The Queen v. George Kong and Others

CACC000397/1984

BETWEEN:

Coram: Roberts, C. J., McMullin, V. P., & Silke, J. A.

Date: 22 November 1984

Date of Delivery: 5 December 1984

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SENTENCE

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Roberts, C. J. -

1. The four defendants, who were convicted in this case, also seek leave to appeal against the sentences imposed upon them, that is to say, 2 1/2 and 2 1/2 years' concurrent in the case of D.1; 2 years' in the case of D.2, D.4 and D.5.

2. We would like to make it clear from the outset that we see nothing wrong with these sentences in principle in the ordinary sort of case in which pressure is put upon somebody to settle a debt not, unfortunately, an uncommon situation in Hong Kong.  Here, however, there were circumstances of an unusual nature which have enabled us to take a less stern view of the defendants than the trial judge felt obliged to take.

3. We accept, on behalf of the defendants, that there had been a transaction in which D.1 was swindled out of his own money and out of family money.  He was, therefore, understandably, in an angry and bitter mood. He made the mistake of attempting to recover his money by means that are clearly unacceptable in a law-abiding society.

4. In human terms, however, although his conduct is inexcusable it can, to some degree, be understood.  Nevertheless, he was the ringleader in the detention of a man whom he thought was in league with the person who had swindled him.  It must have been, for the victim and his friend, who was detained with him, an extremely frightening and unpleasant experience.

5. The conduct of D.1 is clearly not tolerable and the deputy judge was correct to impose an immediate custodial sentence, but we do not think that she gave sufficient account to the pressures under which D.1 was acting.

6. We are prepared, though this is an exceptional course, to reduce what would usually be a proper sentence of 2½ years' imprisonment on D.1 to twelve months' imprisonment on each of the two charges of which D.1 was convicted, the sentences to run concurrently.

7. The part played by the other defendants was a minor one.  They appear to have gained nothing, and had nothing to gain, from the assistance they gave to D.1.  They seem to have acted as they did out of a sense of loyalty and friendship towards him rather than from any other motives.

8. We are prepared to recognize this difference in their culpability by quashing the sentences of two years' imprisonment imposed on each of them and in substituting therefor sentences of six months' imprisonment, which signifies the difference which we see in their blameworthiness as compared with that of D.1, these sentences to be suspended for a period of two years.

Representation:

Mr. G. Alderdice (Y.K. Poon & Co.) for D.1, D.2 & D.4

Mr. I. Payne (D.L.A.) for D.5

Mrs. M. Tam, Crown Counsel, for Respondent.