The Queen v. Chiu Kin Man and Another

CACC000472/1984

BETWEEN -

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

Date: 2 January 1985

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JUDGMENT

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Roberts, C.J. -

1. This is an application for leave to appeal against sentence by WONG Wai-tung, the first defendant, who was convicted after trial on one charge of blackmail and two charges of false imprisonment and was sentenced to four years, seven years and four years' imprisonment respectively, all the sentences to run concurrently.

2. The first two charges of which he was convicted were part of the same transaction. On 23rd May, a woman named LEUNG Siu-ying lost a substantial quantity of money gambling in a casino in Macau. She was approached by Wong, who offered to lend her money. He advanced to her a sum of $2,950, in return for which she was obliged to sign a promissory note for $5,000.

3. Wong returned with Mrs. Leung to Hong Kong that night in order to collect the debt that was owing to him. On 24th May in Hong Kong, she told Wong that she had not been able to raise the money to repay him, whereupon he made her replace the promissory note for $5,000 with a new one for $6,000.

4. She met him again on the following day (25th May) and asked for further time to pay. He said he was not prepared to wait any longer and that she was to come back to Macau with him to see the boss. He added that if she refused to go back to Macau with him, her nine year old daughter would be forced into prostitution. This was the subject of the blackmail charge.

5. As a result of these threats, Mrs. Leung accompanied Wong to Macau the same evening. This was the subject of the first false imprisonment charge. As a result of further pressures that were put upon her in Macau, her husband arrived there on 26th May, and paid a sum of $7,000 to Wong in discharge of the debt.

6. So far as the third charge was concerned, CHEUNG Ho went to Macau to gamble on 26th May and lost all his money there. He was introduced to Wong who offered him a loan and paid him $2,200, for which Cheung was obliged to sign a promissory note for $3,000, a sum which would become $3,500 if he jailed to repay the same evening.

7. Cheung was then taken back to a hotel in Macau where he was forced to produce a list of addresses and telephone numbers of his relatives. Cheung was detained by D.1 and others until 5th June when they all returned to Hong Kong, where Cheung was taken to premises in Temple Street and not allowed to leave. This was the subject of the second charge of imprisonment.

8. Wong then telephoned some of Cheung's relatives telling them to send money. Later that day both defendants left the premises with Cheung and went to a restaurant, where they were seen by the police and arrested.

9. Part of the transactions which gave rise to these charges and convictions took place in Macau. For the purposes of deciding whether or not the charge had been proved, the judge confined his consideration to the evidence of what occurred in Hong Kong, but in deciding punishment he took into account, in our view rightly, the whole history of the transactions.

10. It is clear that this kind of pressure applied by people whom, I think it is fair to describe as 'loan sharks', preying on gamblers, is conduct that justifies substantial sentences.

11. Mr. Hoo, however, has drawn our attention to a number of cases in which the offences of blackmail and false imprisonment have been dealt with in recent years by the District Court.

12. Both are offences which vary considerably in their degree of seriousness and neither is the kind of offence for which it is easy to prescribe a tariff. However, it is clear that in convictions for both blackmail and false imprisonment the usual sort of range is between eighteen months and three years with occasional sentences as high as four years.

13. We do not consider that the circumstances of these offences can be said to be noticeably more serious than those - so far as the short descriptions of them disclose - of some of the other sentences which were brought to our novice.

14. The judge thought that the proper sentence for the sentence of false imprisonment was nine to ten years, commenting that the circumstances were tantamount to kidnapping.

15. It is, of course, true that the offences of kidnapping, false imprisonment and of forcible detention are similar in nature and often the circumstances would justify an accused person being charged under any of them or even under all three.

16. Nevertheless, the inference which can, we think, be properly drawn, from the passage I have just quoted, is that the judge regarded kidnapping as being a more serious offence than false imprisonment and passed his sentence on that basis, which he should not have done in view of the nature of the charge which the applicant faced.

17. We note, in passing, however, that his approach was correct for a District Judge who believes that his powers of sentence are inadequate for the offence with which he was dealing. If, for instance, a District Judge is dealing with a very serious case of robbery and believes that, on the established tariff, a sentence of ten years' imprisonment would be correct, he should say so and then reduce the sentence to seven years, in accordance with the limit of his powers of punishment.

18. On the basis of the established pattern of sentence for the kinds of offence with which we are dealing, we think that the application for leave to appeal against sentence should be granted, that the sentences of four, seven and four years' should be quashed and a sentence of three years' imprisonment imposed on the first charge, three on the second charge to run concurrently with the first and three on the third charge, one year of which will run consecutively to the sentences on the first two charges, thus giving a total of four years' imprisonment.

19. We have adopted this approach to make it clear that somebody who commits more than one offence of this nature can normally expect a higher sentence than if he was only found guilty of a single such offence.

Representation:

Mr. A. Hoo (Howell & Lo) for D.1.

D.2 CHU Kin-man in person

Mr. A.A. Bruce, Senior Crown Counsel, for Respondent