THE QUEEN v. YAU MAN KIT

HCMA000635/1985

IN THE SUPREME COURT 0r HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 635 of 1985

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BETWEEN

	THE QUEEN	Respondent
	and
	YAU Man-kit	Appellant
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Coram: Hon. Jones, J.

Date of Hearing: 19th August, 1985

Date of Delivery of Judgment: 19th August, 1985

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JUDGMENT

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1. The appellant appeals against his sentence of six weeks imprisonment and a fine of $2,000 imposed upon him by a Magistrate on the 31st May 1985 for gambling in a Gambling Establishment contrary to Section 6 of the Gambling Ordinance, Cap. 148.

2. The appellant was one of thirteen defendants who were arrested in a police raid on the 7th April 1985 for illegal gambling, viz. playing Pai Kau. The Police seized $51,980 and various items of gambling equipment in the raid. All the defendants pleaded guilty to the charge except the 2nd defendant against whom no evidence was offered. Apart from the appellant the other defendants received fines ranging from "$500 - $2,000.

3. The maximum penalty for this offence is a fine of $10,000 and imprisonment for 3 months.

4. In his Statement of Findings the learned Magistrate imposed a custodial sentence, because of the decision in Attorney General v. Ho Sik-yan & Others (1984) HKLR 327.

5. In that case the Court of Appeal set out guidelines for sentencing offenders under Section 6 of the Gambling Ordinance. At pages 339 and 332 McMullin V. P. had this to say:-

"	(a)	...... a good case has been made out for increasing the basic tariff rate for first offenders under s. 6.
	(b)	That that rate should be in the region of six to seven hundred dollars.
	(c)	That previous convictions should be taken into account in considering whether the basic rate should be exceeded.
	(d)	That these guidelines are not intended to fetter the discretion of a magistrate to deal more leniently with any given case whether by way of smaller fine or by the use of any of the more merciful expedients available in the law whenever the circumstances appear to him to justify such a course.
	(e)	That imprisonment for a s. 6 offence should only be considered where peculiarly aggravating circumstances are disclosed.
	(f)	That it is proper to use a suspended sentence of imprisonment only in cases where the circumstances are such that it is proper in the first instance to consider a prison sentence rather than fine or any lesser punishment.

                As to this last point, there is an attractive logic in Mr. Lucas' suggestion that suspended sentences are peculiarly apt as a method of honouring the intention of the Legislature where it is plain that a heavy fine is called for and the defendants' means are clearly inadequate to discharge it.  We must, however, maintain the court's attitude in regarding a suspended sentence as a sentence of imprisonment notwithstanding that there is some reason to believe that popular opinion may tend to regard it as something in the nature of al absolute discharge. It may be that the effect for which Mr. Lucas argues might in a suitable case be served by a conditional discharge under section 30(1)(h) of the Magistrates Ordinance.'

 

6. Before the present offence the appellant had six similar previous convictions. Three were committed in 1979 when he was fined $250, $25 and $200, one in 1980 when a fine of $150 was imposed, and two in 1984 when he was fined $100 on both occasions. No aggravating circumstances were disclosed in this case which could possibly justify a custodial sentence. The sentence of imprisonment was wrong in principle. Although I did not interfere with the amount of the fine it is somewhat on the high side.

7. The appeal is therefore allowed to the extent that the sentence of imprisonment is set aside.

(B.L. Jones) Judge of the High Court

Representation:

Mr. Thomas Iu (Y.K. Poon & Co.) for Appellant.

Mr. I.G. Cross (Legal Department) for Respondent.