Attorney General v. Lam Kok-hung

CAAR000009/1982

[Immediate imprisonment appropriate for serious cases of charging excessive interest].

BETWEEN:

Coram: Roberts, C.J., Yang & Barker, JJ.A.

Date: 17th & 18th March, 1983.

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JUDGMENT

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Roberts, C.J.:

Preliminary

1. This is an application by leave for a review of sentence by the Attorney General. The respondent, LAM Kok-hung ("Lam"), was convicted on four charges; one of criminal intimidation, two of lending money at an excessive rate of interest; and one of blackmail.

2. Notice of the hearing before us was served on Lam's solicitors, Messrs. Hoosen & Company on 10th March, 1983. Mr. Jacky Tong, a managing clerk employed by that firm, attended before us and explained that, although his firm had represented Lam on his appeal against conviction, they had been unable to obtain proper instructions from Lam as to the conduct of this application on his behalf, and had written to the court to ask to be released as solicitors on the record.

3. However, on 12th March, one of the partners of the firm had spoken to Lam, informing him that a summons had been received by the solicitors requiring Lam to attend before this court yesterday and that he must comply.

4. We decided, since notice of this hearing had been given to Lam, to proceed with the application in his absence.

Facts

5. The incidents which led to these charges can be summarized as follows. CHAN Kar-lai ("Miss Chan"), a woman of 24, was substantially in debt as a result of her gambling activities. One of her creditors was Lam's wife, who asked Miss Chan to repay to her the sum of $2,000, suggesting that her husband ( Lam ), would be able to arrange a loan.

6. On lst July, 1982, Miss Chan approached Lam and a loan of $2,000 was arranged, on the terms that Miss Chan was to pay back $100 per day, starting immediately, for the next 30 days. Thus, $3,000 was to be paid, within 30 days, which works out at an interest rate of 1161.29% per annum.

7. On the following day, Miss Chan asked Lam for a further loan, to cover other gambling debts which she had incurred. On this occasion, she sought a loan of $10,000. This Lam agreed to provide on terms that the loan should be repaid at the rate of $200 per day for 100 days. i.e. a total of $20,000 in all. This amounted to an interest rate of 712.87% per annum. These two loans formed the subject of Charges C and D, of both of which Lam was convicted.

8. Miss Chan soon failed to meet the daily payments and Lam suggested to her that the matter could be settled if she would pay him a sum of $15,000. She replied that she was unable to raise such a sum but Lam insisted.

9. On the 5th August, a meeting took place at the Jordan Road Ferry Pier, at which Miss Chan and her husband met Lam. At this meeting, an argument developed, Lam insisting that the $15,000 be paid and Miss Chan maintaining that this was impossible. Lam threatened that he would take Miss Chan to an unspecified place where "she would work, sleep and eat and earn the money for the respondent and that he had brothers at a restaurant that he would have brought to Miss Chan's place if he had not found her at the pier and, if such happened, he would not be responsible for the consequence or for Miss. Chan's daughter".

10. Miss Chan's husband asked for three days' grace and, shortly afterwards, they took refuge in the apartment of a friend. The threats which were made against Miss Chan by Lam at this meeting formed the subject of Charge F (blackmail) of which Lam was convicted.

11. About 2 a m. on 9th August, after Miss Chan had telephoned again to Lam to say that she could not raise the $15,000, Lam and a group of men went to the apartment where Miss Chan and her husband were spending the night.

12. Lam entered the apartment and said to Miss Chan "Well, you think you can do something by telling the police, but nothing has happened to me". He went on "If I want to do something to you two, all I have to do is to go to Macau for one day and this will drive you to a dead end."

13. According to Miss Chan, she regarded this as a  threat of harm to her and her husband, who was present. Her alarm was increased by the behaviour of the group of men, who had accompanied Lam but remained outside banging on the door of the apartment. They were not allowed to enter and continued to make loud noises outside.

14. Lam then said to Miss Chan and her husband "I am 14K. We are brothers." The words which were uttered on the occasion, the reference to membership of a triad society and the presence of a band of men banging on the door in the early hours of the morning, formed the evidence on which Lam was convicted of Charge B (criminal intimidation).

Sentence

15. The magistrate imposed sentences of three months' imprisonment, suspended for 18 months', on the criminal intimidation charge, the same sentence on each of the two charges of lending money at an excessive rate. of interest and six months' imprisonment, suspended for 18 months', on the charge of blackmail. All four sentences were to be consecutive. Lam was also ordered to pay costs of $1,000.

16. Lam was born on the 18th May, 1959. He has previous convictions, for criminal intimidation in 1975, for which he was fined $250, for membership of a triad society in 1977, for which he was bound over in the sum of $500 for two years; and for taking a conveyance without authority in 1977, for which. he was fined $500.

17. In view of Lam's age, the magistrate asked for a report as to Lam's suitability for a detention centre order. A report recommending such an order was made to the magistrate.

18. In reaching his conclusion that the sentences of imprisonment on the respondent should be suspended, the magistrate took account of the age of the respondent who was 23 at the time of the trial, and of the fact that he had not been in custody before. He appears to have been greatly influenced by his concern as to what might happen to Lam's 4-year-old daughter, if the respondent was not still at liberty to look after the girl.

19. These are all entirely proper considerations, to which a magistrate may give weight when determining the sentence to be imposed. Nevertheless, we consider that he gave far too great a weight to them, and much too little to the seriousness of offences of this kind.

20. It is, unhappily, all too common for misguided persons to run themselves heavily into debt as a result of gambling activities, as the unfortunate Miss Chan did in this case. It is only a short step from this, to the debtor placing himself in the hands of loan sharks, who charge an appalling rate of interest, the effect of which is to force the lender deeper and deeper into debt. It  was to meet this kind of situation, with all the social distress which it brings and the crime which it breeds, that the Moneylenders Ordinance was enacted in 1980.

21. Section 24 of that Ordinance limits the maximum permissible rate of interest on a loan to 60% per annum. The punishment for an infringement of this section is a fire of $100,000 and imprisonment for two years .

22. The rates of interest specified in Charges C and D were respectively 1161 and 713, taking them to the nearest whole number. These rates are grossly in excess of the 60% which is permitted. In our opinion, serious infringements of section 24, as the present cases are, should attract an immediate custodial sentence, if proper effect is to be given to the expressed intention of the legislature.

23. We consider that the sentences of three months  imprisonment on each of the moneylending charges are entirely proper ones, if they are immediate and not suspended.

24. The facts to which I have referred show a serious course of threats and intimidation applied to this unfortunate woman and her husband. In general terms, it is in the public interest that threatening conduct of this kind should be regarded, in the normal case, as worthy of an immediate custodial sentence. This applies to both the criminal intimidation and the blackmail charges.

25. The magistrate, in his Statement of Findings, states that on reflection, he considers that he should have made a detention order. Had he done so, we would not have thought that this was so manifestly inadequate. a sentence that we should interfere with it.

26. However, we think that an immediate sentence of imprisonment is more appropriate to these offences than such an order, and since, (subject to a change in the sentence for criminal intimidation), we regard the length of imprisonment imposed by him as correct, we shall not seek to vary the magistrate's decision to impose imprisonment.

27. If we were dealing afresh with this matter, we would have been inclined to substitute, on the criminal intimidation charge, an immediate sentence of six months' imprisonment, rather than three. We would not have interfered with the other three sentences, provided that they were for immediate imprisonment.

28. Thus, we should have imposed a total sentence of 18 months' imprisonment. However, in accordance with the usual practice, which is to allow a degree of reduction on a review, we will leave untouched the sentence of three months on the criminal intimidation charge. The total will remain, therefore, at 15 months' immediate imprisonment, i.e. 3, 3, 3 and 6 months' consecutive. The order for the payment of costs by the respondent will remain.

Representation:

P. Duncan, Sr. Asst. Crown Prosecutor for Applicant

No appearance of Respondent