HKSAR v. Li Ying Pan

DCCC 706/2021 &
DCCC 417/2022
(Consolidated)

[2023] HKDC 50

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 706 OF 2021 AND 417 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Charges

1.D3 is charged with one count of false imprisonment, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221 (“Charge 3”)  and one count of failure to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221 (“Charge 7”).

Summary of Facts

Charge 3

2.D3, along with other persons, between 15 and 16 September 2020 at Room No 307, IND Hotel, No 326 Kwun Tong Road, Kwun Tong, Kowloon, in Hong Kong, unlawfully and injuriously imprisoned X and detained him against his will.  The background is that X and Y were blackmailed, and X was later taken to the hotel room in question.  It has been accepted by the parties that D3 had no knowledge of the circumstances prior to his arrival at the hotel room.  X had also already been detained therein at the time.

3.D3’s involvement in this case was to merely keep watch over X.  He used the expression “riding a dragon” in his VRI.  D3 asked PW1 to reveal the password of his phone, and D3 admitted that he grabbed PW1 by his clothes and demanded him to cooperate by shouting at him.

4.On 16 September 2020, X escaped when D3 and one other defendant fell asleep.  D3 was arrested later on the same day.  Under caution, he stated that he was offered $500 to guard X.  D3’s WhatsApp record shows that a “boss” told D3 to treat X better and to only detain X in the room.  The “boss” also reminded him not to use any violence and that more money would be given to him later.

5.D3 was remanded in custody from 16^th September 2020 to 21^st December 2021, when he was released on court bail.  In that time, he was serving a sentence in the Detention Centre from 24 June 2021 to 23 December 2021 for an offence of criminal damage.  On 10 February 2022, when the case concerning the subject charge of false imprisonment was adjourned to 14 April 2022, D3 was put on bail.

Charge 7

6.D3 failed to attend District Court as scheduled on 14 April 2022. A bench warrant was issued.  On 20 June 2022, D3 was arrested by a Customs Officer for another offence, and D3 has since then been remanded in custody.

Mitigation and submissions

7.D3’s counsel submitted that D3’s only involvement was the false imprisonment and he had no knowledge of the prior circumstances. X was kept in the hotel room in question for about 13 hours.  D3 also cooperated with the police.

8.It was explained by D3’s counsel that what happened was that on 7 April 2022, D3 went to Cheung Chau and missed a scheduled ferry back to HK Island. As a result of which, he was not able to reach home before 10pm.  Since D3 was still under CSD supervision after his release from the Detention Center, he was afraid that he would be detained by CSD officer in relation to his breach of the Court curfew imposed.  D3 therefore even did not report to the Police Station on the next day, as required under his bail conditions.  For the same reason, he did not attend court on the 14 April.  He was later arrested on 20 June 2022, when he was intercepted by a Customs Officer in Sai Kung.  He has been remanded in custody since then.

D. Background of D3

9.D3 was born in Hong Kong.  He was aged 16 at the time of the offence, and is now aged 18 years-old and 11 months.  His father is aged 50 and his mother is aged 40.  He has an elder sister aged 20 and a younger stepsister aged 5.

10.Before his present remand, he was a part-time waiter earning about $6,000 and became unemployed since early June 2022.

E. Discussion

Charge 3

11.There is no tariff for the charge of false imprisonment.  D3’s Counsel also refers to Secretary for Justice v Yiu Man Chun[1]. There, the Court of Appeal considered that false imprisonment can occur in such a wide variety of circumstances, and that it will often (though not always)  be difficult to come across a previous decision that exactly or even roughly matches the facts of a case under consideration.

12.What is important is that all relevant circumstances are taken into account.

13.In HKSAR v Law Ka Wai[2] (transliteration), His Honour Judge Lee considered that false imprisonment could be divided into 3 different situations: (1)  situations involving triads, (2)  situations involving loan sharks and (3)  situations involving personal/relational disputes.

Charge 7

14.Similarly, there are no sentencing guidelines in respect of Charge 7 and it all depends on the relevant circumstances.

15.For example, see: HKSAR v Shum Shiu Fung[3] (transliteration)  and HKSAR v Cheung Man Kit[4] (transliteration), where 6 months’ imprisonment as starting point was adopted.

The present case

16.Under s 109A(1), Cap.221, no court shall sentence a person of or over 16 and under 21 years of age to imprisonment (D3 is such a person), unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate, the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

17.Therefore, I have on the last occasion called for suitability reports in respect of Probation Order, Detention Centres and Training Centres, pending which D3 was remanded.

18.In accordance with the reports, in summary, D3 did not have adequate parental supervision when he was young, hence he turned wayward and rebellious at his early teenage.  Worse still, after his release from Detention Centre, he was on bail but he did not treasure the opportunity and committed Charge 7 and was arrested by a Customs Officer in June 2022.  The Probation Officer opined that D3 had relapsed to his former way of carefree life and breached the curfew requirement in early 2022 during the aftercare supervision.  He was found to be defensive belittling his responsibilities for his wrongdoings, genuine motivation to make positive changes was in doubt.  D3 was not recommended for probation supervision.

19.According to the suitability reports for Detention Centre and Training Centre, similar opinion was uttered.  D3 was opined to be an “immature youngster who was at risk highly susceptible to detrimental influence of his delinquent associates”.  It was found that after his discharge from the Detention Centre in December 2021, D3 re-associated his dubious peers.  As a result of the arrest in June 2022, D3 was recalled to Detention Centre from 22 June to 29 August 2022.  Above all, D3 was considered not suitable for detention in a Detention Centre as the program would not benefit him further; instead, he was considered suitable for detention in a Training Centre for there be a program of comprehensive disciplinary training and a longer period of statutory supervision.

20.In view of the opinions and recommendations enunciated in these reports, it was submitted on D3’s behalf that, quite fairly, the recommendations made in these reports could hardly be resisted.

Sentence

21.Having considered the facts of the case, the role played by D3 in respect of Charge 3, the legal authorities as mentioned, the mitigation advanced; the time D3 has spent in custody, and the contents of the reports, I am of the view that a detention in a Training Centre would carry sufficient deterrent and rehabilitative effect, which would be beneficial to D3.

22.Therefore, D3 is ordered to be subject to detention in a Training Centre for both Charge 3 and Charge 7 (concurrently).