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Hksar v Lam Hing Wan

Judgment Cited in 1 Precedent Map Related
Vincent
Judgment Date01 August 2018
Neutral Citation[2018] HKCA 456
Year2018
Judgement NumberCACC387/2016
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC387/2016 HKSAR v. LAM HING WAN

CACC 387/2016

[2018] HKCA 456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 387 OF 2016

(ON APPEAL FROM DCCC 378/2014)

------------------------

BETWEEN
HKSAR Respondent

and
LAM HING WAN (林慶雲) Applicant

------------------------

Before: Hon McWalters JA in Court
Date of Hearing: 20 July 2018
Date of Judgment: 20 July 2018
Date of Reasons for Judgment: 1 August 2018

_______________________________

REASONS FOR JUDGMENT

_______________________________

1. On 17 January 2013 police raided the cockloft of Shop 2 at 2‑8A Yi Pei Square, Tsuen Wan. After searching the premises they arrested a total of 20 people including the applicant. 13 of the persons were observed to be playing mah-jong at electronic mah-jong tables. Subsequently the applicant was charged with operating a gambling establishment, contrary to section 5 of the Gambling Ordinance, Cap 148. He pleaded guilty to this offence and was fined $15,000 and sentenced to 3 months’ imprisonment with the sentence being ordered to be suspended for a period of 36 months.

2. He was subsequently prosecuted for three offences of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455. The first of the three charges alleged that he dealt with HK$27,000 cash, RMB 14,300 cash and the number of watches and pieces of jewelleries on the day of the police raid, ie 17 January 2013.

3. The second charge related to a period of about 3 years 4 months between 1 October 2009 and 17 January 2013 and involved dealings by the applicant with a total sum of $15,453,626.26 in an HSBC bank account. The final charge related to the period of about 1 year 4 months between 3 September 2011 and 17 January 2013 and involved dealings in a total sum of $4,773,353.60 in respect of a different HSBC bank account.

4. The applicant pleaded not guilty to these charges and was tried in the District Court before Deputy District Judge Bina Chainrai (“the judge”). On 15 November 2016 the judge acquitted the applicant of the first charge but convicted him of the second and third charges. On 1 December 2016 the judge sentenced the applicant to a total period of 5 years and 11 months’ imprisonment.

5. The applicant subsequently applied for leave to appeal both his conviction and sentence but on 1 February 2018 he filed a Notice of Abandonment in respect of his application for leave to appeal against conviction.

6. At the hearing of the application for leave to appeal against sentence I allowed it but only for the purpose of arguing the third ground of appeal. These are my reasons for doing so.

The judge’s Reasons for Verdict

7. As the application for leave to appeal against conviction has been abandoned I shall focus on the findings of the judge as set out in her Reasons for Verdict. It was the prosecution case that the properties in the three charges related to the applicant’s operation on an unlicensed gambling establishment that took the form of an illegal mah-jong parlour.

8. The applicant gave evidence and denied that the properties were derived from an illegal gambling business. His exculpatory explanations for how the monies in the bank accounts were derived were rejected by the judge who said:

“ 70. … I did not believe D1. I rejected his testimony that he had a sub-contracting business from the 1990’s to 2013 and that he had winnings at gambling and made loans to friends that were repaid. …

71. I was satisfied beyond all reasonable doubt that D1 was operating an unlicensed gambling establishment at the cockloft at Shop No. 2, No. 2-8A, Yi Pei Square, Tsuen Wan and he took commissions from other people’s winnings on 17 January, 2013 when the police raided the premises. I was also satisfied beyond all reasonable doubt that D1 had operated an unlicensed gambling establishment during the relevant periods set out in the particulars of Counts 2 and 3 and he took commissions from other people’s winnings.”

9. In respect of the first charge it was the prosecution case that the items of jewelleries and watches were used as security by gamblers at the mah‑jong establishment to enable them to borrow money from the applicant. The judge said that she was unable to draw this inference on the evidence adduced before her and so she acquitted the applicant of the first charge.

10. In respect of the second and third charges she noted that the applicant had himself admitted that he had been paid commissions from other people’s winnings at the gambling establishment and of this she said:

“ 73. … It must be an irresistable inference that in operating the gambling establishment, he had made profits and in the process some of the monies that was being moved or distributed or dealt with by D1 through his two HSBC bank accounts were the profits and therefore the proceeds of an indictable offence. …”

The mitigation

11. Mr Wu, who appeared for the applicant at trial, referred to the applicant’s sentence in the magistracy in October 2013 for operating an illegal gambling establishment. After explaining to the judge that he did not represent the applicant in his magistracy case, Mr Wu said:

“ … I have no first-hand information as to why despite his past conviction record he received, in my humble view, a rather lenient sentence by getting a suspended sentence. But from the material before me, I could only infer that because again the magistracy did not have the benefit of reading all the documents concerning his bank record, things like that, he was sentenced on the basis that the scale of the establishment was not particularly large perhaps and, secondly, not much money at stake was involved in that case in the Magistrate Court.”

12. Mr Wu then went on to urge the judge not to consider the entire sum that went through the two bank accounts as being the proceeds of the applicant’s illegal gambling operation but he did not suggest what sum the judge should use or how she should calculate it.

13. The applicant had a criminal record dating back to 1974 which included triad and triad related offences and possession of dangerous drug offences. The applicant was also suffering from a number of medical conditions. To learn more about the applicant the judge ordered a Probation Officer’s Background Report. It contained the following unfavourable portrayal of the applicant:

“ 3. The Accused could hardly remember his past criminal record. Criminal record summary showed that the Accused had 11 previous convictions relating to violence, against properties, triad activity and illicit drugs from 1974. He took a denial attitude towards the drug-related offences. He demonstrated little reflection towards his past law transgressions.

4. The Accused denied his offence in the present enquiry. He alleged D2 and D3 were his close friends. The Accused alleged to rent the material place from a friend at a monthly rental of $12,000 one year and three months ago. He planned to let his friends working in construction sites to play mahjong and he would receive service charges. D2 assisted in preparing food for the customers and received...

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1 cases
  • Hksar v Lam Hing Wan
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 14 November 2018
    ...circumstances of the case the total sentence of 5 years and 11 months’ imprisonment was manifestly excessive. See HKSAR v Lam Hing Wan [2018] HKCA 456. The case 4. The appellant was one of three defendants who stood trial, variously charged with offences of dealing in the proceeds of crime.......

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