HKSAR v. Chan Wing Hong

HCMA001252/2002

HCMA 1252/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1252 OF 2002

(ON APPEAL FROM NKCC 4991/2002)

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Coram: Deputy High Court Judge Line in Court

Date of Hearing: 28 January 2003

Date of Judgment: 28 January 2003

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J U D G M E N T

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1.This is an appeal against sentence. The appellant in this case was convicted of engaging in bookmaking. He pleaded guilty after the admission of a record of interview. The charge to which he pleaded guilty particularises the dates of the bookmaking as being from 29 December 2001 to 3 January 2002. The amount involved was $622,000. He had actually passed on bets for other people, and those bets amounted to the further sum of $710,000. The total he dealt with, and I use that phrase neutrally, was $1.3 million. On the basis of the recent case in the Court of Final Appeal, he was not to be dealt with on the basis that he had engaged in bookmaking in respect of those bets he passed on to another bookmaker, the Court of Final Appeal case being HKSAR v Chiu Kam Yiu FACC No. 3/2002. The bets were all in relation to soccer matches.

2.The first ground of appeal argued by Mr So complains that the magistrate, who sentenced the appellant to 4 months' imprisonment, did not distinguish sufficiently in his statement of findings between the bets accepted personally by the appellant and those matters for which he was a conduit, and that he used the word "laid-off", the point being that you only lay-off, in technical terms, that which you have accepted as your own bet.

3.Miss Ching, for the respondent today, points to several passages in the transcript that we have where counsel, who appeared for the appellant below, made clear the basis of the plea being on the smaller amount and the magistrate apparently taking that on board and understanding it. It would appear to me that the magistrate must have been aware that it was the lesser figure.

4.Really the question is, today, what view I take of the scale of the operation. I assure the appellant that I deal with his case today on the basis of the smaller figure.

5.The second point that is argued by Mr So relates to disparity. The appellant is a fireman and a lot of these bets had come from his colleagues. A station officer, his superior, was arrested at the same time as him and originally they were charged together, but the case was severed. The station officer likewise pleaded guilty after the admission of his statement. He was dealt with by another magistrate. He was sentenced to do some community service.

6.So one needs to look at the two cases and compare their gravity. What has become apparent before me today is this, that the co-accused pleaded guilty on the basis that between the 1st and 3 January he took bets of several thousand dollars in relation to football matches. No figure was put before the magistrate who sentenced the man who had originally been co-accused. The prosecution had tried to do that but, in the face of objection from the defence, the magistrate declined to hear the figure. The figure was, in fact, $311,580.

7.I have the Summary of Facts before me now that was before the magistrate sentencing the co-accused. It may be that he was lucky that the magistrate there did not know the full figure, because it was quite open to those representing that co-accused to say his case was a minor case and therefore made community service a proper sentence.

8.Therefore, when it comes to looking at disparity, one has to realise that the co-accused's case is substantially different as it was presented to the sentencing magistrate. Of course, that robs the argument based on disparity of much of its force. Even if the full picture had been before the magistrate who sentenced the co-accused, the fact is the amount in question was half the amount involved in this appellant's case. His Summary of Facts also revealed that it was this appellant, who was engaged in bookmaking, who approached the co-accused and involved him, taught him how to do it, showed him how to make the profits. Even on the full picture there was a world of difference between the two cases. I regret to say there is nothing in the disparity point.

9.The third matter urged upon me relates to the mental stress to which this appellant has been subject since his arrest. I have a recent medical report which discloses that the appellant now suffers from adjustment disorder with depressive and anxiety features. It has all been related to his arrest and his prosecution and it is the anxiety that these proceedings have been causing him that have put him in that state. I am sure once he knows his fate and it is settled that he will return to the good health that he enjoyed before. Before this he was a man well thought of by his superiors and his colleagues. I have some impressive letters from them and, of course, he had a clear record. I regret to say that the illness, which is entirely referable to his own misconduct, cannot save him from a custodial sentence.

10.I come to the fourth ground which is really, in a way, the major issue which is this: given the sort of man the appellant is and the size of the operation, does he have to go to prison? It has been settled law for a long time in Hong Kong that if you engage in bookmaking, you go to prison unless it is a minor case. Whilst Mr So urges me very nicely to take a sympathetic view of the man in question, and I do, my job involves being even-handed. I cannot let personal sympathy in one case let this appellant avoid custody unless there is a good reason for it. It comes to this: is the scale of his operation a minor one? And the answer to that, I am bound to say, is no. His bookmaking of $622,000 over a period of six days, covering four soccer matches, cannot be described as minor.

11.The magistrate took a starting point of 6 months and gave a third reduction and ended up with the 4 months. I am going to alter that slightly. I do not say the magistrate is wrong, it is just that I would do it differently. I would not have given a full third discount for someone who had lost a voir dire when, as was the case, the voir dire was a factual one with inducements alleged. It took a day's evidence. I do not in any way punish for that, but I would not give the full discount because, in fact, the interview was the basis of the prosecution case and if that went in, they had really won the trial. So I would not give a full third.

12.On the other hand, bearing in mind the mitigation available, I would not have taken a starting point as high as 6 months. For a man like this, imprisonment is going to hurt; his fall is a hard one. It does not need to be any longer than is entirely necessary and I judge that a sentence of 3 months would be adequate. That recognises all the mitigation, and I do not give any further discounts. What I shall do today is vary the order of imprisonment from 4 months to 3 months. In saying that, I do not say the magistrate was wrong, I just take a slightly different view.

Representation:

Miss Jasmine Ching, GC, of the Department of Justice, for HKSAR

Mr Alan So, instructed by M K Lam & Co., for the Appellant