ATTORNEY GENERAL v. LI WAI MING AND ANOTHER

Criminal law - Sentence - book-making contrary to s.7(a) of Gambling Ordinance - in all but minor cases court should seriously consider an immediate custodial sentence, possibly in addition to a fine.

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JUDGMENT

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Sir Alan Huggins, Ag. C.J.:

1. These are applications by the Attorney General for review of sentences imposed upon the Respondents for an offence under s.7(a) of the Gambling Ordinance for book-making. The 1st Defendant was fined $400 and the 2nd Defendant $650.

2. Guidance as to the appropriate sentence for an offence under this Ordinance was given by this Court in Attorney General v HO Sik-yan & others Application for Review 1981 No. 16, but it would appear that the case was never reported and may not have been brought to the attention of the magistrate in this case.  Certainly the sentences he imposed were on the low side even for an offence under s.6 and were manifestly inadequate for an offence under s.7 (or s.5, operating a gaming establishment), quite apart from the further inflation since 1982.  We shall not repeat what was said in Attorney General v HO Sik-yan but content ourselves with endorsing everything that was there said both as to the intention of the Legislature when the existing Ordinance was passed and as to the proper sentence for a s.6 offence. Mr. Lucas submits to us a schedule, which, he says, indicates that even the sentences suggested by this court have not been successful in reducing substantially the incidence of offences under the Ordinance.  Mr. Poll rightly points out that as that case was confined (at least directly) to offences under s.6 the schedule does not really assist.  It does show that the average sentence under s.6 is lower than the suggested level and that the number of such offences has not been substantially reduced, but it does not necessarily follow that there has been no reduction in the offences under s.7.  The schedule also shows that a fine has been imposed in the vast majority of cases brought under that section and that nearly a thousand convictions were recorded in 1983.

3. Upon the strength of these figures we are invited to consider whether the time has come for us to indicate that an immediate custodial sentence is appropriate in the average case under ss.5 and 7, with a view to effecting the intention of the Legislature when it recast the legislation in 1977. Both for the principal offender and for anyone who assists him s.7 prescribes as the penalties (i) on summary conviction a fine of $500,000.00 and imprisonment for 2 years; or (ii) on conviction on indictment a fine of $500,000.00 and imprisonment for 7 years.  Mr. Lucas submits that in practice the courts have to rely upon defendant's own statements of their means, because the resources are not available for thorough investigation of means in every case : consequently where fines are imposed they have little, if any, deterrent effect and are treated as minor overhead expenses of the illegal business.  This, of course, is a difficulty which faces the courts in numerous cases for offences in respect of which a fine has been prescribed as a possible penalty, and we should not be too ready to conclude that an immediate custodial sentence is therefore the answer.  Nevertheless we must be realistic and recognize that large profits are being made by those engaged in running illegal gambling activities, not to mention the undesirable side effects of such activities. On the other hand, in many cases - particularly in Hong Kong - the defendant will be a person who has either no, or a very modest, lawful income and any fine which is within his means to pay will be incommensurate with the profits his illegal activity was likely to generate, and thus constitute no deterrent to him or to anyone else.

4. We are reluctant to say anything which might be regarded as limiting the discretion of the magistrates, but we do suggest that in all but minor cases under ss.5 and 7 the court should seriously consider whether an immediate custodial sentence is not appropriate, possibly in addition to a fine.  If a fine alone is imposed, it should be heavy enough to constitute an effective deterrent.

5. We have already indicated that we think the fines imposed here were manifestly inadequate. Mr. Lucas accepted that, as these were applications for review, it might not be just for us to impose immediate custodial sentences. We agree.  He then argues that, by reasons of s.7(c) the magistrate was wrong to regard the fact that the 1st Defendant was responsible for instigating the offence and that the 2nd Defendant was merely assisting him as a factor which could justify differentiating between their sentences.   Although there is some force in the argument, we do not think it can have been the intention of the Legislature that an assistant must always receive the same sentence as his principal, everything else being equal: the Court may nevertheless have regard to their respective blame-worthiness.  Here,however, the 2nd Defendant had a previous conviction and the 1st Defendant had not.  Even giving effect to the magistrate's implicit finding that the blame-worthiness of the former was greater than that of the latter and remembering that exhibits, some of which were the property of the 1st Defendant, were confiscated, we think that it is proper to substitute a fine of $15,000.00 in each case with imprisonment for 6 months in default.