HKSAR v. KUNG WAI TAT
- Citation
- HKSAR v. KUNG WAI TAT
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 20 March 2007
- Posture
- Criminal Sentencing Appeal / High Court Appeal Against Sentence (deputy High Court Judge)
- Case number
- HCMA1055/2006
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 20 March 2007
- Posture
- Criminal Sentencing Appeal / High Court Appeal Against Sentence (deputy High Court Judge)
- Case number
- HCMA1055/2006
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Immediate custodial sentence was not warranted for operating unlawful street gambling in the present circumstances; the Magistrate erred in applying guidance from a case about gambling establishments with a higher statutory maximum; appeal allowed and custody quashed, substituted by a fine of $5,000 given prior convictions and plea.
Court disposition
Appeal allowed; sentence quashed and substituted with a fine
Orders
- Allow appeal against sentence
- Quash sentence of 2 weeks imprisonment
- Substitute sentence with a fine of $5,000 payable; fine may be applied from bail money
02
Material facts
Parties
The Government
Respondent Counsel: Ms Ada Chan, Senior Government Counsel (Ag)Amounts and remedies
- Commission Taken Per Round: $ 40
- Commission Money on Person: $ 360
- Original Custodial Sentence (weeks): weeks 2
- Fine Substituted: $ 5,000
03
Procedural history
Posture
Criminal Sentencing Appeal / High Court Appeal Against Sentence (deputy High Court Judge)
04
Questions and positions
Legal issues
- 01
Whether immediate custodial sentence was appropriate for operating unlawful street gambling under section 13(1) of the Gambling Ordinance
- 02
Applicability of sentencing guidance from Tsang Ling-yim (MA1022/99) which concerned gambling establishments
- 03
Proper quantum of penalty given guilty plea and prior convictions
- 04
Whether the Magistrate erred in substituting custody rather than a fine
Party arguments
- Applicant
- Appellant pleaded guilty, operated a small street game with modest commission, had only prior gambling convictions of similar minor nature; immediate custodial sentence was excessive and not consistent with prior practice for such offences; Tsang Ling-yim concerned a gambling establishment with a higher maximum and is inapplicable.
- Respondent
- Respondent relied on sentencing guidance in Tsang Ling-yim that in all but minor cases immediate custody should be considered and submitted that previous convictions justified a more severe penalty, supporting the Magistrate's custodial approach.
05
Court’s reasoning
Legal principles
- 01
Common law; sentencing principles
Sentences must be proportionate to the offence and offender's circumstances
- 02
Common law
Guilty plea attracts mitigation in sentence
- 03
Common law
Previous convictions are relevant to increased severity of sentence
- 04
Gambling Ordinance s13(1); Tsang Ling-yim MA1022/99
Different statutory maxima and offence context (street gambling v gambling establishment) affect sentencing approach
06
Ratio, limits and disposition
Ratio decidendi
Immediate custodial sentence was not warranted for operating unlawful street gambling in the present circumstances; the Magistrate erred in applying guidance from a case about gambling establishments with a higher statutory maximum; appeal allowed and custody quashed, substituted by a fine of $5,000 given prior convictions and plea.
Obiter and limits
- From magistrates' practice an immediate custodial sentence would not normally be expected for such street gambling offences.
- Tsang Ling-yim guidance relates to gambling establishments (7 year maximum) and is not directly applicable to street gambling (2 year maximum).
- Typical fines: $3,000 for a guilty plea with no prior convictions; $5,000 where there are previous gambling convictions.
Court disposition
Appeal allowed; sentence quashed and substituted with a fine
- Allow appeal against sentence
- Quash sentence of 2 weeks imprisonment
- Substitute sentence with a fine of $5,000 payable; fine may be applied from bail money
Source and reliance status
Court of First Instance · 20 March 2007
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 20 March 2007
bjbj 1) Appellant _____ Coram: Deputy High Court Judge Line in Court Dates of Hearing: 20 March 2007 Date of Judgment: 20 March 2007 ____
J U D G M E N T ____ 1. This is an appeal against a sentence of 2 weeks imprisonment, which was imposed upon the Appellant for operating unlawful gambling in a street, contrary to section 13(1) of the Gambling Ordinance. He was operating a game of pai ka in a small public park near a market where the players were mostly, what one might describe as, old boys, a substantial number of them being pensioners.
2. He had pleaded guilty. The commission he took was $40 a round and he had $360 worth of commission money upon him. He had no previous convictions for anything other than straightforward gambling and all of those were for gambling in places not being a gambling establishment.
3. From my recollection of dealing with such cases when I was a Magistrate, one would not expect an immediate custodial sentence in those circumstances. I inquired today in court whether my recollection is either faulty or has been overtaken by subsequent events, and nothing has emerged to make me think otherwise.
4. The Magistrate mentioned in his reasons for sentence that he sought guidance from the case of Tsang Ling-yim MA1022/99 because that case said that in all but minor cases an immediate custodial sentence should be considered. However, that was a case concerning a gambling establishment. That has a 7 year maximum, whereas the offence of operating gambling in the street has a maximum of only 2 years.
5. In the circumstances, therefore, I shall allow this appeal against sentence and impose a fine.
6. I am told, and I have no reason to doubt, that the going rate, with no previous convictions for such an offence on a plea of guilty, is a fine of $3,000 but with the previous convictions it would rise to $5,000, even if the previous convictions are only for gambling, as in this case. Accordingly, I shall quash the sentence of 2 weeks imprisonment and substitute a fine of $5,000. That can at his counsel s invitation come from his bail money. (P Line) Deputy High Court Judge Ms Ada Chan, Senior Government Counsel (Ag), of the Department of Justice, for the Respondent Mr Alex Ng, instructed by Messrs Littlewoods, for the Appellant
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