COURT: You have pleaded guilty to one count of managing a gambling establishment, contrary to Section 5(b) of the Gambling Ordinance, Cap 148 (1st charge); and one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (2nd charge).
The 1st charge alleges that you, on 17 December 2003, at 1st Floor, Hoi Lin Building, No. 23 Wai Yan Street, Tai Po, New Territories, you managed a gambling establishment. The 2nd charge alleges that on the same date at the same premises, you, together with a person known as Ah Yau, unlawfully trafficked in dangerous drugs, namely 13.3 grammes of a solid containing 10.2 grammes of cocaine and 21.4 grammes of a crystalline solid containing 21 grammes of methamphetamine hydrochloride (“Ice”).
The Facts
The charges arise from these facts.
At about 7.15 pm on 17 December 2003, police officers raided the 1st Floor of Hoi Lin Mansion, No. 23 Wai Yan Street, Tai Po (“the Premises”), which were about 500 square feet in size. Upon pushing the main wooden door, another door with soundproof foam panels was found. There were two partition rooms (“Room A and Room B”), a toilet and a kitchen. In room A, three males, a female and a child were seated. In room B, the walls were covered with soundproof foam panels. Two large fish-hitting machines were placed in the middle, while two plane-shooting machines, one fish-hitting machine and one bird-shooting machine were placed along the walls.
The defendant was sitting at a study desk in Room B, while three males and three females were around the two large fish-hitting machines.
Upon preliminary enquiry, the defendant claimed to be the person-in-charge of the Premises. Cash of HK$8.20 was found on his person. Upon search of room B, the following items were found and seized:
(a) on the study desk: an IC card reader, a notebook containing handwritten words and figures under different dates, and two ball pens;
(b) in the drawers: cash of 3,960 and RMB$400, a game control card, 22 VIP game cards and 19 keys;
(c) under the study desk, a blue plastic box containing a black leather bag with 44 plastic bags containing 13.3 grammes of a solid containing 10.2 grammes of cocaine and 42 plastic bags containing 21.4 grammes of a crystalline solid containing 21 grammes of ‘Ice’; and
(d) on the wall: a CCTV system and a television monitor.
Under arrest and caution, the defendant stated that a person named Ah Yau told him the daily wage was HK$700. Ah Yau asked him to collect money from customers and give them game point cards for playing and gambling at the fish-hitting machines. The drugs were also given by Ah Yau to him for sale.
In three video-recorded interviews the defendant stated, amongst other things, that:
(a) he first met Ah Yau in a park on 16 December 2003. Ah Yau asked him to work at the Premises at HK$700 per day, responsible for exchanging cash with game points at a rate of $100 to 10,000 points for customers to gamble at the machines, and exchanging game points back to cash at the same rate;
(b) on 17 December 2003, Ah Yau asked him to bring a bag of ‘Ice’ and a bag of cocaine to the Premises and sell them to customers if needed at HK$800 for larger bags of ‘Ice’ and HK$600 for smaller bags of ‘Ice’ and all bags of cocaine;
(c) it was his first day of work; he arrived at about 6.45 pm, placed the drugs under his study desk and had not yet sold any drugs when he was arrested about 30 minutes later;
(d) the cash of $3,760 and RMB$400 in the drawer belonged to “the company”; The previous shift staff passed him HK$3,000, and the remaining sums were received from customers; and
(e) the cash of HK$8.20 found on this person belonged to him.
The estimated street value of cocaine was HK$12,156, and that of the ‘Ice’ was HK$13,696.
A gambling expert opined that the machines found in Room B were consistent with fish-hitting, plane-shooting and bird-shooting machines, which involved a game of chance and skill combined and constitute a form of “game” for the purposes of the Gambling Ordinance. Having regard to the CCTV system, the soundproofing facilities, the six gaming machines, the VIP game cards and the IC card reader, the expert opined that the Premises were consistent with an unlawful gambling establishment.
The defendant admits and accepts that at the material time, he managed a gambling establishment and unlawfully trafficked in 10.2 grammes of cocaine and 21 grammes of ‘Ice’.
Background and Mitigation
The defendant is 50 years old. He is a Hong Kong resident educated to Form 4. He worked as a delivery worker from 2015 to 2020 and was unemployed thereafter. He is single. His parents are aged 79 and 66, both retired. He has a younger brother aged 47.
The defendant has seven previous convictions, of relevance are:
(a) a conviction for possession of a dangerous drug in 2002, for which he was fined HK$1,000; and
(b) a conviction for theft in 2021, for which he was sentenced to 2 months’ imprisonment, suspended for 3 years and fined HK$200.
The present offences were committed on 17 December 2023, during the operative period of the suspended sentence.
In mitigation, counsel for the defendant submitted that:
(a) for the 1st charge, the scale and duration of the operation were relatively modest and the defendant managed the Premises for one day only;
(b) for the 2nd charge, the defendant was at the lowest level of culpability, acting as a storekeeper or courier under instruction;
(c) the defendant entered a timely plea;
(d) his only drug-related conviction was over 23 years ago;
(e) the court is invited not to activate the suspended sentence given the different nature of the offences; and
(f) the sentences should run concurrently or substantially concurrently.
Sentencing Considerations
Charge 1, Managing a Gambling Establishment
The maximum sentence on conviction upon indictment for managing a gambling establishment is a fine of 5 million and imprisonment for 7 years. There is no established sentencing tariff for this offence. The Court of Appeal in AG v Li Wai Ming and Another CAAR 9/1984, suggested that in all but minor cases under sections 5 and 7 of the Gambling Ordinance, the court should seriously consider whether an immediate custodial sentence is not appropriate, possibly in addition to a fine.
Counsel submitted that operating a gambling establishment is more serious than managing one. I do not accept this submission. As observed in HKSAR v Satbir Singh [2022]
HKCFI 919 at paragraph 71 in the circumstances of that case managing a gambling establishment was considered to have no material difference from operating one.
The distinction depends on the facts. Here, the defendant was the sole person-in-charge; He claimed that role upon arrest. He was responsible for exchanging cash with game points, managing the gaming machines, and was entrusted with cash and drugs. On these facts, his culpability is not materially less than that of an operator.
The sentencing spectrum for operating a gambling establishment was reviewed by Fung J in HKSAR v Chiu Hoi Po, HCMA 457/2012 at paragraph 65: the normal range is from a few weeks on a one-off occasion to 3 months for operations over a long period. In HKSAR v Yam Oi Lam [2013] 4 HKLRD 320, the starting point of 9 weeks was adopted for a purpose-built establishment with three automatic mahjong tables and eight gamblers, reduced to 6 weeks after one-third plea discount and further reduced to 5 weeks for minimal antecedents.
In the present case, I accept that this was the defendant’s first and only day managing the Premises. There were six gaming machines, a CCTV system and soundproofing facilities, and 12 persons were present. However, the defendant’s actual operation lasted no more than about 30 minutes before police arrived. Taking these factors into account, I adopt a starting point of 1½ months’ imprisonment for the 1st charge.
The defendant pleaded guilty at the earliest opportunity, for which he is entitled to the full one-third discount. After the discount, the sentence for the 1st charge is 1 month’s imprisonment.
Charge 2, Trafficking in Dangerous Drugs
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in HKSAR v Lee Ming Ho, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph.
The 2nd charge involves two types of dangerous drugs, 10.2 grammes of cocaine and 21 grammes of ‘Ice’. I apply the combined approach as set out in HKSAR v Islam Majharul and HKSAR v Chan Yuk Leong.
First step: identifying the relevant guideline band. The relevant guidelines are set out in HKSAR v Huang Ruifang which superseded all earlier guidelines. ‘Ice’ constitutes the substantial majority of the drugs seized, being 67.3% of the total weight, and carries a higher sentencing tariff gram-for-gram. I identify ‘Ice’ as the base drug.
For 21 grammes of ‘Ice’, the relevant band is band (ii): 10 to 70 grammes attracting 7 to 11 years’ imprisonment. By linear interpolation, the notional starting point is 7 years and 8 months, namely 92 months’ imprisonment.
For 10.2 grammes of cocaine, the relevant band is band (ii): 10 to 50 grammes attracting 5 to 8 years’ imprisonment. By linear interpolation, the notional starting point for cocaine alone is 5 years, 60 months.
I have applied the three cross-check tests, taking the total combined weight of 31.2 grammes:
(a) Absurdity test - if the entire 31.2 grammes were treated as ‘Ice’, the starting point would be 8 years and 4 months; if treated as cocaine, 6 years and 7 months;
(b) Conversion test - converting the cocaine to its ‘Ice’ equivalent produces 26 grammes of ‘Ice’ attracting 8 years; converting the ‘Ice’ to its cocaine equivalent produces approximately 55.8 grammes of cocaine attracting 8 years and 1 month.
(c) Ratio test - weighing the absurdity test results by the proportion of each drug produces 7 years and 9 months.
The base drug starting point is 92 months. The three cross-check tests produce results ranging from 93 to 100 months, confirming the base drug approach is appropriate but requires an upward adjustment. I adopted an upward adjustment of 4 months. The adjusted notional starting point is 8 years, namely 96 months.
Second step: the defendant’s role and culpability. I accept that on the facts the defendant was acting as a storekeeper entrusted with drugs for sale at the Premises. It was his first day of work. He had not yet sold any drugs when he was arrested. He had no authority to set the price and was acting under Ah Yau’s instructions.
As held in Herry Jane Yusuph, the guidelines are devised for those at the bottom of the trafficking hierarchy. There is no enhancement on account of the defendant’s role.
Third step: placement within the guideline band. Considering the overall role and culpability, I find that the adjusted notional starting point of 96 months remains appropriate.
Fourth step: aggravating factors. The offence involves two types of dangerous drugs, cocaine and ‘Ice’, enabling the defendant to cater to the wider market: Chan Yuk Leong. I enhance the sentence by 2 months, resulting in a revised starting point of 98 months.
As to the defendant’s previous conviction for possession of a dangerous drug in 2002, it predated the present offence by over 21 years and involved mere possession. Given the substantial passage of time, I do not enhance the sentence on this account.
Fifth step: mitigating factors. The defendant pleaded guilty at the earliest opportunity for which he is entitled to a full one-third discount. After the discount, the sentence for the 2nd charge is 65 months’ imprisonment.
As for the personal and family circumstances of the defendant, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug trafficking cases. I do not make any further reduction on this account.
Sixth step: totality and overall fairness. Counsel invited this court to order the sentences on both charges to run concurrently or substantially concurrently on the basis that both charges occurred at the same time and in the same premises. I do not accept this submission. The 1st charge (managing a gambling establishment) and the 2nd charge (trafficking in dangerous drugs) are distinct offences, different in nature and protecting different public interests. The fact that they arose from the same premises does not alter the separate and independent criminality involved. I order the sentences to run consecutively.
As to the suspended sentence of 2 months’ imprisonment imposed on 13 July 2021 for theft, the defendant committed the present offences on 17 December 2023 during the operative period of the suspension. Notwithstanding the different nature of the offences, the defendant has demonstrated by the commission of these serious offences that the leniency previously shown to him was not warranted. I will therefore activate the suspended sentence. Given the present offences were committed about 2½ years from the commencement of the operation, I order 1 month of the 2 months’ imprisonment to be served consecutively to the final sentences.
The total sentence for Charge 1 and 2 before any adjustment is therefore respectively 1 month and 65 months’ imprisonment, amounting to 66 months’ imprisonment. Standing back and considering the totality of the sentence, I am satisfied that the sentence is fair, just and balanced to the offences as well as to the defendant.
Your sentence is as follows: for the 1st charge, 1 month’s imprisonment; 2nd charge, 65 months’ imprisonment.
The sentence on the 1st charge and the 2nd charge are to run consecutively. Namely 66 months’ imprisonment. Having activated 1 month of the suspended sentence, and to run consecutively with Charge 1 and 2, the total sentence is 67 months’ imprisonment, namely 5 years and 7 months’ imprisonment.
