THE QUEEN v. CHIU WAI KEUNG AND OTHERS

Headnote

                When considering a sentence of imprisonment for offences contrary to Sec. 6 of the Gambling Ordinance, Cap. 148, the previous convictions of the defendant are not irrelevant.

                A.G. v. Ho Sik Yan [1984] H.K.L.R. 327 considered.

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JUDGMENT

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Cons, J.A. delivered the judgment of the Court:

1. These are five appeals against sentences imposed for the offences of gambling in a gambling establishment contrary to Section 6 of the Gambling Ordinance Cap. 148. They have been referred to this Court by the Judge of the High Court before whom they were first placed. Each of the Appellants was fined $500 and sentenced to one month's imprisonment, suspended for twelve months.

2. Guidelines as to sentence for this offence were recommended in The Attorney-General v. Ho Sik-yan & Others⁽¹⁾ , decided in January 1982 although not reported until 1984. We need only refer to the last two of the guidelines suggested:

"(e)         That imprisonment for a section 6 offence should only be considered where peculiarly aggravating circumstances are disclosed.

(f)         That it is proper to use a suspended sentence of imprisonment only in cases where the circumstances are such that it is proper in the first instance to consider a prison sentence rather than fine or any lesser punishment."

3. These guidelines have been followed in the courts, as for example by Penlington J. in Magistracy Appeal 180 of 1984, where he upheld suspended sentences of imprisonment based on the previous convictions of the Appellants concerned.

4. We have been referred to a recent decision by Jones J. in Magistracy Appeal 635 of 1985 in which he set aside a sentence of six weeks immediate imprisonment upon a defendant who had six previous convictions.

5. We are told that some magistrates have interpreted that decision as intimating that previous convictions are, as a matter of principle, irrelevant to the question of imprisonment. We do not read the judge's comments in that way. He was dealing with the actual case before him, and it may be noted that only two of the previous convictions were recent and even for those only very small fines had been imposed. We do not think he was intending to lay down any general principle.

6. Clearly the Legislature, by the provision of a possible term of imprisonment, has in mind that there will be circumstances where imprisonment either suspended or otherwise is appropriate. And one of those circumstances, amongst whatever other circumstances there may be in any particular instance, must be the defendant's previous history. If a person should persist in breaking this particular law, despite a series of increased fines, there must come a time when the sterner measure sanctioned by the law is required.

7. Each of the Appellants has a bad record for gambling and in the light of those the learned magistrate came to the conclusion that for each the appropriate point had been reached. We see no reason to say that he was wrong.

8. For these reasons the appeals are dismissed.

(1)   [1984] H.K.L.R. 327