R. v. Lui Sau Cheong

CACC000095/1993

1993, No. 95
(Criminal)

H E A D N O T E

The courts have in recent years seen enough of the evils and ills of loan-sharking to become fixed with a duty to combat the same by penalties heavier than those generally imposed in the past.

IN THE COURT OF APPEAL

1993, No. 95
(Criminal)

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Coram: Silke VP, Bokhary JA & Leonard J

Date of hearing: 28 October 1993

Date of judgment: 28 October 1993

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court):

1. This is an application for leave to appeal against sentence out of time. We decided to entertain the application on its merits; and we extended time in order so to do.

2. On February 25 this year, before His Honour Judge Hartmann in the District Court, the applicant, a man in his late twenties, was convicted after trial on three charges of lending money at an excessive interest rate, contrary to section 24(1) of the Money Lenders Ordinance, Cap.163, and to one charge of false imprisonment, contrary to Common Law. The person to whom the loans were made was a woman who was earning her living as a prostitute. And it was she who was falsely imprisoned: because she could not repay.

3. The applicant was on the same day sentenced to nine months' imprisonment on each lending charge and to four years' imprisonment on the false imprisonment charge. The lending sentences were made concurrent to each other but consecutive to the false imprisonment sentence, so that four years and nine months' imprisonment is what the applicant received in all.

4. The loans were: one of $5,000 in March 1990; a second one in the same amount later in the same month; and a final one of $10,000 in the following month. The rate of interest charged worked out at 1,371.439% per annum.

5. In passing sentence, the learned judge took a starting point of one year for the lending charges and four and a half years for the false imprisonment charge. The actual sentences at which he arrived were reached by way of deductions for the applicant's previous good character. The deductions being of three months in the case of lending charges and six months in the case of the false imprisonment charge.

6. We have been referred to a number of previous decisions including Mr Justice Bewley's decision in The Queen v. Yung Yiu-keung, Magistracy Appeal No. 671 of 1988, September 19, 1988 (unreported) and the various decisions reviewed by Mr Justice Bewley in that case.

7. By the standards of the older cases, the present sentences certainly appear to be very high indeed. The fact remains, however, that times have changed; and in the present regard they have, most regrettably, changed for the worse.

8. From start to finish, the substance of this case is one of a "loan-shark" operation of a particularly nasty character. Such operations are unfortunately all too frequent nowadays. In case after case coming before the criminal courts, one sees a procession offenders to a large extent driven to their offences - whether involving dangerous drugs, forgery, fraud, theft, robbery, burglary or any other number of offences - to escape the clutches of loan sharks with whom they had the misfortune to deal. The courts have in recent years seen enough of the evils and ills of loan-sharking to become fixed with a duty to combat the same by penalties heavier than those generally imposed in the past.

9. Looking at the reality of this case, anyone can see that this woman had no real prospects of repaying this kind of money through earnings by anything remotely resembling legitimate means. It was not even at all likely that she could repay simply by an increase in her activities as a prostitute. She kept up repayments for sometime. Then by mid-August 1990, she was at the end of her financial tether and unable to keep up the repayments. She went into hiding. And, to use an expression employed by the learned judge in passing sentence, she was eventually "hunted down" by this applicant and his companions. He reintroduced himself to the victim by hitting her with his portable telephone. Those preliminary unpleasantries having been gotten out of the way, she was taken to a flat where she was detained and informed quite plainly that she had either to repay a sum which had by then reached six figures, and which nobody could have imagined she could possibly have repaid, or work for the applicant as a prostitute.

10. The learned judge quite rightly made the point that it was no small matter that she should be confronted with a choice like that even though she was or had been a prostitute already. It was one thing for her to earn her living in that way on her own account, so that she could stop whenever she chose. It was another thing for her to have to do that for and under the control of a man to whom she was financially or otherwise enslaved.

11. There is no doubt that, despite the seriousness of the present offences, the sentences passed by the learned judge were, even by the standards of such circumstances, high. But everything looked at in the round, we feel unable to say that he has strayed beyond the range within which he was entitled to deal with the man who stood before him for sentence.

12. In those circumstances, with an expression of our indebtedness to counsel on both sides for their assistance, we refuse leave to appeal against sentence and dismiss the application for such leave accordingly.

Representation:

Mr John Hemmings (instructed by Messrs Kwan & Kwan) for the applicant

Mr D.G. Saw (of the Attorney General's Chambers) for the Crown