Chau Sau Chun and Anothers v. The Queen
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CACC001171/1977
----------------- Coram: Morley-John, J. Date of Judgment: 8th December, 1977. ----------------- JUDGMENT ----------------- 1. The 1st appellant was found guilty of operating a gambling establishment contrary to section 5(a) of the Gambling Ordinance 1977 and the 2nd appellant was found guilty of assisting in the management of a gambling establishment contrary to section 5(c) of the Gambling Ordinance. The appellants were each fined the sum of $5,000. Originally both appellants appealed against conviction and sentence but they have both abandoned their appeal against conviction and now limit their appeal to one against sentence on the ground that the sentences are too severe. 2. It was agreed that the 1st appellant was the tenant of a small shop in the Yau Tong Estate, Kowloon. This shop sold soft drinks, sweets, ice-cream and tinned goods. The 2nd appellant is the husband of the 1st appellant and he helped her in the operation of this business. The shop also possessed two sets of mahjong tiles and one set of tin kau and the appellants used to hire out these sets for customers to take away. However on the evening of the 21st August 1977 certain customers wanted to play mahjong and drink soft drinks at the tables placed outside the front of the appellants' shop instead of taking the tiles away to play elsewhere. Unfortunately the appellants allowed them to do this and the "gambling school" discovered by the police developed. 3. Counsel for the appellants submitted that the appellants did not know that they were committing an offence by hiring out the tiles to the customers and allowing them to play outside their shop. Counsel says that this is clearly shown from the transcript and by the fact that the appellants allowed their customers to play quite openly outside the shop. Counsel for the Crown agreed that this appeared to be so. There is no evidence that the appellants were participating in the gambling. In fact the learned magistrate found that each appellant was carrying on their ordinary business while persons were gambling at the tables. Counsel for the appellants concedes that the fact that the appellants didn't know that they were doing anything wrong is no excuse in law but that it should be considered in mitigation. He said that the total income of the appellants gained from these offences was $6. That the appellants' joint income from the shop was about $2,000 per month out of which $600 rent had to be paid. That the joint fines amounted to the equivalent of more than six months joint net income on the part of the appellants. That they have three children to feed and educate. They just cannot raise the sum of $10,000. 4. The appellants were not legally represented at their trial and the mitigating factors submitted by counsel were not placed before the learned magistrate. In his Statement of Findings apart from saying that neither appellant had anything to say in mitigation the learned magistrate gave no reason as to why he fixed the fines at $5,000. He also did not appear to make any inquiries as to the appellants' capacity to pay these fines. It has been laid down in the case of The Queen v. Churchill and Others (No. 2) 1966 2 A.E.R. 215 that the amount of a fine should be within the offender's capacity to pay, but even so if the mitigating factors that have been brought to my notice had been placed before the learned magistrate I do not think that he would have imposed the fines that he did. Under the circumstances I consider that these fines are manifestly excessive. The appeal is allowed to the extent that the fines of $5,000 be reduced to fines of $500 in relation to each appellant. 5. Counsel has also informed me that certain stools and tables which were outside the appellants' shop have been seized by the police but that no order for confiscation has been made with regard to the chairs and tables although naturally the sets of tin kau and mahjong were ordered to be confiscated. Counsel has asked that the stools and tables be returned to the appellants and I so order.
Representation: Mr. Bleach, instructed by (Haldane & Co.) for the appellant. Mr. Maxwell, crown counsel for crown/respondent. |