HKSAR v. Wong Kam Chan

CACC000345/1998

CACC 345/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 345 OF 1998

(On Appeal From DCCC 1350/97 & 92/98)

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Coram : Hon. Nazareth, Ag. CJHC, Stuart-Moore, V-P, & Nguyen, J. in Court

Date of Hearing : 30 June 1999

Date of Judgment : 30 June 1999

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J U D G M E N T

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Nazareth, Ag. CJHC (Giving the judgment of the Court)

1. The Applicant, Wong Kam Chan, was convicted on 10th June 1998 by Deputy Judge Jenkins in the District Court of 3 offences. First, false imprisonment; second, blackmail and third, dealing with the proceeds of an indictable offence. On 24th June 1998, he was sentenced to 4 years imprisonment for the false imprisonment and to two terms of 21/2 years imprisonment each in respect of the other two offences. All the sentences of imprisonment were ordered to run concurrently. He now seeks leave out of time to appeal against those sentences.

2. The particulars of the offences were first that on 6th and 7th August 1997 in Hong Kong together with other persons, he unlawfully and injuriously imprisoned one Ko Kai Hing ("Ko") and detained him against his will; second, also with other persons "with a view to gain for themselves", he made unwarranted demands for HK$1.1 million from Ko Hing Hung with menaces; and third that on or about 7th August 1997, knowing that property, namely HK$1.1 million deposited into his bank account No. 001-4-289912 with the Hong Kong Bank, in whole or in part represented the proceeds of an indictable offence, namely false imprisonment, he dealt with the said property.

3. The facts, upon the nature of which heavy reliance is placed by the Applicant, are as follows. The victim, Ko was the Chairman of Kosonics Industries (Holding) Ltd. ("Kosonics") a publicly listed company. It had got into financial difficulties with debts of about $500 million owed to 200 creditors. A scheme of arrangement had been proposed and was before the High Court. One of Kosonics' creditors was the Splendor Wire Co. ("Splendor") which was owed about $4 million.

4. About 7 o'clock on the evening of 6th August 1997, Ko left Kosonics' premises. He was about to enter his car when four men approached, took his keys and briefcase and pushed him into the back of his car. One man sat on either side of him, one drove the car and the fourth, who was the Applicant "Wong", sat in the front passenger seat.

5. The car was driven off, a hard object was pressed against Ko's left side, he was told not to move or do anything rash and that the men simply wanted to discuss a debt owed to Splendor, which they said was a client of theirs. Ko was most unwilling to get into the car with the men or to go with them. He had been intending to drive to Shenzhen to meet his brother and another business associate. Nor did he wish to discuss an individual debt. A scheme of arrangement was intended to cover all his company's creditors. He told them he thought it would be wrong to pay one creditor in preference to the others.

6. Three of the men including Wong took Ko to a mahjong club to discuss the debt and later to a restaurant nearby. The fourth man had driven away the car. Wong showed Ko a document, which became Exh. 1, purporting to be a letter authorizing Wong to collect a sum in excess of $4 million from Kosonics on behalf of Splendor. After some discussion it was agreed to settle the claim at $2 million. Ko was told to arrange payment of that sum within 24 hours. Ko testified "I had no choice but to agree. If I did not agree to pay they would not release me." He said that on a number of occasions the men told him that unless the matter was resolved they would not let him go.

7. About that time, 8:30 in the evening, Ko's sister managed to get through on his mobile phone. She was agitated. To calm her down he told her that he was safe and he had not been harmed. He said that an agreement had been reached by which he was to pay $2 million and that she should raise that sum. One of the men at that time said that the money had to be raised by noon next day and Ko relayed that to his sister.

8. The three men including Wong then took Ko by taxi to the Nikko Hotel which Ko had selected as he wanted to have a rest. Later other men joined them and the whole party of six went up to the room. Ko's sister telephoned again about 10 o'clock. He told her not to worry and that he was safe in a five star hotel in Tsimshatsui. This worried the men so they moved to another hotel, the San Diego Hotel in Jordan. Ko thought it would be more pleasant to spend the time in a karaoke lounge and they went to one and remained there until 2 or 3 o'clock in the morning. They then returned to the hotel. Ko and the three men went back to the hotel room where Ko slept on the bed and the other three on the floor around him.

9. All the time Ko's sister had been telephoning frequently, and speaking not only to her brother but to the other men. One of them told her not to call the police. She was also told they had authorization from Splendor, that her brother would not be harmed and that everything would be all right so long as he was willing to pay. At about 2 o'clock in the morning she told Ko that all she could raise was $1.1 million in cash. About 12 noon on 7th August the matter was finalized. The sister was to deposit the $1.1 million in cash into a bank account specified by Wong.

10. That arrangement having been reached, Ko wished to ensure it would be a complete release of Kosonics' obligations to Splendor. So he drafted a document (Exh. P2) by which Wong would acknowledge receipt of $2 million on behalf of Splendor in settlement of their claim and also got Wong to copy his ID card and attach it to the document.

11. Ko's sister accordingly deposited $1.1 million into the designated bank account. The balance of $900,000.00 was to be paid by post-dated cheque which Miss Ko would take to Ko who would then give it to the men. For this purpose Ko was taken by two of the men, neither being Wong, by taxi to outside the Dynasty Cinema in Mongkok. While he was there Ko was told by his sister on his mobile phone that he should leave quickly. He asked why and this apparently alarmed the two men who immediately left.

12. Later that afternoon Wong and another of the men went to a Branch of the Hong Kong Bank in Jordan. The evidence of the manager and a bank teller there was that Wong wished to withdraw $1.09 million. He was told the maximum that could be withdrawn was $500,000.00. As a result, he withdrew $500,000.00 and $500,000.00 was transferred to an account in the other man's name. Wong was later traced and arrested.

13. So much for the facts. We turn then to the grounds of appeal relied upon by Mr. Andy Hung for the Applicant, who did not appear below. The two points he takes are that in sentencing him, the Deputy Judge did not mention a starting point and secondly that the sentence was excessive. Mr. Hung began his submission by reference to some authorities. None of these he conceded are related to any tariff, guideline or principle. This court has observed before that comparisons with the individual circumstances of other cases are of little assistance where they do not relate to a tariff, guideline or principle. Nevertheless, we will touch very briefly upon the cases that he did refer to.

14. First of all, R. v. Tsui Yun Chak and Others Crim App. No. 333 of 1991 (unreported). That was a case in which the Applicants were convicted of charges of false imprisonment and of assault occasioning actual bodily harm and they were sentenced each to a total of 2 years imprisonment. The circumstances of that offence are of no particular relevance other than that there were also assaults upon the victim. The next case was the R. v. Chan Wing Kuen & Another Crim App. No. 231 of 1994 also unreported. This was a case in which the sentences are not revealed. One might therefore ask what assistance it is. Mr. Hung uses it simply in support of his proposition that the typical case of false imprisonment involves loan sharking and assault. This was a case where money was lent to a person in connection with gambling in Macau. Those who loaned him the money accompanied him back to Hong Kong and took him to a hotel. They detained him for that night in a hotel, made demands from the victim's friends and were apparently intercepted by the police later in the day. Again, it is difficult to see what assistance this case provides.

15. The third authority was the R. v. Lui Sau-cheong [1993] 2 HKCLR 298. This was a case in which money had been lent to a prostitute who fell into arrears in repaying it. The flavour of the case can be gathered from the following facts. She was given two loans of $5,000.00 and $10,000.00 on separate occasions. The interest rate was some 1,371% per annum. The Court of Appeal in dealing with the matter characterized the case as being from start to finish, one of a "loan-shark" operation of a particularly nasty character. The victim fled. She was hunted down and struck with a mobile telephone when she was found. It is doubtful whether she would ever have been able to pay. So she was made to work for the Applicant as a prostitute. The sentence there was 4 years for false imprisonment and on the charges of lending money at excessive rate, 9 months, which was made consecutive thus resulting in totality to imprisonment for 4 years and 9 months. Bokhary J.A. (as he then was) in giving the judgment of the Court said this:

"There is no doubt that, despite the seriousness of the present offences, the sentences passed by the learned judge below, even by the standards of the particular circumstances was high."

Upon that basis, Mr. Hung contends that the sentence there of 4 years for false imprisonment was high in respect of false imprisonment. We think that must be so.

16. Mr. Hung finally referred to another authority which Mr. Cheung for the Respondent very properly made available to him. This was HKSAR v. So Tang-fat [1997] Crim App. No. 183 of 1997 (unreported). It was also a case of false imprisonment and assault occasioning actual bodily harm. The Applicant there was sentenced to 2 years imprisonment. The appeal was heard by this Court differently constituted. Reference was made to Lui Sau-cheong's case and the Court concluded in these words:

"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."

17. As will have been seen from what we have already said, besides the false imprisonment, the victim was actually subjected to assault. In addition he was confined for approximately 40 hours. On the basis of that, Mr. Hung submits that at the lower end of offences of unlawful imprisonment a sentence of 2 years is appropriate. We do not think that submission can necessarily be accepted. It is plain from the Court's conclusion there that what they found there was that the sentence of 2 years was neither wrong in principle nor manifestly excessive. It does not seem to us that decision went beyond that.

18. Mr. Hung then turned to the facts which need not be repeated. He particularly stressed that the Applicant was collecting a genuine debt from Ho; the element of threats and intimidation he says were small; the victim suffered no substantial fear; no physical harm was caused to Ho; and no triad connection or loan shark operations were involved. He particularly stressed that Ho was never put in fear. In fact, he says that Ho was able to negotiate with his creditors in beating down the debt of $4 million to $2 million. Moreover, he persuaded them that he was in need of a rest, got them to take him to a hotel he had suggested, and moreover, then to the karaoke lounge he requested. He also says that at no time was force used.

19. In most of those respects, he is of course right; those facts are not disputed. However, the false imprisonment in abducting someone in broad daylight, the taking over of his car by four men, his detention from 7 o'clock in the evening to about midday the next day and the clear threat not to release him till he paid, is a serious matter. The victim Ko made it plain that he went unwillingly and that he knew the men would not let him go. The abduction and detention of persons to enforce payment whether of legitimate debts or improper demands is by any standard a very serious offence. It is also recognised as being prevalent in Hong Kong. Wong was identified by the judge as the mastermind. The features mentioned by Mr. Hung simply do not lead to the conclusion that the sentence of 4 years was wrong in principle or excessive; nor do the authorities as we have indicated. Ultimately the offence of unlawful imprisonment here has to be judged on its own circumstances. It was associated with an offence of blackmail in which the menaces were addressed to the victim's sister. A large sum of money was obtained and the Applicant handled it. Had a proportion of the sentences for the latter two offences been made consecutive as could properly have been done, the aggregate terms of imprisonment the judge imposed could easily have exceeded 4 years, the totality to which he confined it. In the end, we do not find any error of principle nor are we able to accept that the sentences, in particular the 4 year sentence on the charge of false imprisonment, were excessive. We accordingly refuse leave to appeal out of time.

Representation:

Mr. Andy Hung, instructed by DLA, for the Applicant

Mr. Cheung Wai Sun, (Ag.) PGC, for Director of Public Prosecutions