The Queen v. Lee So and Others

CACC000180/1984

Appeals against sentence for gambling in a gambling establishment. Previous convictions are a factor to be taken into account when deciding if custodial sentence should be considered. Appellants had several such previous convictions. Suspended sentences were appropriate as a deterrent. A.G. v Ho Sik-yan and others considered.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 180 of 1984

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BETWEEN

Coram: Hon. Penlington, J. in Court

Date: 4th May 1984

Date of hearing: 4th May 1984

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JUDGMENT

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1. This is an appeal by the 3 appellants against sentence.  The facts as found by the learned Magistrate were simple.  All three were found in premises at Stanley, a stone hut.  They were not themselves managing or running the establishment but were clearly gambling in it, therefore the proper charge was under section 6 which carries a maximum sentence of $10,000 fine and imprisonment for 3 months.

2. The 1st Appellant, Lee So, said in his notice of appeal that he was appealing against not only the fine of $750 but the one month suspended sentence of imprisonment which was passed. Quite clearly that is not correct and he in fact was only fined $750.

3. It was said in the Attorney General v Ho Sik-yan & Others⁽¹⁾ that the normal fine should be in the region of $600 to $700 but there has been some inflation since then.  Lee So has 3 previous convictions and I am satisfied that the fine of $750 was perfectly proper.  There is no possible grounds for interfering with that and his appeal must be dismissed.

4. As per the other two appellants are concerned, Chan Chiu and Cheung Kwan-ming, suspended sentence of one month imprisonment was passed in each case, in addition to the fine of $750.  I am satisfied that the fine was perfectly proper and there can be no possible reason for interfering with that.  The only thing which I think I should consider was whether it was proper to impose a suspended sentence. In Ho Sik-yan the Court said that it was proper to use a suspended sentence only in cases where circumstances are such that the Court should in the first instance consider a sentence of imprisonment rather than a fine or lesser penalty.  I think that must be right. What the Court has therefore to say to itself is taking all the factors into account including previous convictions, would one normally consider a sentence of imprisonment since the legislature has laid down that a sentence of imprisonment for up to 3 months is a possibility in these cases. It is true, as has been pointed out by Mr. Lau, that there are no particular aggravating circumstances in the case itself. Nevertheless the 2nd Appellant, Chan Chiu, does have 5 previous convictions including one in October 1983.  He has been fined $500 for the last two occasions.  The appellant Cheung has 6 previous convictions including one for managing a gambling establishment. In view of those previous convictions, all of which are recent, I think the Court should consider the question of imposing a sentence of imprisonment and therefore the requirement as laid down in Ho Sik-yan is met. It is proper in a case where there have been persistent contraventions of the ordinance to consider whether the time has come where a fine is insufficient and a period of imprisonment is the only way to deter. There is naturally a reluctance to sentence a person to imprisonment for what is a non-violent and a crime which, if the same actions with the same course of conduct was committed in other premises, as has been pointed out by Mr. Lau, indeed no crime at all was committed.  The Court however must take the legislation as it finds it.  It is clearly the purpose of the legislation that gambling shall be restricted to legitimate avenues of gambling and there are now in Hong Kong many such available.  I think in view of the previous convictions of both the 2nd and 3rd Appellants the Magistrate was quite proper in considering the sentence of imprisonment and it may well be that if he had not suspended it that decision would not be open to challenge.  He has however, and I think quite properly, decided that he should suspend the sentence of imprisonment and the appellants now realise the possible consequences of another repetition of this offence. The Magistrate has not stepped outside the guidelines set down in Ho Sik-yan and the appeals of the 2nd and 3rd Appellants are also dismissed.

(1)    Application for Review No. 16 of 1981

Representation:

Mr. Christopher Harris, Counsel for the Crown

Mr. A. Lau, Haldane Midgley & Co. for all appellants