HKSAR v. CHENG KA HONG

DCCC 739/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 739 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to one charge of bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance, Cap.148.

2.  Particulars of the offence are that between 18 April 2011 and 7 May 2011, both dates inclusive, the defendant engaged in bookmaking.

3.  In addition, the defendant has pleaded guilty to five charges of money-laundering offences, that is dealing with property known or reasonably believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap.455. Those five offences involved five bank accounts over a period of 3 years and 5 months, between January 2009 and June 2011.  In total, the amount involved in all charges came to just over HK$6.35 million, but in reality, after a certain amount was double-counted, the real figure should be about HK$4.38 million.

4.  The facts of this case are straightforward.

5.  The police suspected the defendant and raided his home on 7 May 2011 armed with a search warrant.  The police suspected the defendant’s home was used as a base for soccer bookmaking gambling activities. Their suspicions were accurate and the police found evidence of bookmaking activity in the defendant’s home.

6.  The defendant’s personal computer was at the time of the raid logged on to two overseas gambling websites.  The police found other suspicious evidence, such as suspected betting slips, other computers, several mobile phones, and the defendant was arrested as a result of these discoveries.

7.  He admitted under caution that he was a “punter”, a gambler only.  He made no admission then as to bookmaking or at any later stage.

8.  Subsequently, a gambling expert examined the defendant’s desktop computer and what he found in many files was obvious evidence of bookmaking activities.  He worked out that over a three week period the amount of money placed on bets was over HK$3.2 million.  This amount included RMB710,000.  The expert was of the opinion that the defendant acted as a “general agent” an “ordinary agent”, as well as a “punter”.

9.  The defendant by his plea accepts the evidence against him proves he was involved in bookmaking activities.

10.  As a result of the defendant’s arrest the police investigated his past financial situation.  This involved five bank accounts. As I have said, the amount involved in these money-laundering charges and these five bank accounts is approximately HK$4.38 million.

11.  It is accepted that these moneys came from or were derived from bookmaking activities. 

12.  In this case, the predicate offence is identified and it is bookmaking activities.  The amount involved averages out at approximately $104,000 per month.

13.  The defendant pleaded guilty to all these offences.  That is his best mitigation.  He was also a man with a clear record.

14.  He is 34 years old and a married man with two young daughters.  He accepts now that his gambling problem has led to this activity and he now knows the serious consequences of his mistake and crime.

15.  I have heard very extensive mitigation from defence counsel and have been assisted by written submissions and authorities.

16.  I have had six letters in mitigation translated and they are from the defendant himself, his wife, his present employer, his pastor, a good friend, and his father.  I do not intend to repeat the contents of those mitigation letters but all give me a good insight into the defendant’s family life, past and, to some extent, personality. 

17.  He has expressed remorse and it is obvious that his family and friends accept that he is remorseful.  He has many friends and family in court today and yesterday to show him support, and obviously he is not the only one who will suffer from being punished for these offences.  As is usually the case, his young family will be grossly affected.  Sadly, that is a factor the defendant should have considered when engaging in illegal activity. However, I am sure his remorse is genuine and hopefully long-term. 

18.  I know his wife from medical reports is not of great health, both physically and mentally, and will now probably be under more pressure due to the defendant’s imprisonment, but for the sake of herself and her young daughters I hope she continues to seek professional medical help and has the support of the many friends and family who have shown support for the defendant.

19.  These offences are serious offences and the courts have and will continue to impose deterrent sentences to reflect this. 

20.  I have considered the facts of this case and accept defence counsel’s submission that the facts of this case do not reflect the most serious case for offences of this nature.  The most recent and influential authority becomes very relevant, the authority of HKSAR v Boma [2012] 2 HKLRD 33, and the factors that have been set out for me in mitigation and the ones I consider most relevant derive from this authority, and after applying those factors I made the above finding, agreeing with defence counsel.

21.  In this case the amount of money is significant but not an exceptionally excessive amount. 

22.  The predicate offence is identified and relevant:  it is bookmaking.  It is not money derived from drug trafficking or triad activities.  The defendant is a lone offender, working alone.  There is no evidence of a syndicate or sophistication in this operation, nor is there any real significant international element, therefore no obvious aggravating factors.  The period of time is considered and the number of transactions are relevant.

23.  I have also considered the money involved in the money-laundering charges derived from bookmaking activity and therefore the offences go hand in hand.

24.  I have considered the authorities submitted where the facts are similar or helpful to arrive at an appropriate starting point, in particular, HKSAR v Cheung Kam Sin, CACC 380/2010, as well as Secretary for Justice v Wan Kwok Keung [2012] 1 HKLRD 201.

25.  To arrive at an appropriate starting point I have considered all the factors I have referred to above, mitigation put forward and the facts of the case, the amount of money involved, the defendant’s clear record and his background.

26.  Defendant, please stand up.  A substantial bookmaking operation will attract a sentence of between 2 to 3 years.  Here, I take a starting point of 2 years for Charge 1.

27.  For the offences of money-laundering, I take a global approach and find an overall starting point of 3 years’ imprisonment appropriate for these offences.

28.  The defendant is entitled to a discount of one-third for his plea.  As a result, the defendant is sentenced to 1 year and 4 months for Charge 1.

29.  For Charges 2, 3, 5, 6 and 7, for each charge the defendant is sentenced to 2 years’ imprisonment.

30.  In considering the totality principle, I will order that Charges 2, 3, 5, 6 and 7 will be served concurrently.  However, 2 months of the sentence of Charge 1 will run consecutively to the sentences of Charges 2, 3, 5, 6 and 7.

31.  The resulting overall sentence is one of 2 years and 2 months’ imprisonment.