The Queen v. Tsui Yun Chak and Others
Read the full judgment text of CACC 333/1991 on BabelCite. This Court of Appeal judgment was delivered on 15 October 1991 before Sir T.L. Yang, CJ, Silke, V-P and Power, JA.
Criminal law – sentencing – false imprisonment – assault occasioning actual bodily harm – criminal damage – criminal intimidation – debt extraction by violence – whether failure to deliver Reasons for Verdict and Sentence at time of verdict renders verdict a nullity – District Court Ordinance s.80 – whether absence of reasons at time of sentencing warrants interference with sentence – whether sentence of two years' imprisonment excessive – Court of Appeal – leave to appeal against conviction and sentence. The three appellants were convicted after trial in the District Court of offences arising from a single incident on 30 July 1990 in which they attempted to extract repayment of a debt owed by Mr Lam Hung Wang to a vegetable wholesaling firm run by the 1st appellant's brother. Mr Lam had been lent $100,000 at 84% interest p.a. to help reduce his original debt of about $165,000. The appellants met Mr Lam in a restaurant, assaulted him, forced him into a car, and took him to the Cheung Sha Wan Wholesale Vegetable Market where he was held and threatened with death. He was then taken to his wife's flat where further assaults occurred on Mr Lam, his wife, and his sister-in-law, and the telephone was damaged. The 1st appellant was convicted of one charge of false imprisonment, two charges of assault occasioning actual bodily harm, two charges of criminal damage and two charges of criminal intimidation. The 2nd appellant was convicted of one charge of false imprisonment, one charge of assault occasioning actual bodily harm and three charges of criminal intimidation. The 3rd appellant was convicted of the false imprisonment charge, one charge of assault occasioning actual bodily harm and two charges of criminal intimidation. Each was sentenced to a total of two years' imprisonment, with the two years imposed on the false imprisonment charge and other sentences concurrent. The hearing ended on 21 June 1991, verdict was pronounced, and Reasons were recorded on 12 July 1991. The appellants sought leave to appeal against both conviction and sentence. At the hearing before the Court of Appeal, counsel abandoned the application in respect of conviction. On the question whether the trial judge's failure to deliver Reasons for Verdict and/or Sentence at the time of verdict or as soon thereafter as may be, as required by s.80 of the District Court Ordinance, rendered the verdict a nullity, the Court endorsed the better practice stated in The Queen v Tam Wing Hung [1988] 2 HKLR 44 that reasons should be given at the time of verdict, but did not treat the delayed delivery as rendering the verdict a nullity. On the question whether the absence of Reasons for Sentence at the time of sentencing is sufficient ground for appellate interference with a proper sentence, the Court held that while it is preferable that reasons be given at the time, the absence of reasons at the time, by itself, is not sufficient ground for interference with a proper sentence. On the question whether the sentence of two years' imprisonment was excessive, the Court distinguished the unreported decision in Queen v Chan Ping Leung and Another Cr app 336 of 1987 on the basis that the present case was not an attempt to resolve a dispute but a direct, planned attempt at enforcement. The Court held that those owed money in Hong Kong cannot be permitted with impunity to act in this manner, and that the mitigating circumstances were outweighed by the severity of the assaults, the fear induced in the victim, and the threats made. The Court found no warrant for interference and did not consider a suspended sentence appropriate. Application for leave to appeal against conviction dismissed; application for leave to appeal against sentence refused.
Legal issues: Compliance with s.80 District Court Ordinance and effect on verdict · Whether absence of reasons at time of sentencing warrants interference with sentence · Whether the sentence of two years' imprisonment was excessive
Outcome: Application for leave to appeal against conviction dismissed (abandoned at hearing); application for leave to appeal against sentence refused.
Cited by 9 cases · Cites 1 case
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CACC000333/1991 Headnote Comments on s 80 District Court Ordinance: Reasons for verdict: Reasons for sentence
BETWEEN
-------------------------- Coram: Sir T.L. Yang, CJ, Silke, V-P and Power, JA Date of Hearing: 15 October 1991 Date of Judgment: 15 October 1991 ----------------- JUDGMENT ----------------- Silke, V-P: 1. This is the judgment of the Court. 2. Tsui Yun Chak, the 1st applicant, Wu Sai Kit, the 2nd applicant and Yip Kai Ming, the 3rd applicant appeared for trial before Her Honour Judge Beeson in the District Court on a charge sheet containing ten charges. After trial the 1st applicant was convicted of one charge of false imprisonment, two charges of assault occasioning actual bodily harm, two charges of criminal damage and two charges of criminal intimidation. The 2nd applicant was convicted of one charge of false imprisonment, one charge of assault occasioning actual bodily harm and three charges of criminal intimidation; and the third applicant was also convicted of the false imprisonment charge, one charge of assault occasioning actual bodily harm and two charges of criminal intimidation. They were sentenced each to a total of two years imprisonment. The two years itself had been imposed in respect of the false imprisonment charge with the other sentences ordered to run concurrently. 3. Originally they all sought leave to appeal against both conviction and sentence. The only ground placed before us in respect of conviction was that the trial judge failed to comply with provisions of s 80 of the District Court Ordinance in that she failed to deliver Reasons for Verdict and/or Sentence:
from time of Verdict the hearing had ended on 21 June; Verdict was pronounced; the recording of the Reasons was on 12 July 1991. It was suggested that this default rendered the verdict a nullity. 4. In the face of the Court Mr MacKenzie-Ross, who appears for all the applicants, abandoned the application in respect of conviction. We were therefore concerned now only with sentence. 5. All these ten charges arose. from the same incident. Mr Lam Hung Wang owed money to a vegetable wholesaler in the Cheung Sha Wan Market. That firm was run by the brother of the 1st applicant who also worked in it. Goods had been supplied on credit to Mr Lam who was a vegetable hawker having a stall. His indebtedness had mounted up and, at a time earlier than the incident which gave rise to the charges, he had been lent a further $100,000 at an interest rate of 84% p.a. - the apparent intention being to help Mr Lam reduce his original debt of some $165,000. By the end of June of 1990 Mr Lam had closed down his business, left Hong Kong and gone to China. He returned from China on 13 July 1990. By that time complaints had been made to the police in relation to cheques which Mr Lam had issued and which had been dishonoured. Mr Lam was rearrested on his return. There were further negotiations between his main creditor, Mr Tsui, and himself and a schedule of repayment was agreed. There were to be payments of $4,000 per month beginning in August of 1990. The complaint to the police was at that time, withdrawn. The had been a payment at some time, when we are not clear, of $60,000 by Mr Lam to this particular creditor in order to reduce his debt. 6. On 30 July 1990, before the $4,000 arranged payment was made in August, the applicants led by the 1st applicant and with others in tow, met Mr Lam in a restaurant. There was a demand made from Mr Lam for an immediate payment of $200,000 to which Mr Lam did not, on the instant, agree - he had earlier said that he had no money in any event - whereupon the 2nd applicant assaulted Mr Lam and there were further assaults perpetrated on his person by the 2nd and 3rd applicants. Mr Lam was taken from the restaurant, forced into the back seat of a car and driven to the Cheung Sha Wan Wholesale Vegetable Market. In the course of that journey other demands were made upon Mr Lam and further assaults took place. 7. At the market he was brought to the canteen. He was there surrounded by a group and was unable to make his escape. He was required to give the telephone number of his mother. He was told that if repayment was not made he would be beaten to death and his body thrown into the sea. He was again assaulted by the 2nd applicant and another person who was not before the court. He was asked for his wife's address. At this time he and his common law wife were not living together. The 1st applicant said that he would go to Mr Lam's wife to get the money. Mr Lam was forced back into the car and taken to the estate where the wife was then living with her family. 8. When they reached the flat in the estate, the 1st applicant went into it, followed by Mr Lam. Mr Lam then managed to close the iron grille, shutting out the 2nd and third applicants who remained outside. In the course of closing that iron grille he was assaulted by the 1st applicant. His wife attempted to help Mr Lam and she in turn was assaulted by the 1st applicant. 9. When the wife's sister attempted to telephone for help the 1st applicant whipped out the telephone cord and damaged the telephone itself. The wife then tried to go to the back of the flat to alert her neighbours and get their assistance. She was assaulted by the 1st applicant. Nevertheless she and her sister did manage to alert the neighbours. There were further demands for $200,000 made to Mr Lam which he indicated was an impossible demand. The 1st applicant again threatened to kill Mr Lam and Mr Lam was further assaulted. 10. The 1st applicant attempted to grab the keys of the door of the flat so as to allow D2 and D3 to come in. He did not succeed. The police then arrived on the scene. 11. Generally in evidence there was a denial by the 1st applicant, who was the only person who gave evidence, of the matters described by Mr Lam, his wife and his sister-in law. 12. In passing the sentence she did the trial judge took the view that these offences were "extremely serious", that the three applicants were, on behalf of the 1st applicant's brother either voluntarily or for payment, acting as "bully boys" to retrieve the sum owed. She went on that it
She considered the false imprisonment to be the most serious and, as we have indicated, imposed on that offence the two years sentence. 13. There had been a suggestion that any sentence which she might consider proper should be suspended. That suggestion she rejected. 14. The 1st applicant is married and his wife is pregnant. The 2nd applicant is single and he worked for the 1st applicant. The 3rd applicant is also single, though we were informed today that he is contemplating marriage. He also worked for the 1st applicant. All had minor records which the trial judge very properly did not take into consideration in passing sentence. 15. In concluding her Reasons for Sentence, she said:
16. Mr MacKenzie-Ross has taken issue with the reference to an "element of general deterrence" in particular because no Reasons for Sentence were delivered at the time sentence was imposed. 17. This Court in The Queen v Tam Wing Hung [1988] 2 HKLR 44 at p 48 had this to say in relation to the giving of reasons by a District Court judge at the time that the verdict is passed:
We wish to endorse that which was said in Tam Wing Hung. 18. Section 80 of the District Court Ordinance reads:
Surprisingly, that section makes no reference to giving of Reasons for Sentence. 19. While it is the better practice that Reasons for Verdict should be given at the time of the recording of that verdict, nevertheless we do understand that in a busy court this may not always be possible. But, that having been said, it is always preferable, and not merely "the better practice" that if a man is to be deprived of his liberty, he should be aware of the particular reasons for the quantum of the sentence he is about to face. 20. However, we do not think that the absence of reasons given at the time, by itself, would be sufficient ground for interference with a proper sentence. 21. Mr MacKenzie-Ross has urged upon us that the applicants had "a strong motivation" for their actions in that they were attempting to recover money which was due and they themselves were concerned with the firm to which the money was owed. He has drawn to our attention an unreported decision in the Queen v Chan Ping Leung and Another Cr app 336 of 1987 in which two persons had been found guilty of blackmail and theft after trial and sentenced to 2 1/2 years on the blackmail charge and 12 months imprisonment on the theft charge. There had been an attempt to get money from a person who owed it to one of the applicants who brought along others to attempt to enforce his demands for repayment. The court said:
22. But that is not analogous with the situation here. This was not an attempt to resolve a dispute. It was a direct, planned attempt at enforcement., Those who are owed money in Hong Kong cannot be permitted with impunity to act in the manner in which these three applicants did. Whatever justification - although Mr McKenzie-Ross has expressly disclaimed the use of the word "justification" - they may think they had in their own minds does not condone what they did. 23. First of the mitigating circumstances urged on us is that the debt was due, -a debt incidentally which had been increased vastly by the exorbitant rate of interest originally agreed and which was the debt which these men were attempting to recover; second, that the applicants, not having been told at the time why there was an element of deterrence in the sentences passed upon them, could well now have a sense of grievance. In any event the element of deterrence would have in effect been lost because of the fact that no reasons were given at the time. 24. Bearing in mind the submissions made to us and also the severe assaults - and these were not, as suggested, minor - the nature of the fear into which Mr Lam was placed and the threats made to him, we have considered the quantum of the sentence passed. We are not of the view that it would warrant our interference. We do not think for a moment that a suspended would have been correct. The application for leave to appeal against sentence is refused. The application for leave to appeal against conviction was dismissed at an earlier stage in the hearing.
Representation: David MacKenzie-Ross (M/s Laurence Pang & Co) for Applicants D.G. Saw for Crown/Respondent |
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