HKSAR v. HO WAI KEUNG

HCMA 59/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 59 OF 2005

(ON APPEAL FROM KCCC 12678/2004)

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J U D G M E N T

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1.  This Appellant was convicted after trial, in the Magistracy, of Operating Gambling in a Place which was not a Gambling Establishment.  He was fined $20,000 and sentenced to 4 months’ imprisonment suspended for a period of 3 years.

2.  The charge resulted from a police operation carried out in a public garden.  Police observed a man identified as the Appellant, setting up a gambling stall, leaving the scene and returning with a group of people, who then played “Sap Sam Cheung”.

3.  The police observed groups crowding around a person responsible for shuffling the cards; some people would pay out money after comparing cards, and some would receive money from the Appellant, who also pocketed some of the money.  The police observed five games during which the role of the Appellant remained the same.  Eventually the police seized the Appellant and other gamblers and arrested them.

4.  The Magistrate accepted the evidence of the police officers and convicted the Appellant.  The Appellant complained an appeal that on the day he was detained wrongly by the police and that there were discrepancies in the evidence which the Magistrate ignored.  He claimed that he was cycling outside the park area when the police caught him and took him back to where the gambling was taking place.  Although he told them he was not involved, he was accused by the police of “talking back” to them.  He alleged that all the police were lying and that although they had used video cameras, none of the tapes were shown in court.

5.  I considered the Magistrate’s Statements of Findings in light of the Appellant’s allegations, but I can see no reason to disturb the Magistrate’s conviction of this Appellant and the appeal against the conviction is dismissed.  I am satisfied the Magistrate assessed the evidence correctly, and that he was entitled to believe the police officers, as obviously he did.

6.  The Appellant also appeals against his sentence which appears to be quite a high one, although the combination of a heavy fine and a suspended prison sentence is not uncommon for these offences.  The Magistrate made it quite clear that he believed that this was a prevalent offence in the area.

7.  The Magistrate considered a deterrent sentence necessary because of the prevalence of the offence.  Other factors which influenced sentence were the age and previous record of the Appellant, which included a less serious gambling offence in 2004.

8.  In his Reasons for Sentence the Magistrate described this operation as “a highly organized form of street gambling establishment”.  Clearly that was an over-statement.  It requires very little organization, staff or equipment to set up a betting game in a public park, as happened here.

9.  For that reason it appears that the total sentence was pitched too high, particularly as the maximum period of suspension was imposed on a not insubstantial prison term.

10.  Accordingly, I allow this appeal against sentence to the extent of substituting a fine of $10,000 for that of $20,000.  I leave undisturbed the suspended sentence as imposed by the Magistrate.