HKSAR v. Chan Wai Sheung and Others

[English Translation – 英譯本]

HCMA 43/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 43 OF 2007

(ON APPEAL FROM ESCC NO. 4748 OF 2006)

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BETWEEN

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Before: Hon Barnes J in Court

Date of Hearing: 30 May 2007

Date of Judgment: 30 May 2007

Date of Reasons for Judgment: 7 June 2007

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REASONS FOR JUDGMENT

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1.The three appellants in this appeal were the 2^nd, 3^rd and 6^th Defendants in the case respectively and were charged together with the other 24 defendants with one count of ”conspiracy to defraud at gambling”, contrary to section 16(1)(a) of the Gambling Ordinance, Cap. 148 of the Laws of Hong Kong, and sections 159A and 159C of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The three of them pleaded not guilty and were convicted after trial. The 2^nd defendant was sentenced to 20 months’ imprisonment, the 3^rd defendant 24 months and the 6^th defendant 10 months.

2.The 2^nd defendant appealed in person against his conviction. The 6^th defendant, represented by Mr. Gordon Wong of Counsel, appealed against his conviction while the 2^nd and 3^rd defendants, represented by Mr. Lawrence Lau of Counsel, appealed against their sentences.

3.After the hearing, I dismissed the appeals and I now set out the reasons.

Prosecution case

4.The prosecution case, to put it shortly, was that an undercover police officer (a police sergeant, i.e. PW1) had spent a year posing as a light bus driver in collecting crime information. PW1 was initially recruited by the 27^th defendant to carry a group of people by a light bus to a certain location and to pick up the same group at that certain location some time later. Between January 2005 and January 2006, he had on numerous occasions conveyed the defendants in the case by a light bus, though not always the same defendants on each occasion.

5.It was the evidence of PW1 and three woman police constables who had posed as passers-by that after a group of people were conveyed by the light bus to a certain location, someone in the group then set up a stall with carton boxes improvised as a table. Three playing cards were placed on it and passers-by were persuaded to place bets on the “picture card game” (i.e. to guess which one among the three was the picture card). The shuffler then shifted and shuffled the cards. Gamblers who correctly guessed the picture card won and received payment of double the amount of their stakes. Those who were wrong lost their bets.

6.I will summarize below the evidence of the undercover agent that involved the three defendants during the period of the operation.

7.The 2^nd and 3^rd defendants respectively arranged for and led the members to travel on the light bus driven by PW1 and paid the fare to the witness.

8.On 4 June 2005, the 3^rd defendant took PW1 to a restaurant and asked him if he agreed to act as their driver. When PW1 agreed, the 3^rd defendant told him that he would chop dead the whole family of any person who spilled the beans to the police.

9.On 5 August 2005, PW1 saw the 6^th defendant keep a lookout around the stall’s perimeter.

10.On 27 August 2005, PW1 heard the 2^nd defendant quarrel with the 4^th defendant over the cheating of an 80-odd years old elderly woman out of a few hundred dollars by the 4^th defendant by means of the three picture card game. The 2^nd defendant told the people on board about the three principles that they would not perpetrate on the following people:

(1)           the old, frail or the disabled;

(2)           the pregnant; and

(3)           the mentally handicapped.

The 3^rd defendant later appeared and told the people on board, “Don’t make trouble, set your hearts on making money.”

11.On 27 October 2005, the 3^rd defendant took some people back to the light bus but the 2^nd and 7^th defendants were not among them. PW1 heard the 3^rd defendant mention about a woman in the bank “blowing the whistle”. After the 2^nd and 7^th defendants were picked up, the 3^rd defendant told the 7^th defendant off, telling her something like she “should be alert, the circumstances then have changed”, etc.

12.On 28 October 2005, the 2^nd defendant suddenly took some of the members back to the light bus and told PW1 to drive off immediately. In the meantime, PW1 learned that they had cheated a fat woman out of $10,000.

13.On 9 November 2005, the 2^nd defendant asked the people on board who would act as “Lo Ching” (老正). However, there was no response and the itinerary of that day was cancelled.

14.On 10 November 2005, the 2^nd defendant asked PW1 if he could switch to another light bus in order to avoid the surveillance of the “hounding team” and told the people on board, “If the police ask questions, just say there’s no boss and we just pooled our money to do it.”

15.On 11 November 2005, PW1 mentioned the question of switching to another light bus to the 2^nd and 3^rd defendants. The 3^rd defendant instructed PW1 to say that he knew nothing if questioned by the police, and told PW1 to change the route plate of the light bus.

16.On 8 December 2005, the 3^rd defendant scolded the people on board, accusing them of “not being enthusiastic enough in doing things and being unable to find suckers for they have indulged in chitchats”.

17.On 30 December 2005, the 3^rd defendant again scolded the people on board for “Lo Ching’s tongue not being lively enough” and “Cheung Hau (場口) being listless”.

18.Besides, the 3^rd defendant used words like “swindle”, “cheating”, “changing cards”, “not to reveal the cards if someone bet on the right one and to shout beat it”, etc. when he scolded the people on board.

19.The prosecution also called an expert witness to give evidence that the gambling had an element of fraud.

The defence case

20.All the defendants exercised their right of not giving evidence and did not call any witness.

Grounds of appeal against conviction

The 3^rd defendant

21.The 3^rd defendant did not put forward any ground of appeal in writing. He told the court that he was unprepared because he was unaware that the appeal against conviction would be dealt with together with the appeal against sentence. When I asked him if he needed time for preparation, he said it was unnecessary. Later, he indicated his “case” to me, telling me how he went to the airport on 6 June, how he would not have committed the offence and so forth. I pointed out to him that he had exercised his right of not giving evidence nor call any witness at trial and had not stated his “case”, so he could not put the “case” forward as a ground of appeal. After he was allowed one hour to do his preparation, he abandoned his appeal.

The 6^th defendant

22.The ground of appeal raised by Mr. Gordon Wong was that “there was insufficient evidence to prove beyond reasonable doubt that the 6^th defendant had knowledge of the cheating modes as alleged by the prosecution”.

23.Mr. Wong submitted that the 6^th defendant had in total appeared on five occasions (i.e. 28 May, 5 August, 13 September and 3 December 2005, and 4 January 2006) and there was no evidence to show that the 6^th defendant had acted as a shuffler or played the role of a mastermind. As alleged by PW1, the 6^th defendant only kept a lookout around the stall’s perimeter on 5 August 2005.

24.Mr. Wong said that those conversations about “cheating people”, “duping people” or “swindle” took place on 27 August, 28 October and 8 December 2005, and 3 January 2006. There was no evidence to show that the 6^th defendant was present and heard the conversations.

25.Mr. Wong argued that there was no direct evidence in this case to show that the 6^th defendant had knowledge of the matter of “dealing cards, revealing the cards in a manner so that the gamblers form an illusion”. The appearance of the 6^th defendant on five occasions was not sufficient to justify an inference beyond reasonable doubt that he had knowledge of the cheating alleged by the prosecution.

Respondent’s response (re appeal against conviction)

The 3^rd defendant

26.Mr. Isaac Tam, Senior Government Counsel for the Respondent, submitted in his written reply that the 3^rd defendant had participated in the activities of the conspiracy on 4-6 June, 27 August, 26-27 October, 10-11 & 25 November, 7-8 & 30 December 2005, and 3-4 January 2006. The 3^rd defendant’s grounds for claiming his innocence were beyond the respondent.

The 6^th defendant

27.Mr. Tam submitted that the prosecution did not have the burden to prove that the 6^th defendant had knowledge of the cheating modes of the swindle syndicate. The charge only alleged that the 6^th defendant had conspired with other persons to win money for themselves from some other persons by fraud in the course of and in connection with gambling.

28.Mr. Tam submitted that cheating modes were not included in the particulars of the offence. Different members in a fraud or swindle syndicate played different roles. He quoted as an example that in a bank robbery, the culprit who acted as the driver was not required to know how his accomplices restrained the guards and other people in the bank, how explosives were placed or how the vault was opened by some other means in order to get money and so forth. It sufficed that the person knew the purpose of the operation was to steal money from the bank by force or by making or attempting to make any person fear for being treated with force there and then. Therefore, it would suffice if the 6^th defendant had knowledge of the syndicate winning money from other people by fraud in the course of and in connection with gambling.

29.Mr. Tam stated that the magistrate had meticulously and in great detail explained his chain of thoughts, and how he had found an agreement, its nature, purpose and scope (or substance) and the parties involved, from the evidence in paragraphs 93 to 104 of his Statement of Findings.

30.The magistrate ruled (see paragraph 99 of the Statement of Findings):

(i) The three picture card game was gambling.

(ii) This gambling game had an element of fraud which included changing cards and members shouting “Beat it” if gamblers bet correctly on the picture card.

(iii) The agreement of conspiring to defraud by means of gambling as alleged in the charge sheet existed substantively and in exactly the same form as alleged in the charge sheet.

31.With regard to the complaint of the 6^th defendant that there was no evidence to prove or the magistrate did not make any finding that the 6^th defendant was present and heard the conversations of people in the syndicate saying “duping people”, “cheating people” and “swindle” on 27 August, 28 October and 8 December 2005, and 3 January 2006, Mr. Tam referred to the applicable rule in the offence of conspiracy, namely the co-conspirator’s rule. Having cited paragraphs 36 to 60 of the authoritative Archbold Hong Kong 2007 on the said rule, he submitted that the magistrate had clearly indicated that he had considered other evidence independent to the co-conspirator’s rule to see if there was sufficient evidence to connect the 6^th defendant to the agreement. It was only after the magistrate had considered the said independent evidence that he considered all the evidence relevant to the 6^th defendant, including the evidence admitted under the co-conspirator’s rule, and ruled that the 6^th defendant was a conspirator who had full knowledge. By full knowledge, he meant that the 6^th defendant had knowledge of the syndicate perpetrating the fraud by means of gambling.

Judgment

The 3^rd defendant

32.The 3^rd defendant’s appeal is dismissed upon his abandonment. Besides, as indicated in Mr. Tam’s Reply and the prosecution case, insofar as the extent of the 3^rd defendant’s participation was concerned, I do not see any justification to say that the conviction was unsafe.

The 6^th defendant

33.I entirely agree with the views of Mr. Tam in his submission. Further, the evidence clearly showed that the said gambling was not simply illegal street gambling but defrauding at gambling. Had the 6^th defendant only appeared once, it might not have been possible to come to the only reasonable inference that he had conspired to defraud at gambling. The 6^th defendant had appeared on numerous occasions and had acted as a lookout. The indisputable inference was that he had conspired with the other defendants and persons at large to defraud at gambling.

34.The conviction was not in any way unsafe. The appeal is dismissed and the conviction upheld.

Ground of appeal against sentence

35.The ground of appeal raised by Mr. Lawrence Lau was that the magistrate erroneously found that the 2^nd defendant was a “leader” and the 3^rd defendant the “mastermind” and passed the sentences on the basis of that finding. As a result, the sentences were manifestly excessive and plainly inconsistent with the sentences of the other convicted defendants.

36.After comparing the roles played by and the frequency of participation of the 2^nd and 3^rd defendants to that of the other defendants, Mr. Lau submitted that the sentences imposed by the magistrate were not in line with the sentencing principle laid down by the Court of Appeal in R. v. Chan Tak Sang & Others [1987] HKLR 1203.

Respondent’s response

37.Basically, Mr. Tam submitted that the relevant principle was merely “a general rule”. Where there was evidence in a case that a defendant was the ringleader, mastermind or played a leading role in the syndicate, the law required that such a person be given a heavier sentence than other members of the syndicate. In support of his argument, Mr. Tam cited the case of AG v. Tam Ka Lok & Ors [1990] 1 HKC 201.

38.Mr. Tam pointed out in detail the roles played by the 2^nd and 3^rd defendants and the extent of their participation, submitting that the 2^nd defendant obviously played the role of a “leader” and the 3^rd defendant was the “mastermind”. He submitted that there was nothing improper in the sentences.

Judgment

39.I agree with Mr. Tam’s submission.

40.In the said Chan Tak Sang case, Cons VP said this in his judgment:

“… as a general rule we would not expect there to be any significant variation in the sentences imposed on different offenders in any particular case by reason of the different roles that each had played in the course of that particular swindle. From the very nature of this kind of fraud the parties are dependent upon the conduct of each other, each party needing to succeed in his own part before the whole can succeed.” (emphasis added)

41.The Court of Appeal had at the outset stated that the said principle was “a general rule” and not “a rigid rule”.

42.The roles played by the 2^nd and 3^rd defendants and the extent of their participation were indeed “a leader” and “the mastermind” respectively. Furthermore, the 3^rd defendant had not only arranged for PW1 to pick up members of the syndicate by a light bus and instructed PW1 as to how to respond to police investigation and so on, he had also warned PW1 that he should never spill the beans to the police lest his life would be in danger.

43.Looking at the facts of this case, the sentences imposed on the 2^nd and 3^rd defendants by the magistrate were neither wrong in principle nor manifestly excessive. Considering the role of a mastermind played by the 3^rd defendant and the threatening words that he had uttered to PW1, the sentence of 24 months’ imprisonment could be said to be rather lenient. However, as the sentence was not excessively lenient, I did not propose to increase the sentence and hence did not invite counsel to address me on “the increase of sentence”.

44.For the above reasons, the appeals against sentence were dismissed and the sentences affirmed.

Mr. Isaac Tam, Senior Government Counsel, for the HKSAR.

Mr. Lawrence Lau, instructed by the Legal Aid Department, for the

2^nd and the 3^rd Defendants (re appeal against sentence).

The 2^nd Defendant in person (re appeal against conviction).

Mr. Gordon Wong, instructed by Legal Aid Department, for the 6^th Defendant (re appeal against conviction).

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.