HKSAR v. Leung Chi Fai

CACC 490/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 490 OF 2011

(ON APPEAL FROM DCCC 650 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Line J (giving the reasons for judgment of the court):

1.The appellant sought leave to appeal convictions in the District Court before Deputy District Judge A Kwok (as he then was) for bookmaking contrary to section 7(1)(a) of the Gambling Ordinance Cap 148 and money laundering contrary to section 25(1) of the Organised and Serious Crimes Ordinance Cap 455. He also sought leave to appeal out of time the total sentence of three years and six months’ imprisonment.

2.On 8 February 2013 the appellant abandoned his application in respect of conviction and we dismissed it.  We granted leave to appeal sentence out of time, treated the application as the hearing and allowed the appeal to the extent of ordering the two terms of three years’ imprisonment to run concurrently.  We said that we would give our reasons later.  This we now do. 

3.The police raided residential premises in Cheung Sha Wan, where the appellant lived with his wife, on 11 June 2010.  The appellant was in his living room using a notebook computer.  Five suspected betting slips were found in the appellant's wallet.  Five more suspected betting slips were found on the coffee table beside the notebook computer.  The television was on receiving the broadcast of a World Cup football match.

4.An expert in the forensic examination of computers was called.  He found on the notebook computer 151 files of suspected betting records and 11 further files on a desktop computer seized in the premises.  These files had been automatically created when the user of the computer browsed the Internet and he was able to say from which website they originated.

5.The files were examined by an officer with, as the judge described, vast experience of gambling cases.  Based on his expertise he was able to tell the court that there were three classes of people involved in soccer bookmaking activities in Hong Kong, namely (1) the general agent, the banker taking bets ultimately (2) the agent, the middleman who placed the bet with the banker and (3) the punter.

6.He said that the general agents would set up websites for taking bets and recognised members, including agents and punters, could log in with a unique account name and password; that no payment was required when placing bets and wagers were calculated by a credit limit; that agents would be paid commission from the general agent; that payments would be settled between the parties using bank accounts or cash; that the computer or server used by the bookmaker will keep relevant records; that there were different platforms for the general agent, the agents and punters; and that only one in the higher rank of the hierarchy could look into the records of the lower ranks.

7.The gambling expert opined that the user of the notebook computer was the general agent of a bookmaking syndicate because at the end of the webpages of each file retrieved from this computer were the general agent results, allowing the user to view the betting records of the punters under the individual agents.

8.He said that the evidence revealed seven agents working under the general agent, each of whom could be identified by a code number, who dealt with bets placed by altogether 20 customers with their own codenames.  He said that the betting had been made on soccer and basketball matches with a total betting amount of $4,401,987 and RMB 1,323,300 covering the period from 22 March 2010 to 10 June 2010.

9.No figure for the bookmaking turnover for the charge period of just over a year was mentioned in the papers or in argument before us.  We are told that no such figure was given below.  It is apparent that the gambling expert selected the period from 22 March 2010 to 10 June 2010 for analysis. We are not told why he chose such a period.  In the absence of any indication to the contrary, and because the use of the bank account appeared to be relatively consistent without troughs or peaks of activity through the year, we infer that the bookmaking turnover must have been in the region of $20 million.  This sits comfortably with the description by the judge of the bookmaking as being "a very substantial gambling operation".

10.The appellant had a Hang Seng Bank account, the subject of charge two, into which $2,104,000 in cash was deposited between 1 June 2009 and 11 June 2010.  This cash was either transferred to other bank accounts or withdrawn in the form of cash.  The cash withdrawals amounted to $443,700 and the ATM transfers to $1,577,718.  The fact that the deposits into the account were significantly less than the bookmaking turnover for the year is explained by the fact that punters could bet on credit.  There was no need to use the account for any individual bet or series of bets.  The activity in the bank account would reflect how often punters were called upon to settle their accounts.

11.The judge passed sentences of three years’ imprisonment on each charge and ordered that six months of the sentence on charge two run consecutively to the sentence on charge one.

12.The appellant sought our leave to appeal against the sentences out of time.  He explained his failure to pursue the appeal against sentence in terms of receiving advice to appeal his conviction but no advice concerning sentence, thereby fostering his assumption that there was no merit in the latter.  He explained that new lawyers advised him otherwise and it was thus that in June 2012, whilst his appeal against conviction was pending, he sought to remedy the situation.

13.We will first address ourselves to the merits of his appeal against sentence.

14.The first point taken concerns whether or not the two sentences should have been wholly concurrent.  The money laundering charge ran over the same period as the bookmaking charge.  There was no suggestion that any money laundering took place other than by the appellant dealing with the proceeds of his own bookmaking.

15.The judge said that the two offences were of a completely different nature and, as a matter of principle, wholly concurrent sentences were not appropriate.  Whilst it is correct to say that the offences are different that is not the point.  The point is whether the money‑laundering offence added to the culpability of the appellant (see HKSAR v Chan Kim Chung Nelson CACC 432/2010).  We are of the view that it added nothing to the culpability disclosed by the bookmaking offence.  Features mentioned by counsel for the respondent, such as the appellant being the boss and receiving the profits, were reflected in the sentence for bookmaking.  In those circumstances the sentences should have been concurrent and we ordered them to be so.

16.The second point taken was that the sentences, individually and totally, were manifestly excessive.  Given our reduction to a total of three years’ imprisonment, the argument narrowed to whether the sentence of three years for the bookmaking was open to criticism.  Counsel for the appellant realistically acknowledged that he could not argue that three years’ imprisonment, for an operation of the type already described, was manifestly excessive.  We agree.

17.As regards the application for leave to appeal out of time, we considered the merit of the argument for concurrent sentences and the explanation advanced by the appellant for the delay in appealing his sentence, in the context of his appeal against conviction then proceeding.  We also noted that the decision in HKSAR v Chan Kim Chung Nelson, at the forefront of the appellant's authorities, was available to those now advising the appellant but was not available to those originally acting for him, the judgment being delivered on 16 February 2012.  We judged it right to grant him leave out of time.

Ms Virginia Lau SPP, of the Department of Justice, for the respondent

Mr Giles Surman, instructed by Chan & Tsu, assigned by Director of Legal Aid, for the appellant