Attorney General v. Ho Sik-yan and Others

CAAR000016/1981

Gambling Ordinance Cap. 148 - gambling contra section 6 - current scale of fines too low - Change in legislation indicative of intention of Legislature to eliminate or at least reduce incidence of illegal gambling - Imprisonment for section 6 offence only to be considered where peculiarly aggravating circumstances appear - Suspended sentence only appropriate in cases where imprisonment is indicated as a reasonable option

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 17 December 1981, 8 January 1982

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J U D G M E N T

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McMullin, V.-P. :

1. A police raid on premises at the fifth floor of 47, Johnston Road on 9th of September 1981 disclosed a number of persons engaged in gambling at the game known as Pai Kau. There were 14 persons in all. SIN Chu-kan, the 1st defendant, was charged with operating a gambling establishment contrary to section 5(a) of the Gambling Ordinance, Cap. 148. He pleaded guilty and received a fine of $5,000. We are not concerned with him in the present proceedings.

2. The remaining 13 persons were charged with gambling contrary to the provisions of section 6 of the Ordinance and all pleaded guilty. They each received a fine of $300. Three of those 13 have not been further pursued and the Attorney General seeks review of sentence in respect of 10 only of those arrested by the police. The application is on the basis that those fines were manifestly inadequate and wrong in principle.

3. In passing sentence the learned magistrate said that:

"The norm for the offence of gambling as distinct from the offence of operating a gambling establishment is in the range of $200-300 unless special factors such as the size of the operation evidenced by the quantum of money waged and the commission earned indicates that a higher fine should be imposed."

Mr. Lucas for the Crown does not contend that this was other than a small operation. The sum of money found on the gambling table was only $6560 and a search of the gamblers produced only an additional $1510. Mr. Lucas further agrees that the magistrate has correctly stated the norm imposed by the courts in such cases over the last few years. He supplied the court with an elaborate analysis of fines imposed in all the magistracies from August 1979 to August 1981. A calculation involving the total number of persons fined and the actual fines imposed shows that the average fine in the five months covered in 1979 was $266; in 1980 it had risen to $321 and in the eight months of 1981 it had risen to $394.

4. Another chart produced by counsel displays the histories of the 10 respondents in relation to offences under the Ordinance. They range from the case of WONG Wai-hong, the 10th respondent, who has one previous conviction for gambling in June 1981 to that of LO Yee, the 4th respondent whose record extends back to April 1976 showing 11 offences under the Ordinance, 9 of which were under section 6, the remaining 2 being of an altogether more serious nature viz. keeping a common gaming house for which he was fined $750 on the 27th of April, 1976 and assisting in the management of a gambling establishment in 1979 when he was fined $8,000. We note also that of the 10 respondents 5 have previous convictions either for assisting or managing a gambling establishment.

5. It is unnecessary to refer to any further figures from these helpful documents. The point is plain enough. We note that neither the analysis of previous fines nor the chart in respect of previous convictions were before the trial judge although the actual record sheets relating to the various defendants were before him. Firstly, counsel says that notwithstanding that enormously enhanced penalties for prohibited gambling activities were introduced with the replacement in 1977 of the former Ordinance by the present Gambling Ordinance, it is apparent that the courts have continued to apply a "tariff" in respect of these offences which has not reflected the increased concern of the Legislature to a degree commensurate with the clear intent of the new legislation.

6. Secondly, he says that it is wrong in any case to apply this norm - itself already inadequate - as though it were in the nature of a fixed penalty in respect of which the court had neither the duty nor the right to distinguish between different cases on the basis of previous record.

7. As to the first of these points, there can be no doubt that the 1977 legislation marks a significant alteration in the whole approach of the Legislature to gambling. Formerly it was unlawful to keep or use any premises as a common gaming house or to resort to such premises for the purpose of engaging in any game of chance or of mixed chance and skill. The definition of common gaming house was so wide as to make virtually any form of gambling unlawful. By contrast section 3 of the new law makes gambling unlawful save as otherwise provided by subsections 2 to 8 of that section. These subsections permit the carrying on of a wide variety of gaming activities and the whole slant of the section is to prohibit the promotion or carrying on of such activities by any person as a trade or business otherwise than as permitted under the Ordinance.

8. Thus the ambit of prohibited activities is greatly narrowed but the penalties for what remains forbidden are enormously increased. Under the former Ordinance the maximum penalties provided for keeping a common gaming house were $5,000 by way of fine and 9 months' imprisonment. For playing in a common gaming house the worst a gambler could expect if apprehended was a fine of a mere $250.

9. The corresponding penalties under the new legislation are $500,000 by way of fine, and imprisonment for seven years if the case is taken on indictment or two years on summary conviction; while under section 6 of the new Ordinance the unlawful gambler may be fined as much as $10,000 and may receive a prison sentence of 3 months. Thus, as Mr. Lucas points out, the law no longer seeks to forbid gambling but takes a more realistic approach, in the face of an ineradicable quirk of human nature, by seeking in effect to eliminate only unlicensed and illegal gaming casinos of every scale of magnitude from the multi-million dollar triad-linked syndicate to the modest domestic enterprise with which it would seem we are concerned in this case. Mere smallness of scale, however, is not, in counsel's view, any justification for what one might call the fixed penalty approach. In such a matter, he says, the intention of the Legislature is of paramount importance and that intention is clear viz. to contain, and if possible to eliminate, this particular form of illegal business.

10. On this view of the matter, he suggests, the occasional exemplary sentence visited upon a major operator will have a less salutary effect by way of impressing the public at large than would a policy of steadily increased sentences in the case of the much more numerous small operators when they choose to persist in their activity undeterred by the imposition of an initial warning in the form of a comparatively lenient sentence. Indeed, counsel says, imprisonment is a legitimate option, even in the case of the mere gambler, for a magistrate who finds before him a person who has not been deterred by several progressively heavier fines. Since he maintains that the going rate in the magistrates courts is in any event much too low even for first offenders, the argument might be seen to imply that a small suspended sentence of imprisonment might be the only realistic course open to a magistrate who found himself in the dilemma proposed by the case of a first offender whose means were clearly inadequate to enable him to meet the proper fine. Counsel did not put his case so high since he very properly did not dispute that the court in imposing a fine must have due regard to the offender's ability to pay it. He contended only that the sentences in the present case indicate what is the going rate in the magistrates courts and that such a practice clearly did not have the deterrent effect which he maintained was the principal purpose of the change in the legislation. He made it clear that he was primarily seeking guidelines from this court on the proper practice and was not seeking to make examples of these particular respondents.

11. Mr. Sedgwick who appeared only for the 1st, 3rd and 5th respondents, by contrast emphasized that he was concerned only to urge the merits of his particular clients. His main complaint was that there had been no inquiry as to the means of these three men. He gave us a brief account of their circumstances relying upon matter affirmed by them in affidavits and said that the fines of $300 so far from being inadequate were in fact excessive. We did not ask to see these affidavits. We were prepared to accept the account thus given of these respondents. Mr. Sedgwick asked us to reduce the fines in the cases of the 3rd and 5th respondents and as to the 1st respondent whose financial circumstances appear to be the most straitened of the three (he is 65 years of age and in receipt of a government pension of $200 per month and is dependent for support on a son and daughter) counsel suggested that a conditional discharge would be appropriate. Finally, he stressed the small scale of this illegal operation and asked us to say that Mr. Lucas was proposing a sentencing policy which was wholly wrong in principle.

12. In relation to Mr. Lucas' second point (the apparent disregard of previous records), Mr. Sedgwick referred us to a passage in Thomas, at pages 197-8, in support of the contention that, in cases such as this, previous record was something to be consulted primarily for such mitigating factors as it might disclose. We do not think the author can have intended to state any such principle but even if the passage can be so construed, we are satisfied that such a construction is wholly unsupported by the practice of the courts. Previous criminal record, in these cases as in all cases, is clearly a matter to be taken into consideration and the clear principle is that while a defendant must not be sentenced for his prior offences such offences are properly taken into consideration - with all other factors both adverse and favourable - in selecting the appropriate sentence for the case before the court.

13. We cannot find any substance in defence counsel's purely ad hominem plea. It is noteworthy that the 1st respondent, notwithstanding that he is represented to us as wholly relying on his relatives for subsistence, with what amounts to monthly pocket money from the state, was nevertheless able to pay all the fines imposed in the five instances in which he was convicted of gambling prior to this present offence and which include a fine of $500 in May 1979. We are not concerned to inquire how he or any of these respondents secured the necessary funds to pay their fines. The fact remains, as Mr. Lucas says, that these fines have clearly not had any appreciable deterrent effect. This is adequately demonstrated by the records of virtually all of the present respondents, 8 of whom have appeared on gambling charges before the court on 2 or 3 occasions in the month of June 1981 and most of whom have previous such convictions going back to much earlier dates, the greater number being since the law changed in 1977.

14. We do not propose to give guidelines in the form in which they have been given by this court recently in relation to offences of robbery and offences against the Dangerous Drugs Ordinance. These gaming offences do not lend themselves quite so readily to any such approach in view of the very great variety of individual factors, both as to scale and nature of the operation, and the character of the habituees and supporters, which may appear in different cases.

15. We accept that the intention of the Legislature is a consideration of prime importance in setting what might be termed the basic scale of penalties for gambling offences. Mr. Lucas relying on what was said in Review Application 6 of 1978 (1978 H.K.L.R. 184) was inclined, we think, to urge that it should be the only consideration. In that case a District Judge had imposed suspended sentences of imprisonment in respect of offences under the Protection of Women & Juveniles Ordinance on the basis that "there is a growing feeling in the community that the state should interfere less in these matters." Acceding to the application for review, Huggins, J.A., said (p.185) :

"Whether such a feeling is in fact growing in Hong Kong it is difficult to say: the issue is one on which opinions notoriously differ and on which many persons are disposed to express one view in public and another in private. What is more important is that it is not the duty of the courts to assess the feelings of the community where the intention of the Legislature is clear."

16. We would not seek to question the validity of that as a general observation provided it is not used to preclude a magistrate or judge from having regard to other factors in the individual case. This latter observation is especially needful in the circumstances of Hong Kong where, whatever the admirable practical advantages of its polity may be, the sentiments of the community at large on any issue, moral or otherwise, are perhaps less likely to be reflected in its legislation than is the case of states which legislate on a foundation of full plebiscitary democracy.

17. It is also to be noted that Huggins, J.A., himself very shortly after the words just now quoted went on to say :-

"An increase in the maximum penalty may not invariably indicate an intention that the general level of sentences should be increased ........".

We are nevertheless satisfied that the intention of the Legislature in relation to gaming offences is clear. There remain abundant facilities for lawful gambling within the framework of the law in Hong Kong; the new legislation does seek to discourage and, if possible, to eliminate unlawful gambling businesses. The inadequacy of the current fining policy to forward that purpose is evident not only from the histories of the present respondents but also from the statistics supplied to us which tend to show no decrease in the actual number of persons convicted under section 6 over the 3 years covered by the analysis which was marked as Document B. Thus in 1980 a total of 6289 persons were convicted and fined, while in the 8 months of 1981 covered by the analysis the number is 5238. In the 5 months covered for 1979 the figure is 2672.

18. We conclude therefore :

(a) That a good case has been made out for increasing the basic tariff rate for first offenders under section 6.

(b) That that rate should be in the region of six to seven hundred dollars.

(c) That previous convictions should be taken into account in considering whether the basic rate should be exceeded.

(d) That these guidelines are not intended to fetter the discretion of a magistrate to deal more leniently with any given case whether by way of smaller fine or by the use of any of the more merciful expedients available in the law whenever the circumstances appear to him to justify such a course.

(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.

19. As to this last point, there is an attractive logic in Mr. Lucas' suggestion that suspended sentences are peculiarly apt as a method of honouring the intention of the Legislature where it is plain that a heavy fine is called for and the defendants' means are clearly inadequate to discharge it. We must, however, maintain the court's attitude in regarding a suspended sentence as a sentence of imprisonment notwithstanding that there is some reason to believe that popular opinion may tend to regard it as something in the nature of an absolute discharge. It may be that the effect for which Mr. Lucas argues might in a suitable case be served by a conditional discharge under section 30(1)(h) of the Magistrates Ordinance.

20. While the Attorney General succeeds in this application for review, we did not envisage making any alteration in the sentences imposed upon the present respondents and they were so informed at the conclusion of the hearing.

Representation:

Max Lucas, Q.C., and C.G. Jackson for Appellant/Crown

A.J.J. Sedgwick and Miss Kaplan (D.L.A.) assigned for 1st, 3rd and 5th Respondents

2nd, 4th, 6th, 7th, 8th, 9th and 10th Respondents in person