HKSAR v. TSANG LING YIM AND OTHERS

HCMA1102/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.1102 OF 1999

(ON APPEAL FROM SKC 2810 OF 1999)

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J U D G M E N T

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1. The 1st, 2nd and 3rd appellants were charged with operating a gambling establishment and the 4th and 5th appellants were charged with assisting in the operation of a gambling establishment, contrary to ss.5(a) and 5(c) respectively of the Gambling Ordinance, Cap.148. They pleaded guilty to the respective charges and were convicted by the learned magistrate. For the 1st, 2nd and 3rd appellants, they were sentenced to a term of four months and the other two appellants were sentenced to a term of three months. The 2nd appellant sought to appeal against the conviction and sentence while the other appellants sought to appeal against the sentences.

2. Counsel for the 1st appellant relied on two matters in the appeal. The first point was that because the 1st appellant had already withdrawn from the gambling establishment before his arrest, the learned magistrate could have exercised his discretion and suspended the term. The second point was that the 1st appellant should not have received the same sentence as the 3rd appellant. The 1st appellant had only one previous conviction, whereas the 3rd appellant had one similar conviction and some other previous convictions.

3. I was not persuaded that the second point had any merits. The focus of the sentence must be on the gravity of the offence itself. Of course, the sentencing magistrate should not ignore relevant factors such as previous convictions. But in dealing with cases involving several defendants, the magistrate could not be expected to follow a strict formula based on an exact comparison of the relevant factors. However, even if a comparison of previous conviction was appropriate here, I hardly think that a similar conviction in 1986 should put the 3rd appellant in a different category.

4. However, on the issue of voluntary withdrawal, I was persuaded that in principle, some discount could have been given for this reason. In the mitigation made on behalf of the 1st appellant, counsel stated that the appellant became involved in the operation in July 1998. He then left the establishment in January 1999 because of some argument with the other persons, and indeed the charge against the 1st appellant stated the time frame of the offence to be from July 1998 to January 1999.

5. The learned magistrate took a starting point of six months in relation to the operating charge. In his Reasons for Sentence, he had stated very clearly why he thought six months was appropriate. He wrote :

" The facts of this case are serious. Here the facts admitted disclosed a large scale operation as well as a well organized and set up operation. The monies involved were not small, and as well the period of operation was not for a short time ranging from 6 months for Appellant 1 and 9 months for Appellant 2 down to 2 months for Appellant 4 (as per the charges pleaded to). This sort of activity adds to the proliferation of this type of offence in Hong Kong. It would be remiss of me not to impose a custodial sentence in such circumstances."

...

" The authorities suggest that for a large scale operation as this a period of imprisonment is called for and the reason inter alia is to constitute an effective deterrent. LI Wai-ming [1984] HKLR 324 R. v. TSOI Tak-shing M.A. 364/1994. The court realizes that large profits are being made by those engaged in running illegal gambling activities.

6. For the 1st appellant, the learned magistrate gave a two month discount for the plea. However, he made no particular reference to whether he would consider this "voluntary withdrawal" from the establishment to be a mitigation or whether the starting point had already taken that into account. In the circumstances, I was persuaded that some discount could be given and I considered one month to be appropriate.

7. The 2nd appellant's (Kwok Tak Choi) case was put on a different ground. Although he had pleaded guilty, now counsel argued that the conviction could not stand because what was said in mitigation had rendered the plea ambiguous, particularly on the element of 'operating'.

8. The facts admitted by the 2nd appellant was that he contributed financially to the setting up of the den and drew commissions. However, in the mitigation, Mr Yeong for the 2nd appellant, said to the court that :

"In fact, the (2nd appellant) only contributed financially to the setting up of the den by lending money to his friends when requested without charging any interest in order to help his friends when his friends need money to continue their gambling. ...

... I would like to say, your Worship, this is more like a social activity rather than to actually participate to the offence. And indeed, the (2nd appellant) was only a gambler at that time. I mean, he went there to gamble and, when requested by his friends, lent money to his friends. And he'd never taken any active role in the den, and had no idea about the operation of the den, ..."

9. First of all, if what counsel said were true that the 2nd appellant was only a gambler there, I wonder why he would advise his client to plead guilty and admit the facts as they stood. However, having considered the authorities referred to and despite the respondent's submission to the contrary, what was said in the mitigation, in my view, did render the plea equivocal and it should be treated as a nullity. (See Ingleson [1915] 1 KB 512, Baker (1912) 7 Cr. App. R.217 and Field (1944) 29 Cr. App. R.151.

10. The 3rd appellant (Kwok Tak choi) was unrepresented at the appeal hearing. He was the appellant who admitted to have rented the premises and drew commissions.

11. He submitted that at first he had rented the place as a residence. Then his friends started to gather to gamble and later commissions were drawn for water and electricity bills. He said he never drew any large profit from the establishment. He left the establishment of his own accord as he had found a job so he moved into his own quarters. He said that when the ICAC came to make investigation, he rendered full cooperation and disclosed all he knew. I agree with the learned magistrate that he should be considered in the same way as the other operators. I took the view that a similar discount could be given to him for his voluntary withdrawal.

12. Regarding the other two appellants (Chan Wai Hung and Leung Man), they were convicted of the offence of having assisted in the gambling establishment. The admitted facts disclosed that D5 (the 4th appellant) was employed as an assistant keeper of the den and was paid $200 on each occasion. D6 (the 5th appellant) worked as a cashier at a daily wage of $300.

13. The learned magistrate had this to say about these two appellants :

"... With respect to Appellants 4 and 5 I at all times bore in mind that they are convicted of 'assisting' the operation only for the periods from April 1999 to May 1999 for Appellant 4 and July 1999 for Appellant 5, but that does not make the matter any less serious, so in all the circumstances I took a starting point of 41/2 months and reduced it to 3 months to reflect again the plea of guilty and mitigation put."

14. These two appellants had played a different role than the actual operators. They were in effect employees and they had no share of the profits. While I fully agreed with the learned magistrate's view that a suspension of the term should not be considered for the operators, in principle, the assistants could be dealt with differently.

15. In the circumstances, I had allowed the appeal in the following manner :

1. 1st appellant : sentence of four months reduced to three months.

2. 2nd appellant : leave to appeal against conviction granted, appeal allowed, conviction and sentence set aside. The case is remitted back to the Magistracy for plea and to be tried before another magistrate. It would be desirable for this appellant to be tried together with the other defendant who had pleaded not guilty.

3. 3rd appellant : sentence of four months reduced to three months.

4. 4th appellant : the three months' imprisonment is substituted with three months' imprisonment suspended for 15 months.

5. 5th appellant : same order as the 4th appellant.

16. Nature, effect and consequence of breach of the suspended term explained to both the 4th and 5th appellants.

17. Bail granted to the 2nd appellant pending trial. Conditions of bail as recorded in the bail form.