HKSAR v. Chu Hoi Kan

DCCC 623/2021

[2024] HKDC 1417

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 623 OF 2021

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REASONS FOR SENTENCE

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1.The Defendant was convicted after trial for an offence of bookmaking contrary to section 7(a)  of the Gambling Ordinance, Cap 148.

2.According to the evidence adduced by the Prosecution that PW1 was a successful business man, he took 1.5 million from the company as his monthly salary. He was also a heavy gambler. He has a trusted assistance that was PW2.

3.The D and PW1 became acquaintances when they met in a sauna premises.

(a)  The D solicited from the PW1 to place horse racing bets with him.

(b)  The D negotiated the terms of the bets with PW1 that:-

(i)  When PW1 won the bet, the odd would be the same as the Jockey Club.

(ii)  When PW1 lost, there would be a 13% discount of the total amount of the bet. That means PW1 only needed to pay $870 for a $1,000 bet.

(c)  The D received bets from PW1.

(d)  The D settled the gambling debts with PW1. When it was a winning, the D paid in cash. PW1 through his assistance PW2 to settle the gambling debts by way of cash or in cheques according to the instructions of the D.

4.The ICAC team raided the premises and found the D inside the master bedroom with Madam Lau. The laptop computer and notebook were found inside a wardrobe. The predominant DNA of the notebook was from Madam Lau. While the D’s DNA was found on the keyboard of the computer. In the living room, there were Cheng, Poon and an elderly lady. The television was board-casting live horse racing events.

5.Under caution, the D said that:

“I understand the reasons for the arrest and the meaning of the caution. Ng Wai Man [PW1], Wan Yat Kwai and I are only ordinary friends. Usually, we would have meals and play mahjong games. For mahjong, I would only play with Wan Yat Kwai. The two of them (would)  ask me to place bets on horse races. So, I placed bets for them on horse races either at the Jockey Club or on the internet. I only earned one point out of that. I did not accept their bets and dared not accept them. I only earned a meal.”

6.PW3 produced an expert report and in his evidence he said that there was nothing to support the D’s saying that he took 1% as the commission.

7.There is no evidence to show where did the D place the bets. I ruled that the D was the taker/bookmaker himself as he took the bets from PW1 each time when PW1 called him. He was responsible for payment of the winnings and to collect the gambling debts from PW2.

Criminal record

8.From 1960 to 2001, the D has 22 counts of convictions for 22 court appearances.

(a)  One count of larceny in 1965;

(b)  20 convictions for offences of gambling in the gambling establishment from 1975 to 1994; and

(c)  One conviction of engaging in bookmaking in 2001.

Background and mitigation for the defendant

9.The D is now 73 years old. He is married for 40 years with 2 grown up daughters who have completed their university education in Australia. They are now working and living in Hong Kong with their parents.

10.I have various letters before me to tell me that:-

(a)  The D had a gallbladder removal operation in 2014, a major eyes operation in 2022 and he is required for another eyes operation for his macular membrane degeneration. He also suffers from hypertension. While his wife is a diabetic patient with heart disease and hypertension problem, her next medical appointment will be in 2 months’ time.

(b)  His nephew said that the D has been financially supportive to his family, he is very grateful for his kindness and generosity.

(c)  His daughter’s letter shed light into his marriage life that his wife would sometime give him severe scoldings and he ended up shedding tears in the night. Nonetheless, it never stops him to provide unfailing support to his family.

(d)  Now, in his old age, the D wishes to spend his time with his family.

(e)  He participated in charity works for the elderly organization.

11.In mitigation, I am further told that he previously worked as a salesperson in a hardware shop and made $20,000 per month. He retired some 13 years ago.

Sentence

12.The maximum sentence for this offence is 7 years.

13.The Defence refers me to the case of HKSAR v Leung Chi Fai CACC 490/2011 that the appellant had seven agents worked under him and the total amount was about HK$4.4 million and RMB$1.3 million, covering a period of about 3 months. In view of the size of the operation, the appellant was sentenced to 3 years’ imprisonment for the charge of bookmaking.

14.In our present case, PW1 said that he lost 27 million during the period from September 2018 to May 2019, some 9 months of placing bets with the D.

15.There is no doubt that it is a well-planned operation which involved substantial sum of stake money in each bet from PW1. The expert cannot see where the bets were placed. Huge sums of cash had been taken placed between the D and PW2 who was responsible to handle the gambling debts of PW1. The purpose was to avoid any tracing of the illegal gambling funds as evidence against the D. His bank account was not part of the prosecution case. As I have said in the verdict that it was a calculated move to conceal the illegal activities and to eliminate any traces of evidence against the D.

16.Apart from cash, there were cheques to others to settle the gambling debts. They were also in huge sum. The sum varied from $200,000 to 5 million.

17.As said in the judgment of R v Yip Kam Fai and Anor CACC 108/1993 that “The operators of a substantial bookmaking operation can expect to receive a sentence of between 2 and 3 years’ imprisonment after trial”.

18.To this end, having considered all the mitigating factors before me, I considered that the appropriate starting point is 3 years.

19.I disagree with the Defence that I should treat him as a man with clear record, as he had 20 convictions of gambling in a gambling establishment and one conviction of engaging in bookmaking in 2001. I accept that the D has managed to stay away from committing any further crimes for the last 23 years on the record.

20.The present offence was committed in 2018-2019. Effectively, it was some 17 years ago. Nonetheless, I deduct 2 months for his credit for going straight.

21.He was arrested in November 2019 and no doubt this matter has been hanging over his head for some time as he has never been subjected to any term of imprisonment. He also worried about the circumstances of the outcome of the recovery of proceeds proceeding as it may have an impact on the living arrangement of his family. As such, I allow 2 months’ deduction for his mental anxiety.

22.Further deduction of 1 month’s sentence for the conduct of the Defence in efficiently defending the case by way of admitting facts, trial days was reduced by half.

23.A total of 5 months’ deduction. The D is ordered to serve a period of 2 years 7 months’ imprisonment.