The Queen v. or Lung-yuen

CACC000408/1983

Sentence on "excessive rate" offences under the Money Lenders Ordinance.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 403 or 1933

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BETWEEN

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Coram: Hon. Barnes, J. in Court.

Date: 29th April, 1983.

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JUDGMENT

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1. The Appellant was found guilty of twelve offences under the Money Lenders Ordinance. For the offence of Carrying on Business as a money lender without a Licence he was sentenced to imprisonment for six months. On each of ten offences of Lending Money at an Excessive Rate of Interest he was sentenced to imprisonment for three months and on one other such offence he was sentenced to imprisonment for one month. The Magistrate ordered that all the sentences were to be concurrent.

2. The true annual percentage rate of interest in nine of the offences vas over 900. In one offence it was 770 and in another - the offence for which the sentence was imprisonment for one month - it was 159.

3. In his Statement of Findings in relation to sentence the Magistrate said:-

"     The appellant is aged 30 and married with two children. He had no previous conviction other than a minor gambling conviction in 1980. Prior to commencing his business in July 1982, he had been a tailor for 10 years. I was told he had borrowed the capital to establish the business and he was not in a position to repay it.

There was no suggestion of triad association in the evidence. No borrower had initiated a complaint to the police. Only one borrower (PW4, Charge H amount lent $500, rate of interest 159% p.a.) had applied his loan to repayment of an existing debt to the appellant.

I had regard to the appeal decision and observations of His Honour Mr.Justice Leonard in Criminal Appeal 783/81. I considered the following to be seriously aggravating factors : the extraordinarily high rates of interest; and the systematic attempt to disguise the true nature of the transaction by false documentation."

4. In the decision referred to, Leonard, J.A. said:-

"     My primary duty is to consider whether on the particular facts of this case, a sentence of four months' imprisonment is on the face of it manifestly excessive. I am satisfied that it is, in view of the clear records of the appellants, the absence of any suggestion of intimidation or triad back ground and the pleas of guilty. Had the sentences been of one month's imprisonment on each charge, the sentences to run concurrently I would not have felt free to interfere.''

5. In that case no rate was higher than 91% Although Leonard, J.A. said specifically that he had no intention "to lay down a tariff of sentences for offences of this nature", his judgment does indicate that he would probably not have found the sentences imposed in respect of the "excessive rate" offences in this case manifestly excessive.

6. Mr. Kwong, who appeared for the Appellant on the hearing of the appeal, did not challenge the decision to order sentences of imprisonment: he confined himself to a submission that immediate custodial sentences were not needed to deter the Appellant.

7. I have found this submission attractive. There would, of course, be no merit in it if there was a need for a general deterrent type of sentence but there does not appear to be any such need in respect of "non-triad" offences at the present time. I might add, on a personal note, that I recently attended a Magistrates Sentencing Seminar and my notes of that meeting reveal that most magistrates have had no experience at all in dealing with "loan shark" cases and that only one Magistracy reported having imposed a-prison sentence for an excessive rate of interest offence. Consequently, since this offender evinced no intention to use thuggery to smarten up sluggish customers, and since this prosecution has converted his dream of a handsome profit into the hard reality of a ruinous loss, it seems to me that suspension of the sentences will not weaken the deterrent effect upon him. I therefore allow the appeal to that extent. In each case the sentence will be suspended for 15 months from today.

Representation:

Mr. Michael Jennings, Crown Counsel, for the Crown.

Mr. Jimmy Kwong instructed by M/s K.Y. Woo & Co. for appellant.