IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA
Criminal Action No: 53/12

THE STATE

V

JIN LIN HUANG
GUOTEN HUANG
HUANG YONG DONG

Prosecution :  Mr. Mohammed Yunus, Assistant Superintendent of Police.
[DPO Southern]

Accused : Mr. O'Driscoll G.

SENTENCE

1.	Jin Lin Huang, Guoten Huang and Huang Yong Dong along with 13 others were charged before this Court on a count of Gaming without a Licence contrary to section 9(1) and 42(2) of the Gaming Decree No 34 of 2009. The three accused persons stood in the positions of 13, 14 and 15 during the proceedings of this case.

2.	Initially on 22.05.2012 the three accused persons pleaded 'Not Guilty' to the charge. However Mr. O'Driscoll by his notice of motion dated 08.11.2012 informed Court that the 13th, 14th and 15th accused have decided to change their early plea.

3.	The facts agreed indicate that this offence was committed on 30th July 2011 at the Angel Club in Victoria Parade, Suva. The police investigators have searched the premises on the information they gathered. The information was on gambling without licence. When the search carried out, the aforementioned three suspects found inside engaged in gambling. The prosecution submits that the police have found blocking and jamming devices from the place. Items which are commonly used to interrupt mobile communication. These circumstances direct the Court to conclude on the preparation of the place to facilitate the ongoing illegal activity. 

4.	Section 42(1) of the Gaming Decree 2009 gives powers to the police to search any place if there is good reason to believe that the place is kept or used for the purpose of conducting therein any gaming activity which is illegal under the Decree. 

5.	It further states that the officers have power to search all persons found therein, and to seize all implements or appliances for use in gaming and all money, securities for money and other articles reasonably supposed to have been used or intended to be used in or for any illegal gaming activity which may be found therein or on such persons and to detain any such person until searched.

6.	The penal section of this instance is 42(2). It states,

s.42(2) -Any person who in the course of a search of premises authorised and conducted in accordance with subsection (1) is found in possession of any implement, appliance or other article for use in illegal gaming shall be guilty of an offence and shall be liable on conviction to a fine of $10,000 and imprisonment for 5 years.

7.	The Gaming Decree 2009 interprets the term 'Gaming' as the playing of a game of chance for money or money's worth, including –

(a) a lottery;
(b) remote interactive gaming,

but does not include, unless otherwise provided by regulations, the playing of a game which depends merely on skill, any race, match or competition which consists exclusively or mainly in a contest or trial of one or more of the following, or any combination of them, namely skill, knowledge, memory, speed endurance, strength or otherwise, or any similar trial, contest or competition, whether involving people or other animate creatures, or both, and whether or not inanimate aids are adopted, or any game exempted by the Minister, absolutely or conditionally, from the provisions of this Decree by order in the Gazette.

8.	Section 9(1) of the Decree states 'It shall not be lawful to carry on any gaming activity in Fiji, other than one which is exempt by virtue of paragraph (a) or (b) of section 4, except under the authority of a licence granted under this Part'.

9.	"Implements or appliances for gaming" include all articles which are used in, or for the purpose of gaming. It is clear, the reason for this broad interpretation; the statute wanted to restrict any form of gaming activity which spills out from its regulations. 

10.	Prosecution states that Jin Lin Huang, Guoten Huang and Huang Yong Dong made formal admissions to the alleged offence. Therefore this Court convicts each accused person for engaging in gaming without a licence.

11.	The section states that an offender who is convicted by the Court shall be liable to a fine of $10,000 and imprisonment for 5 years. The statute therefore requests the Court to impose both fine and an imprisonment period. However there is no minimum mandatory sentence which would impose on the offenders. 

12.	The Court notes that there are no guideline judgments under the new Gaming Decree 2009. Having considered the circumstances of the offence I select 6 months as the starting point for each accused person's sentence.

13.	Use of blocking and jamming devices would undoubtedly aggravate the offence. One could argue that it is unfair to apply as an aggravating circumstance in the absence of evidence to the fact that it was used by a single accused. The view of this Court is that it can be applied on each accused as they performed the illegal activity knowing that they are covered from any dripping out information to the law enforcement authorities. Thus each sentence is increased by 3 months and now stands at 9 months. 

14.	Personal circumstances of each accused are as follows,

•	Jin Lin Huang	- 28 years old, on a work permit in Fiji, supporting his family in China, first offender, remorseful.

•	Guoten Huang	- 38 years old, first offender, on a work permit, looking after the family in China, at the time of the arrest he possessed FJ $ 80 and HK $ 30, remorseful and suffering from a renal medical condition.

•	Huang Yong Dong	- 30 years old, first offender, on a tourist visa, was in possession of FJ $ 104 at the arrest, remorseful. 

15.	The three accused persons are entitled for a concession of one third from their sentence for the early plea to save Court's time and resources. Thus each sentence will be reduced to 6 months.

16.	 Further 3 months deducted for the personal circumstances of each accused. Now the final sentence stands at 3 months.

17.	 It was submitted that all three accused persons are first offenders. Hence the Court has an obligation to render another opportunity to them which would grant time to realise the offence and to rehabilitate. Therefore the Court decides to suspend the final sentence of each accused for a period of 12 months.

18.	 Any subsequent find of guilt within the operative period of 12 months will amount to a breach of suspended sentence, and the offender is liable to be prosecuted for a separate offence under the Sentencing and Penalties Decree 2009.

19.	Further each accused should pay a fine of $ 300 (three hundred dollars). In default 30 days of imprisonment. 

20.	Currencies which were found from the possession of each accused are forfeited to the State. This order is made in accordance with section 42(3) of the Decree.

21.	Twenty eight days to appeal.

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

03rd December 2012