HKSAR v. So Tang-fat and Another

CACC000183/1997

IN THE COURT OF APPEAL

1997 No. 183

(Criminal)

____________

____________

Coram: The Hon Power, V-P, Stuart-Moore, J and V. Bokhary, J in Court

Date of hearing: 7 November 1997

Date of judgment: 7 November 1997

_______________

J U D G M E N T

_______________

V. Bokhary J (giving the judgment of the Court):

1. There are two Applicants in this case. They were tried before Deputy Judge Wright in the District Court. The 1st Applicant, So Tang-fat was the 3rd accused at the trial. He was charged with a single offence of false imprisonment contrary to Common Law; and on 24th February 1997, he was convicted after trial of that single offence. Reports were called for; and on 17th March 1997, he was sentenced to 2 years' imprisonment. Having earlier abandoned his application for leave to appeal against his conviction, he now seeks leave to appeal only against his sentence.

2. The 2nd Applicant, Wong Ah-lun was the 4th accused. He was charged with two offences, namely false imprisonment contrary to Common Law and assault occasioning actual bodily harm contrary to Common Law and punishable under section 39 of the Offences Against Persons Ordinance, Cap. 212. He was convicted on 24th February 1997 of those two offences after trial. Reports were also called for; and on 17th March 1997, he was sentenced to 18 months' imprisonment for the false imprisonment offence and a concurrent 3-month term for the assault occasioning actual bodily harm offence. He now seeks leave to appeal against his two convictions.

3. Briefly, the case involved a victim named Cheung Wai-kwong who was indebted to one of the co-accused, the 5th accused, who alone was charged with and convicted of lending money to Cheung at an excessive interest rate. In order to force repayment of the debt, the 5th accused and others, including the 1st and 2nd Applicants, confined Cheung for approximately 40 hours. During this time Cheung attempted to find persons who could repay the debt on his behalf. During the period of his confinement, Cheung was assaulted; and the 2nd Applicant was a party to a joint enterprise to assault him.

4. In passing sentence in respect of the false imprisonment charge, the learned Judge said this:

"As it is the one offence common to all Accused, I would observe at the outset that there is ample authority that the offence of false imprisonment, particularly where it relates, as does this, to recovery of money loaned at an excessive rate of interest, carries an immediate custodial sentence. In this matter, I would take as my starting point a period of 30 months imprisonment, lower than in many other matters due to the nature of the events."

5. As can be seen from the 1st Applicant's full grounds of appeal against sentence, his main ground of appeal is that the 2 years' imprisonment imposed by the learned Judge is too heavy in the light of (i) his minor involvement and role in the case and the fact that he used neither violence nor intimidating expressions on Cheung, and (ii) the recommendation that he be sentenced to be detained in a detention centre was not considered by the learned Judge.

6. Clearly the learned Judge was fully aware of and must have taken into account the 1st Applicant's role and what he did and did not do. Also, in sentencing the 1st Applicant the learned Judge said this:

"The Third Accused has been found suitable for admission to Detention Centre. I am aware that I have to have regard to the rehabilitative aspect of any sentence. However, I also have to have regard to the principle of disparity of sentence: in this case to impose a Detention Centre order on one of the accused would offend against that principle. More to the point it would, in any event, inadequately reflect the gravity of the offence. Again he is entitled to a reduction in the sentence as a result of his reduced role. The Third Accused is similarly to serve 24 months imprisonment."

7. It is therefore quite clear that all those matters had been fully considered by the learned Judge when he passed the sentence he did. The sentence of 2 years' imprisonment is a severe one, but rightly so for this case involves loan-sharking. As to that, the learned Judge rightly had regard to the decision of this Court in R. v. Lui Sau Cheong, C.A. No. 95 of 1993, 28th October 1993 in it was said at page 3C-H:

"Such operations are unfortunately all too frequent nowadays. In case after case coming before the criminal courts, one sees a procession of offenders to a large extent driven to their offences - whether involving dangerous drugs, forgery, fraud, theft, robbery, burglary or any other number of offences - to escape the clutches of loan sharks with whom they had the misfortune to deal. The courts have in recent years seen enough of the evils and ills of loan-sharking to become fixed with a duty to combat the same by penalties heavier than those generally imposed in the past."

8. In our judgment, the 1st Applicant's sentence is neither wrong in principle nor manifestly excessive. There is no reason to interfere with it. Accordingly, his application for leave to appeal against sentence is dismissed.

9. I now turn to deal with the 2nd Applicant's application for leave to appeal against his convictions.

10. His grounds of appeal read:

"1. The Honourable Judge did not have an in-depth understanding of the case before making decision.

2. During the trial in District Court, the evidence of the witness(es) showed that I did not have any physical contact nor conversation with the victim.

3. Before this incident happened, I did not know that my friend made such an arrangement and he/she just called me out. As usual, I simply went for fun, but why would I become one of the defendants in such case? I speak the truth and it's the same as what had actually happened. I hope the Honourable Judge would give a fair judgement to me."

11. We do not consider those criticisms to be justified. The learned Judge having carefully considered the evidence before him, including the cautioned statement made by the 2nd Applicant, said this:

"Even if it be that the Fourth Accused was unaware, as improbable as it may seem, of what was going on when he got to Cha Kwo Ling, it seems to me that there cannot have been any room for ignorance on his part after the first assault on PW1 there. There is no evidence before me that he, the Fourth Accused, was in any way unable to leave at that stage. I also accept the evidence of PW1 that, after assaulting him in and outside of the Sixth Accused's residence, the Fifth and Sixth Accused had suggested beating him at a hillside in Lam Tsuen: he was taken there - implicitly, for that purpose - and "all the others went too" including the Fourth Accused: when the party arrived there he was assaulted, again, by the First Accused in their presence.

I am satisfied that the only inference I am able to draw is that the Fourth Accused adopted the joint venture as his own from, at the very least, the time of the events at Cha Kwo Ling."

12. There was ample evidence for the learned Judge to be so satisfied and to convict the 2nd Applicant of the two offences as a party to a joint enterprise.

13. In the result, the 2nd Applicant's application for leave to appeal against his convictions is also dismissed.

Representation:

Mr Michael C, Blanchflower (D.P.P.) for the Respondent.

Applicants in person.