R. v. Wong Wing Kit & Other

HCMA001012/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1012 OF 1995

___________

___________

Coram: Hon Duffy, J. in Court

Date of hearing: 8 December 1995

Date of handing down judgment: 13 December 1995

_______________

J U D G M E N T

_______________

1. This was an appeal against sentence by the 1st appellant, and against conviction and sentence by the 2nd appellant. Both were found guilty after trial of false imprisonment and criminal intimidation, and were sentenced to 18 months' imprisonment in relation to the first offence and 8 months on the second offence. The sentences were ordered to be served concurrently.

2. The facts were that the principal witness in the case for the prosecution, a serving officer of the Correctional Services Department had lost all of his money while gambling in Macau, and had fallen into the hands of a loanshark. The loanshark lent him some money which was also lost. The loanshark arranged for the witness to be accompanied to Hong Kong, and on his return he was taken to a restaurant where he met the appellants. There he claimed that the 1st appellant, in the presence and hearing of the 2nd appellant, threatened to chop his family unless a total sum of $36,000 was paid in respect of the earlier loan of $20,000.

3. Subsequently, the witness went with the appellants to his home, to find his family members to assist him to raise the cash demanded. There was no one at home and they waited downstairs in a park for someone to arrive at the witness' home. During this period, the witness was able to make a telephone call to a friend who called the police and the appellants were arrested.

4. There was no evidence of any violence having been used, or indeed any loud or threatening language.

5. The 2nd appellant did not give evidence, and as I explained to him on his appeal, that left the learned Magistrate with no alternative but to convict him, as the evidence clearly suggested that, while he said nothing and was not involved in any violence against the person of the victim, nevertheless, his presence at the scene and his obvious complicity with the 1st appellant throughout made it inevitable that the inference would be drawn that he was also criminally involved.

6. So far as the sentence was concerned, I felt that the learned Magistrate was quite correct when at the end of the trial, he described the offences as being at the "lower end of criminality for these kind of offences". He also stated that he took into account the appellants' ages and their clear records, and regarded two years as an appropriate starting point. I felt this was excessive. The fact that there was no violence used in this case, and that the whole affair appeared to have been low-key, is a significant factor to be taken into account. That, together with the fact that the appellants both had clear records, persuaded me that a proper starting point should be 15 months, and the sentences should be reduced in accordance with the Magistrate's reasons to 9 months for the first charge, and 6 months for the second charge, the sentences to be served concurrently. The appeals against sentences were allowed accordingly.

Representation:

Mr William Lam, APCC & Mr Isaac Tam, C.C., for the Crown

Appellants (Wong Wing Kit & Ko Che Han) in person