HKSAR v. HO WAI KEUNG

HCMA 59/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 59 OF 2005

(ON APPEAL FROM KCCC 12678 OF 2004)

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J U D G M E N T

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1.  The Appellant first appeared before me on 13 April 2005 appealing against his conviction on two charges, one of Gambling Unlawfully in a Place not being a Gambling Establishment and the second, being a person in respect of whom a Deportation Order was made, had breached that order.  He appealed also against sentence.

2.  On 13 April, the matter was adjourned, so that the Appellant could apply to the Hong Kong Bar Association to see if he qualified for their pro bono legal service.  He did not and he appears in person today.

3.  His grounds of appeal which were delivered orally were that he was not guilty of the gambling, and that he had been a victim of a frame-up by the police who had falsely accused him of the offences and who had given false evidence in court.

4.  The Appellant was one of about 14 people who were arrested after the police conducted observation in a garden in Tung Chau Street and had seen organised gambling taking place.  The gambling had gone on for some time; the police arrested the participants after about five games had taken place.  The game was “Sap Sam Cheung”. 

5.  The Appellant claimed that he did not speak Chinese, he did not know how to gamble and that he had been falsely arrested by the police who were trying to trap foreigners.

6.  A gambling expert had given evidence that ability to speak Chinese was not essential in order to take part in the game.  I am somewhat sceptical of the claim that the Appellant did not speak Chinese, because he he had married a Chinese wife, and clearly has some, if not a perfect understanding of Cantonese.

7.  I have considered the matters raised by the Appellant but I see no basis for disturbing the Magistrate’s finding in respect of the gambling conviction.

8.  In consequence of his arrest, the Appellant was also charged of breach of a permanent Deportation Order which had been issued in July 1998.  It was issued to him in the name under which he appeared in court and also two aliases, Hussain Sajjad and Sajjad Ali.  Again the Appellant said that he had been framed for this offence.  He said that his signature was forcibly obtained by the Immigration Department prior to his being deported, and that he had been told that he was able to return to Hong Kong after the expiration of two years.

9.  Evidence was given by the Immigration Officer who had explained the meaning of the Deportation Order to him.  He told the court that the Appellant had no difficulty understanding the explanations in English, and it was he who escorted the Appellant to the airport prior to his expulsion.  He was satisfied that he could still identify the Appellant.  The Magistrate compared the photograph attached to the Deportation Order and the features of the Appellant and was satisfied that they were the same person.  The Magistrate had been told by the Appellant that he had been unable to understand the explanation given by the Immigration Officer.  Clearly, the Magistrate did not accept that that was the case.

10.  I am satisfied that the Magistrate, having heard the evidence, correctly convicted in respect of the breach of the Deportation Order, and that the Appellant had understood that it was a permanent order.  The appeal against conviction on the second charge is dismissed.

11.  The Appellant also appeals against the sentences passed by the Magistrate.  He had been fined $1,000 for the gambling charge, and sentenced to 15 months’ imprisonment for the breach of the Deportation Order.  There is nothing excessive, or wrong in principle with the fine nor with a sentence of that length for a breach of a Deportation Order, which is a very serious offence.  The appeal against sentence is dismissed.

12.  For the record I note that in the course of his application today, the Appellant produced a photocopy of the Deportation Order, a letter from the Hong Kong Bar Association and a memorandum from the Hospital Authority confirming the fact that his wife suffers from schizophrenia, such letter being dated 30 April 2003.  He also produced a social investigation report relating to a custody application made for his daughter who is in care of the Po Leung Kuk.  Those documents are of no real relevance to this appeal, and are returned to the Appellant.