HKSAR v. Yam Oi Lam

[English Translation - 英譯本]
HCMA59/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 59 OF 2013

(ON APPEAL FROM TMCC NO. 168 OF 2013)

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REASONS FOR JUDGMENT

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1.The appellant was convicted on her own plea of a count of “operating a gambling establishment”, contrary to section 5(a) of the Gambling Ordinance, Cap. 148 of the Laws of Hong Kong, and was sentenced to 5 weeks’ imprisonment. The appellant now appeals against the sentence (the term of imprisonment only).

Facts

2.The appellant was the 1^st defendant (D1) at the trial while the eight other co-defendants (2^nd to 9^th defendants) (D2 to D9) had been gamblers at her place.

3.The magistrate summarized in his written findings the facts admitted by the appellant as follows:

“On 8 January 2013, the police mounted an operation and raided No. 3, Hang Mei Tsuen, Ping Ha Road, Ping Shan, Tin Shui Wai, New Territories in execution of a Gambling Authorization. Upon entry, D2 to D9 were found playing mahjong on the premises.

Enquiry revealed that the operator of the gambling establishment charged HK$60 per hour from each table of customers as commission.  D1 was the person-in-charge of the gambling establishment.  In the operation, a total of HK$440 commission was found upon search, together with other gambling paraphernalia including 6 sets of mahjong tiles, three automatic mahjong tables, 15 chairs, two small digital TVs and two round buckets.  The gambling money of other defendants amounted to HK$4805.”

Reasons for Sentence

4.When sentencing, the magistrate said:

“D1, aged 34, is a new immigrant. On 15 February 2000, the court fined her HK$500 for a count of ‘breach of condition of stay’. D1 is married, with a 12-year-old son and a 6-year-old daughter. Since her husband is always not at home, they have a distant relationship and she does not know what her husband does for a living. D1 runs a store at the place of offence, selling soft drinks and allowing neighbours to play mahjong.

I consider that this type of cases is so prevalent in the jurisdiction of Tuen Mun Magistracy that the situation is almost out of control. There is a similar case heard in court every one to two days on average. Shortly after the police have cracked down on an illegal gambling establishment, lawbreakers usually start another one nearby. Just that the gambling establishment operators are different. The court has imposed fines plus suspended sentences, but, unfortunately, the outcomes have been far from satisfactory. I have also made it clear on many occasions during the sentencing in similar cases before that if the situation continues, the court will not turn a blind eye to it and will adopt deterrent sentences if necessary.

According to the legislation, anyone who operates a gambling establishment is liable on summary conviction to a fine of $5,000,000 and to imprisonment for 2 years. The gravity of this type of offence can, therefore, be seen. In paragraph 4 of the judgment in A G v Li Wai Ming and another, CAAR 9/1984, Sir Alan Huggins (Ag CJ) said,

“…, but we do suggest that in all but minor cases under ss 5 and 7 the court should seriously consider whether an immediate custodial sentence is not appropriate, possibly in addition to a fine …”

In the present case, D1 has frankly admitted her guilt, which is the biggest mitigating factor. She claimed that she is a new immigrant and not conversant with the laws in Hong Kong, which was why she committed the offence. Although she has no previous similar record, according to the brief facts she has admitted, upon search, gambling paraphernalia was found at the place of offence, including three automatic mahjong tables, 6 sets of mahjong tiles and 15 chairs. When the offence took place, the eight other defendants were engaged in illegal gambling. D1 was the mastermind of the activities at the gambling establishment, and what is more, the gambling equipment on the premises was quite advanced and of considerable scale.

Having considered all the facts of the case and mitigation, I think 9 weeks’ imprisonment is an appropriate starting point, which will be discounted by one-third for D1’s guilty plea.  So the term of imprisonment will be 6 weeks.  Previously, D1 only had one conviction of ‘breach of condition of stay’ in 2000, so I will exercise my discretion and further reduce the sentence by one week.  Finally, D1 is sentenced to 5 weeks’ imprisonment.”

This Appeal

5.The appellant submitted that the sentence was manifestly excessive. Instead, the magistrate should have considered other sentencing options but failed to do so.

6.Having taken in the submissions advanced by both parties, I have the following observations.

7.Operating a gambling establishment is an offence which cannot be underestimated.  It does tremendous harm to society.  Furthermore, such crimes are hard to solve if well concealed.  I suppose this was the reason behind the suggestion of immediate imprisonment in the abovementioned case of AG v Li Wai Ming & Another.

8.In addition, magistrates know best whether a particular offence is prevalent or particularly prevalent in a particular place.  Magistrates are entitled to enhance the sentence according to the situation of a particular place.  Case law has always allowed this practice.

9.However, no appellate court has ever explicitly mentioned in the limited authorities that anyone convicted of such offences, regardless of any previous similar conviction, should all be sentenced to immediate imprisonment.  On the contrary, many defendants have been given a non-custodial sentence in such cases.

10.I turn from the general to the particular.

11.The magistrate described the gambling establishment in question as “quite advanced and of considerable scale”.  Whether it was correct or not is just a matter of word choice unworthy of discussion.  Of note is that the case happened in a rather remote village where the appellant opened up a space, created a suitable environment and attracted customers with three not ordinary but automatic mahjong tables so that the customers were happy to come and pay for playing mahjong.  There must have been some degrees of calculation, planning and investment.  For this reason, the appellant’s attempt to paint herself as a helpless or even ignorant woman who was almost abandoned by her husband would not succeed.  

12.More than that, relevant photos show that the premises involved were not a store at all.  For example, there was no opened shopfront.  The size of the entrance/exit was no different from that of a normal room door.  There was no signboard whatsoever outside to suggest that it was a shop.  Upon entry was a rectangular space with no equipment such as refrigerator which should be placed in the front part of a normal store other than the three mahjong tables.  Many white fluorescent lamps were installed on the ceiling.  Many notices were displayed on the wall, one of which was explicitly presented as the “game rules” of “this shop” in relation to “rearrangement of seat positions” and “change of bankers”. The plain truth before the court is that it was a mahjong parlour rather than a store.

13.As the appellant pointed out, the gambling money of the eight other defendants in the case amounted to $4805, which, of course, is not a large sum.  They (all females) were aged between 40 and 82.  We may be able to infer from these two points what type of gambling establishment it was and what kind of gamblers it attracted, i.e. that it was a rather low-tier one.

14.Yet, I do not think this is a too important consideration in the present case.  The crux of the issue lies in the fact that the premises, as the police found out, were not a makeshift gambling establishment developed by the boss of a genuine store in response to the interest of residents in the neighbourhood.  At least, when the case happened, the premises at the above address did not have a single function of a genuine store.  Moreover, the case occurred at 4:55 pm on 8 January 2013 (Tuesday), i.e. neither a weekend nor an evening, but there were still two tables of gamblers.  Even if this illegal gambling establishment had been a lower-tier one, the harm it could have brought shall absolutely not be understated.

15.Having considered all relevant factors, I consider 5 weeks’ immediate imprisonment neither wrong in principle nor excessive.

Judgment

16.The appeal is dismissed.

Vivian W. M. Wong, instructed by Messrs Alan Ho & Co., assigned by the Director of Legal Aid, for the Appellant.

Noelle Chit, Public Prosecutor of the Department of Justice, for HKSAR, the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.