earning HK$100.00 to $300.00 each day and not sharing the profits.  The court considered his role was important, because only with such co-operation could the operator run such a large scale gambling establishment for such a lengthy period.  The Appeal court noted that in no previous appeals had a sentence longer than 9 months been upheld for those assisting in the operation of a gambling establishment.

29.  We note that the lack of precedent sentences may be attributable to the fact that it is not common for the police to conduct an undercover operation in cases involving gambling establishments.

30.  The Appeal court agreed that Lai was an employee, but as without his help illegal gambling could not continue, said his sentence should have a deterrent effect.

“Having considered the laws, the role of the Appellant and all the circumstances of the case, especially the fact that the gambling establishment was operated in a public area in a public housing estate, the starting point should be 9 month’s imprisonment.  Since the Appellant pleaded guilty after the case was tried for 6 days, saving 8 days time, the Court would reduce the sentence to 7 months’ imprisonment.”

31.  In his Reasons for Sentence the judge noted (B44E) that Lai Pui Sang ‘offered substantial guidance’ but did not lay down guidelines.  It was not clear from that judgment if there was the same level of organization and planning, or the same persistence as in the instant case, but the judge did agree the circumstances were similar in some respects.

32.  From the facts of the report, it seems that Lai was less serious; the establishment in the instant case operated very much more publicly, at any one of three different locations.  The pavilion, which was provided for the enjoyment of all the inhabitants of the estate was monopolised by the gamblers.  It was overlooked by some of the estate flats.  All three gambling areas were visible and accessible to passers-by.

33.  The average number of players appears to have been larger; the hours longer and the staff more numerous.  An exacerbating factor was the persistence of the operation which continued blatantly despite regular police raids.

34.  Counsel for the Applicants objected to the judge referring to this material, but it was part of the background of the case and he was entitled to refer to it for the purposes of sentence.  No objection had been taken to that material when it was referred to at trial, nor when the prosecution made their unsuccessful OSCO application.

35.  This was a long-running gambling establishment; whether operated by one syndicate or more than one was not really material.  The usual police attempts to stop the activities were laughed at.  The operators were brazen, commandeering the pavilion and when necessary, two other sites on the estate.  The local store was used for storage.  Lighting was provided so gambling could continue when visibility was poor, or in the evening.

36.  The residents’ daily use and enjoyment of the estate facilities were disturbed.  Any inconvenience to residents was ignored by the operators who, presumably, could frighten them into silence if any complaint was contemplated.

37.  Having considered all the facts of the case, the maximum penalty and the way the judge assessed the sentences we cannot say these sentences are excessive or wrong in principle.  Accordingly these applications for leave to appeal against these sentences are dismissed.