HKSAR v. Kwok Wai Keung

DCCC845/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 845 OF 2008

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HKSAR

v.

Kwok Wai-keung

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Reasons for Sentence

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1.Initially pleading not guilty to an offence of bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance, Cap.148, and to an offence of dealing with property known or reasonably believed to represent proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap.455, you, as D1 in this case, changed your plea to guilty at what was effectively the beginning of the evidence. 

2.I say that because we commenced with a voir dire, the special issue having been resolved in your favour.  At that time I expressly criticised the actions of the police and the way you had been dealt with.  You went on to admit the brief facts and I convicted you.  It is only for completeness I record that Charge 3, which was the same as Charge 2, was dismissed against D2 on an offered no evidence by the prosecution.

3.Briefly the facts are as follows.  You were the sole proprietor of Wai Pang Waste Paper Company situated at Decca Industrial Centre, No.12 Kut Shing Street, Chai Wan.  At about 1600 hours on 21 May 2007 police officers entered the premises under the authorization of a gambling authorization.  You were sitting at your desk in front of a computer with your right hand on the mouse.  The computer was logged onto an illegal gambling website.  At 1645 hours you were arrested for bookmaking.

4.Under caution you admitted accepting bets from your friends in order to supplement your poor business.  At 2010 hours your house was searched and a further computer seized.

5.You said that the illegal betting website had been provided by a friend named Wah Chai.  You used it for football and horseracing bets.  You admitted to earning commission by bookmaking services through the internet.  You had been doing that since mid-2005.

6.A gambling expert found that the total amount of money from betting was around $2 million.  Computer files contained details of what are commonly called punters 19 in number.  That is Charge 1. 

7.You are the sole signatory of a Hang Seng Bank account.  Between January 2006 and May 2007, amongst other deposits and withdrawals a total sum of approximately $2 million was deposited and withdrawn via this account.  These sums were the proceeds of illegal bookmaking, Charge 2.

8.You are a man of hitherto clear record.  I adjourned the case for a probation officer’s background report.  That report is before me today.  I am told that it has been explained to you.   You understand it and agree with it.  On your behalf Mr Iu entered very persuasive mitigation.  The probation officer’s background report was an excellent report and highly supportive of you.  Quite rightly and quite understandably, Mr Iu made reference to that report and its positive comments.

9.In mitigation I was told the role played by you was that of a middleman rather than the main bookmaker.  The operation had in fact been an attempt to shore up your failing business thereby protecting the jobs of your workers.  The amount involved was not the largest.  It was some $2 million over a period of 2 years.  I was told that you benefited to the extent of 1 per cent commission.  I was also told by Mr Iu that those who had bet with you were either friends or acquaintances, in total 19 persons.

10.In respect of the two charges, Mr Iu referred me to various sentencing authorities which dealt with both the offence of bookmaking and money-laundering.  I do not intend to refer to those authorities in detail suffice to say that these were dealing with large amounts of money and large amounts of time and put in context your operation.  Quite rightly, Mr Iu described these as worst case scenarios.  I accept there is a great deal of difference between those cases and the present one.

11.Mr Iu sought to persuade me that a non-custodial sentence should be considered in this case.  However, if that was not accepted, he urged leniency, a full discount should be considered.   An additional factor he urged upon me was in respect of delay.  Between your arrest and being charged, that appeared to be an unaccountable delay of some 18 months.  Mr Raffell on behalf of the prosecution generously accepted that delay.  He accepted that it was no fault of yours and referred to problems within the police in their investigation.  The tenor of what he said suggested to me that he agreed with Mr Iu’s contention.

12.In sentencing you I took into account the facts of the case, the nature of the charges, the contents of the very good probation officer’s background report and the mitigation advanced.  I note that you are a man of hitherto clear record.  Both charges are serious, there is no doubt of that.  I accept that your role is a middleman, but nonetheless, this is a full act of bookmaking, an act of bookmaking performed for easy money, and also that the money-laundering offence naturally flows from the 1st offence.

13.In this case we are dealing with some $2 million over a period of two years.  This is not the most substantial in amount, nor in time span.  But in my opinion it cannot be said to be insubstantial.  I accept that your profit was some 1 per cent of the commission and that you pursued your betting through friends and associates.  I also accept that the motive that drove you was to keep your own business afloat for your own benefit and for the benefit of your workforce.

14.The major factor in your mitigation is provided by, what I have referred to before, the probation officer’s report.  That report speaks well of you in the past and suggests that it is unlikely you will re-offend.  I have taken that fully into account.  Having said that, I have to tell you that I am of the opinion that only an immediate prison sentence meets the seriousness of these charges.  However, as I indicated to Mr Iu, the full discount of one-third would be allowed given that the plea was entered after your successful exclusion of the cautioned statement.

15.Taking all factors into account, I will sentence as follows.  Please stand.  On the 1st charge, I take a starting point of 15 months’ imprisonment, reduced to 10.  On the 2nd charge, I take the same sentence, that is 15 months’ imprisonment, reduced to 10 for your plea of guilty.  I do find there was an unwarranted delay in your charging in this case.  The authorities are clear, that entitles you to a small discount.  That discount will be a discount of one month in each case, so therefore you are sentenced to 9 months on each charge.

16.The sentences will be served in this way.  On the 1st charge, you will go to prison for 9 months.  On the 2nd charge, you will go to prison for 9 months.  For the principle of totality, one month will be served consecutively on the 2nd charge and 8 months will be concurrent, that is a total of 10 months' imprisonment.