R. v. Yiu Shek Che

CACC000313/1995

IN THE COURT OF APPEAL

1995, No. 313
(Criminal)

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Coram : Hon. Litton, V.-P., Mortimer and Ching, JJ.A.

Date of Hearing : 7 March 1996

Date of Judgment : 7th March 1996

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J U D G M E N T

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Ching, J.A. (giving the judgment of the Court) :

1. The applicant was convicted on a late plea of guilty to two charges. The first was one of false imprisonment in that on 10th January, 1995, he and seven other persons had unlawfully and injuriously imprisoned Chiu Kam Shing and detained him against his will on board a Chinese cargo vessel in Hong Kong waters. The second was that on the same day and on the same vessel he robbed Chiu Kam Shing of HK$2,300 in cash, a China re-entry permit and a telephone book. He was sentenced to terms of four and two years imprisonment for these offences, to be served concurrently. He now seeks leave to appeal against those sentences.

2. There had been business dealings in cigarettes between the applicant and Chiu in 1994 and there was a dispute as to how much Chiu owed him. The applicant came to Hong Kong on 3rd January, 1995, as a member of the crew of the vessel involved. He visited Chiu several times and then on the evening of 9th January, 1995, telephoned him asking him to help in the delivery of some cargo to China. The next morning Chiu and an employee of his went to meet the applicant. When they arrived a group of men including the applicant rushed at them from a pier and assaulted Chiu. This was witnessed by the employee and another. The employee fled and called the police. Meanwhile, Chiu was forcibly taken on to the vessel which then cast off from the pier. The applicant told him that he must pay RMB425,000 failing which he would be taken to China. The applicant then took from him the articles specified in the second charge. The vessel was subsequently intercepted by the Marine Police who found Chiu tied up on board. All of these facts were admitted.

3. The Judge below rightly proceeded on the basis of these facts that the sentences should be served concurrently. For the first charge she took as her starting point a term of six years and for the second charge she took a starting point of three years. She took into account the plea of guilty, late as it was, and said in effect that there was little else in mitigation. She accordingly reduced the sentences to the extent already mentioned. Written grounds for this application were put in by counsel previously representing the applicant.

4. The third ground put forward is that the Judge paid no or no sufficient regard to four matters. The first was the personal circumstances of the applicant. She said that nothing had been put forward in this regard that was relevant and in this she was clearly right. The second is the applicant's clear record. It is true that the applicant has a clear record in Hong Kong but the Judge correctly stated that that was really irrelevant since he did not live here. She did, however, give him the benefit of treating him as having a clear record. The third is that the applicant had acted out of desperation. It is not apparent what, if any, evidence there was of this before the Judge. However that may be, the applicant took matters into his own hands and did so violently. Finally, it is said that the victim suffered no physical harm. Even if that were so, he was set upon by a number of men clearly at the instigation of the applicant, he was assaulted and forcibly taken on board the vessel and tied up, the vessel then casting off. As the Judge remarked, it is not clear what was to happen to Mr. Chiu if he did not pay. There is nothing in ground 4 to assist the applicant.

5. Ground 2 of the written grounds complains that the Judge took into account matters none of which were supported by evidence or predominant adverse inference. They were that the applicant had come to Hong Kong for the purposes of collecting the debt by unlawful means, secondly that the origin of the dispute between the applicant and Chiu was probably unlawful and that the sentence imposed should include an element of deterrence so as to discourage "so-called businessmen from operating from China in a similar manner". There is nothing in the documents before this Court which indicates what evidence was given before the Judge below. In the agreed facts it is stated that,

"On 3/1/95, D1-D8 came to Hong Kong by a Chinese cargo vessel and were allowed to stay until 20/1/95 by virtue of their seaman cards. D1-D7 were seamen employed on the said vessel. D8 came to H.K. with a genuine seaman permit then."

D8 was the applicant and clearly a distinction was being drawn between him and the others. If he was not a regular seaman it was, especially in view of what happened, an irresistible inference that he had come to Hong Kong to collect the debt. If he was a regular seaman it is nothing short of remarkable that he was able to enter into a business transaction, concerning cigarettes, to the extent that Chiu was alleged to owe him RMB425,000. So far as the Reasons for Sentence record, his counsel was only able to say that his ignorance of Hong Kong law led him to think that he was entitled to pursue the debt in the manner that he did. Having regard to the circumstances, the Judge was quite right to include an element of deterrence in the sentence whether the applicant was a genuine businessman, a so-called businessman, from China or elsewhere. The applicant simply had no justification for taking law into his own hands.

6. The first of the written grounds in the application is that the sentence was manifestly excessive or wrong in principle while the fourth complains that the starting point of six years imprisonment was too high. In the circumstances of the case we cannot accede to either of these two complaints. The applicant was fortunate not to have received a heavier sentence or to have faced far more serious charges. Before us the applicant put various matters. There was a medical certificate with reference to an alleged assault upon him by the police, a promissory note said to have been signed by Chiu and other personal documents. None of these are relevant to the application. The applicant claims that he pleaded guilty to avoid the other crew members being held in custody and to avoid the vessel incurring further expenses. However that may be, he did plead guilty and the argument he now advances demonstrates graphically that he feels not a bit of remorse. In the circumstances the application is refused.

Representation:

Applicant in person

Mr. Jackson Poon, S.C.C. (Crown Prosecutor) for Crown/Respondent