HKSAR V Chow Ka Kin and Others

DCCC 1047/2020

[2022] HKDC 1182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1047 OF 2020

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REASONS FOR SENTENCE

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1.The defendants were convicted after trial of 1 count of False Imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221. Particulars of Offence stated that the defendants, on 12 August 2019, together with HUI Ka-lok (“HUI”)  and CHAN Kwok-chung, Michael (“CHAN”)  unlawfully and injuriously imprisoned X and detained him against his will. They were acquitted of another Charge of Blackmail arising from the same incident.

2.This case arose from a debt collecting exercise.  The facts of the case have been set out in full in my Reasons for Verdict.  Very briefly, the victim in this case, X, was alleged by others, including HUI and CHAN who were also named in the Charge, to have incurred a debt of HK$164,700 while onboard a Casino Cruise in the evening of 11 August 2019 under dubious circumstances.  He was made to sign an IOU by CHAN and his HKID Card, mobile phone, bank cards and Home Visit Permit were taken away from him.  He was guarded by HUI overnight on the Cruise.

3.When the Cruise returned to Hong Kong in the morning, X was kept under custody in the Star House Mall in Tsim Sha Tsui by a group of people including CHAN.  Pressure, including threats of physical harm and trouble to his family, was put on him and his mother Y to repay the debt.  Unknown to the culprits, Y had reported the matter to the police at around noon that day.

4.X was later taken from Tsim Sha Tsui to Whampoa.  An application for HK$50,000 personal loan was made to United Asia Finance Co Ltd at around 4:00 pm using X’s mobile phone and identity.  X was repeatedly told that he would only be released if he or his mother had settled the debt. 

5.Later in the evening at about 7:00 pm, X was taken to Kowloon City Plaza where he was being handed over to another group consisted of HUI and the 3 defendants.  This group then took X to a cyber café in Kowloon City area and kept him under guard until about 10:00 pm.  X was again told by this group that he could go after he had settled the debt.  The group then left the café and walked around the streets of Kowloon City, allegedly looking for a place to spend the night, with X being kept in the middle of the group.  They were intercepted by the police officers investigating this case shortly after 10:00 pm.  Upon arrest, the mobile phone, bank card and Home Visit Permit of X were found in the possession of D1.

Background of the defendants and mitigations

6.On behalf of all defendants, Mr Davies indicated that they accepted the contents of the Background and CSO Reports prepared by the Probation Officers with a minor amendment to paragraph 6 of the Report on D3 where “three men” were wrongly included.  With reference to the contents of the Reports, he made further submissions on behalf of each defendant as follows:

D1

7.D1 is now 30 years old, single.  He was born in the mainland on 29 June 1992.  He and his elder sister came to Hong Kong to join their father in 1995 while the mother came in 2000.  His parents divorced in 2012 but continued to live together in their family home, a public housing unit in Shatin.  After completing Form 3 education in 2010, D1 received a further 3 years vocational training in Automotive Technology.  In 2021 he started an ad-hoc business of trading in animation figures, face masks and antigen test packs, with a profit of about HK$10,000 per month.  At the time of the offence he was 28 years old with a clear criminal record.

8.Mitigation letters written by the father and elder sister, stating that D1 was a person with good sense of responsibility and keen to help others, were submitted in support.  Some information indicating that D1 had spent time doing voluntary work for the elderly and was a keen sportsman while at school was also submitted.

D2

9.D2 is 27 years old, born in Hong Kong on 15 April 1995.  He is single and resides with his mother and younger sister at a flat under the Home Ownership Scheme in Tuen Mun.  His father left the family in 2013 due to marital discord but no divorce was pursued.  After completing Form 6 education in 2013 he continued his study in IVE and received a Higher Diploma in Banking and Finance in 2018.  He continued to study in a part-time Diploma Course in Electric Engineering which he is due to complete in 2023, at the same time taking on part-time or casual work.  At the time of the offence he was 24 years old with a clear criminal record.

10.Mitigation letter written by D2 himself and no less than 8 others written by his close relatives, previous employers and school teacher were submitted.  D2 stated that he is extremely remorseful and promised not to re-offend in the future.  The other letters indicated that he was a kind-hearted and responsible person, the present offence was out of his normal character.  Substantial amount of other information, including certifications of him taking part in flag-selling charity work, some dated back to his days in primary school, were also submitted for consideration. 

D3

11.D3 is 27 years old, born in Hong Kong on 26 August 1995.  He is single and resides with his mother in Tuen Mun.  His father had passed away in 2018 and his elder sister is married and residing in Australia.  After completing Form 3 education he continued to receive vocational training for 3 years in Information Technology.  He also completed Form 6 education in 2016 by attending evening school.  He has been working in the field of computer and information technology for over 10 years.  Since 2019, he has been working as a technician in a computer company with a monthly income of HK$15,000.  At the time of the offence, he was also 24 years old with a clear criminal record.

12.Mitigation letters written by D3’s elder sister and girlfriend were submitted.  They stated that D3 was a kind-hearted person who would assist others, especially the elderly, whenever required.  He would not do things which would cause harm to others and the offence was quite out of his normal character.

13.On behalf of all 3 defendants, Mr Davies submitted that they were remorseful.  They now realize the serious consequences of their misconducts and asked the Court to adopt the recommendations by the Probation Officers by imposing CSO on them.

Sentence

14.There is no tariff for the offence of False Imprisonment, each case depends very much on its own facts.  In SJ v Yiu Man Chun[1] , Stock VP stated:

“30. The offence of false imprisonment carries a maximum sentence of 7 years. The type of offence with which we are dealing can occur in a wide variety of circumstances that it will often, though not always, be difficult to come across a previous decision that exactly or even roughly matches the facts under consideration.”

15.There can be little doubt that false imprisonment, under whatever circumstances, is a serious offence warranting immediate custodial sentence.  The defendants were all convicted after trial. 

16.In acquitting the defendants of the Blackmail Charge, I was not satisfied that the defendants were aware of what had been done to X by the other group before X was handed over to them at the Kowloon City Plaza.  I only accepted that at the time of the handover, D1 was informed that a personal loan application had been made in X’s name but the money could only be ready for collection the next day.

17.I am satisfied that the defendants were not the mastermind and were acting under the influence of others, CHAN and HUI in particular, who were much more involved in the scheme of things in trying to extort money from X.  I also accept that at the time they might not realize the serious consequences of joining the plan in detaining X.  Also, so far as they are concerned, there was no evidence to suggest that there was triad element involved.

18.In the light of their relatively young age and clear criminal record, I decided to call for Background and CSO Reports to try to find a valid reason to avoid sending these 3 young men, who were otherwise of good character, to prison. 

19.The Reports were prepared by 3 different Probation Officers.  In the Reports, each of them indicated his remorse.  However, the version of events provided by each of them to the Probation Officers demonstrated that they all still maintained a denial attitude towards the offence, meaning that they have no insight into their misdeed.  The recommendations by the Probation Officers for CSO were based on the versions of facts of the offence provided by them, which were quite contrary to my findings in convicting them of the Charge.

20.I have carefully considered the facts of the case.  The defendants had subjected X to unlawful detention for over 3 hours, guarding him even when he went to the toilet.  They were aware that the plan involved the detention of X against his will until he repaid a debt.  They were looking for a place to spend the night together with X when being intercepted by the police in the streets of Kowloon City, meaning they intended to continue to keep X under their custody for a further while.  D1 was aware that a personal loan application in the name of X to a financial institution had been made.  He even had the personal belongings of X in his custody. 

21.After careful consideration, I am satisfied that the facts of the case were serious, and given the attitude of the defendants, there is no valid reason for me not to impose immediate custodial sentence. 

22.D1 is the oldest among the 3 and was much more involved in the criminal enterprise.  I will adopt a starting point of 18 months for him.  He was of relatively young age at the time of the offence.  I also take into account his previous good character.  For these reasons I will reduce the sentence by 3 months.  D1 is sentenced to 15 months’ imprisonment.

23.For D2 and D3, they are 3 years junior to D1 and both have a clear criminal record.  I accept that they were acting under the bad influence of HUI and D1, and the role they played in the unlawful enterprise was less.  For each of them, I will adopt a starting point of 15 months and reduce it by 3 months for their age and clear record.  D2 and D3 are each sentenced to 12 months’ imprisonment.