HKSAR v. Yau Po Ming

DCCC275/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 275 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges, bookmaking, Charge 1, and two charges of possession of dangerous drug, Charges 2 and 3.

2.In the evening of 15 May last year a team of police officers arrived at Ho Chung Village for an operation.  At about 6.33 pm they saw the defendant walking towards a private car in a fast pace outside 23 Ho Chung Road in Sai Kung.  The defendant was looking around and acting furtively.  The police officers therefore intercepted him.  The defendant immediately covered the left front pocket of his shorts with his left hand.  After a body search a plastic bag containing 18.06 grammes of a powder containing 13.6 grammes of ketamine was found in the left front pocket of the defendant’s shorts.  The police also found two mobile phones, cash of HK$3,690, 100 Renminbi and 10 Macau currency.  The defendant was arrested for Charge 2.  Under caution he alleged that the drugs were for his own consumption.

3.The defendant was taken back to his home at No. 36 Ho Chung Sixth Lane inside Ho Chung Village for a house search whereupon the police found a further 14.44 grammes of powder containing 11.55 grammes of ketamine inside the metal box on a computer desk.  Under caution the defendant admitted that the ketamine found in his home were for his own consumption.

4.Inside another metal box in the living room the police found 13 pages of handwritten bookmaking records (the “box papers”). There were some persons’ names and figures on the box papers.  Under caution at the scene the defendant admitted that the box papers were written by him and were betting slips for recording his customers’ bets.  He said that there were customers names, the name of soccer gambling websites and the amounts of bets on the box papers.  He also admitted that he had earned 5 per cent commission from the bets. 

5.The police also seized two computers, a calculator, a newspaper containing soccer news and odds in the defendant’s home.  Subsequently, in the two computers the police discovered the following:

(i) the two computers were used to browse three gambling websites: www.ala888.net; www.nn222.net; and ra.ra8888.com;

(ii) a gambling expert explained that the normal structure of a gambling website is as follows. A shareholder is the owner of the website. Under the shareholder is a general agent who controls a number of agents. Under the agents are customers. When a customer lays a bet with a website the above parties can earn commissions of different percentages;

(iii) the gambling expert was of the view that the Internet browsing record of these websites show that the user of the computers has logged in www.ala888.net as a general agent and checked the business reports of himself and the reports of the agents working under the user. The record also shows that the computer’s user has checked the betting records of his customers;

(iv) as only the general agent has the authority to browse the business reports of himself and the agents the gambling expert was of the view that the computer’s user was the general agent of www.ala888.net;

(v) the betting record shows that there were five agents and 19 customers under the computer’s user. The betting records of the customers under the computer’s user show that bets in the total sum of about $922,390.78 and 1,116,900 Renminbi were laid by the customers between 28 March and 15 May last year; and

(vi) for the other two websites the role of the computer’s user was only an agent.

6.The gambling expert also examined the box papers and discovered that:

(i) the box papers contained names or nicknames of some common soccer gambling websites, for example Crown and New Star;

(ii) the login name NF64322 was written on one of the box papers. This is the log in name of an agent of the gambling website www.ala888.net and was found in both computers; and

(iii) the login name NF6436 was written on one of the box papers. This is the login name of the general agent of the gambling website www.ala888.net and was found in both computers.

7.The police conducted video records of interviews with the defendant subsequently.  During the interviews the defendant alleged that:

(i) at the material time he was the manager of a bar. From time to time he, as a middleman, helped his customers to lay soccer bets with another bookmaker called Ah Wing;

(ii) Ah Wing would then lay bets with some illegal gambling websites. In doing so the defendant earned a profit of a few hundred dollars per week. He had been engaging in bookmaking for several months prior to his arrest;

(iii) the box papers were the figures of the bets placed by his customers and were written by him. He owned the two computers in his home, but he had never used them to lay bets with gambling websites;

(iv) the defendant claimed that some of his friends would come to his home occasionally and would use his computers; and

(v) for the ketamine, he said that he had purchased it from an unknown male at $2,500 inside a bar in Mong Kok on 11 May last year. He had been taking ketamine for two years and had consumed five to seven grammes per day.

Record

8.The defendant has seven previous convictions, one of which was for gambling and one for possession of dangerous drugs. 

The defendant’s background and mitigation

9.The defendant is 35 years old.  He is single but lives with his girlfriend.  His parents are in their early 60s and 70s and are retired.  His father is suffering from intestinal cancer and is in hospital after a recent operation.  Although the defendant has siblings, his elder brother died a few years ago.  His elder sister is married and has her own family.  The defendant is responsible for taking care of his parents on a daily basis and is the sole breadwinner.  Although the defendant lived with his girlfriend his parents only live nearby.  Counsel submitted that the defendant is remorseful, which is indicated by his guilty plea and frank admission to the police, without which it would be difficult to secure a conviction for Charges 1 and 3.

10.I agree that the defendant had admitted to bookmaking to the police, but he was endeavouring to minimise his role in his records of interview.  In respect of Charge 1, the prosecution helpfully refer the court to two cases, Yip Kam Fai [1993] 2HKC and Chan Wing Hong HCMA1252/2002.  Counsel submitted that the operation in the present case, so far as the amounts are concerned, is much smaller than in the two cases cited.  I agree that the amounts in the present case are smaller, however that’s amounting to over $2 million within a space of less than two months cannot in any way be regarded as insignificant.  Moreover, there are a number of other aggravating factors.

11.The defendant accepted that the defendant was a general agent.  That means apart from the shareholder or owner of the website he was at the highest rank.  According to the Admitted Facts there were five agents under him.  In other words, this is not a person acting alone.  It was a small syndicate.  It was part of a syndicate.  I do not know how big or small it is because I do not know how many general agents there are.

12.The bets were not only in Hong Kong currency. There were over a million dollars worth of bets in Renminbi.  There was, therefore, a cross border element. 

13.In the case of Yip Kam Fai, the accused was only earning 1 per cent as commission.  In the present case the defendant was taking a 5 per cent commission.  In other words, the defendant’s commission was five times of that in the case of Yip.

14.Having considered all the abovementioned matters I adopt a starting point of 2 years' imprisonment.  I give the defendant full credit for his guilty plea.  The sentence is reduced to 16 months.

15.As for Charges 2 and 3, the drugs were all found on the same day in very close proximity.  They are only dealt with in two charges because the drugs were found in two different places.  The total amount of narcotic were 25.26 grammes of ketamine.  The quantity is not insubstantial.  The defendant alleges that he consumes five to seven grammes per day.  Prosecution accepts that that is possible. 

16.However, the defendant, at the time of his arrest, worked in a bar and has a previous conviction for possession of dangerous drugs.  As is demonstrated by Charge 1, the defendant is not adverse to turning to crime to augment his earnings.  Even if he consumed five to seven grammes per day the latent risk is still substantial.  For Charges 2 and 3 I adopt a starting point of 15 months for each charge and add to that 6 months to reflect the latent risk.  See Mok Cho Tik CA165/2000 as applied in Ho Ka Ke CACC378/2009.

17.That makes a total of 21 months as a starting point for each charge.  I'll give full credit to the defendant for his guilty pleas.  The sentence for each charge is reduced to 14 months.

18.The two charges involve two different lots of drugs and sentences are based on the narcotic content of the drugs in each charge.  Technically the sentences should be consecutive.  However, I have to take into consideration the principle of totality.  I order that six months of Charge 3 to be served consecutively to Charge 2. 

19.Charge 1 is wholly different in nature to Charges 2 and 3 and were committed on different dates.  Again the sentences should be consecutive. 

20.Taking into consideration the principle of totality, I order that 8 months of Charges 2 and 3 be served consecutively to Charge 1.  That makes a total sentence of 28 months or 2 years and 4 months.