HKSAR v. Chan Chau Ming and Others

DCCC 1365/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1365 OF 2010

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Reasons for Sentence

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Introduction

1.D1 – D3 plead guilty to a charge of false imprisonment.  The victim was kept against his will for 28 hours pending repayment of a Macau gambling debt at an exorbitant interest rate. 

Sequence of events

Victim’s IOU of $100,000

2.The victim worked at a bank.  In the small hours on 6 October 2010 he was gambling in a casino in Macau.  He was approached by a person called SAM, who persuaded him to join a VIP membership and exchange “mud chips” for gambling.  The victim lost at least $130,000.  SAM told him to write an “IOU” of $100,000.  He wrote the IOU as told.  His cell phone was kept by SAM.  He was escorted back to Hong Kong. 

Victim’s IOU of $160,000

3.D3 took over the victim at the ferry terminal in Hong Kong.  D1 joined them in Mongkok.  D1 got his own boss, Mr. CHAN, to talk to the victim on the phone.  CHAN demanded the victim to write out an “IOU” of $160,000 and repay the full sum within the same day. The victim wrote the IOU on a photocopy of his own identity card.  D1 left the party temporarily.   

D2’s offer to help borrow money

4.D3 took the victim to his workplace in Central to collect his salary receipts.  D2 joined them in Mongkok.  D2 offered to help the victim borrow money at a 5% commission.  The victim refused the offer.  CHAN told the victim over the phone that the debt would grow if not repaid.  D2 and D3 escorted the victim back to his home to collect his bank statements.  D2 gave his cell phone number to the victim to tout business as a loan agent. 

The victim borrowing money

5.D2 and D3 escorted the victim to borrow money at various finance companies.  Inside a finance company where the victim was alone, he used a cell phone he had secretly taken from his parent to call a police inspector, who was his friend.  Unfortunately, the police only arrived after they had left.  Afterwards, D1 took over the victim from them.  D1 took him to have meal and internet café to spend the night.  D1 forbade him to go home. 

6.In the following morning, the victim was taken home to collect his MPF statements.  Later, D2 rejoined them.  The victim was taken to various finance companies to borrow money.  D3 rejoined them in the meantime.  D1 told the victim to repay an extra $20,000 due to late repayment. 

7.D1 kept all monies, a total of $201,800, obtained from the victim and finance companies.  

Report made to the police

8.After repayment as aforesaid, the victim was released.  He told his parents what had happened. They cleared up his indebtedness to the finance companies.  They did not make a report to the police until an unknown male accused him of informing the police in that finance company.  The male demanded an extra $20,000.  Such calls kept coming in.  They made a report to the police.                   

Arrest of the Defendants

9.D1 was arrested based on the record at the internet café.  D2 was arrested based on the cell phone number he had given the victim.  D3 surrendered himself to the police. 

Personal background and mitigation put forward

10.D1 is 33 years old.  He was unemployed at the time of arrest.  He has been suffering from Thalassemia, which incapacitates him from any stable permanent job.  He has many previous convictions but none similar.  An ex-inmate offered him the job of a debt collector, which led to the present offence.  He had handed over all monies he received to CHAN.  He had been promised a reward of $2,000 but he did not get any yet before arrest. 

11.D2 is 29 years old. His wife is in China.  His mother takes charge of his 5-year-old son.  He was a finance agent but lost the job 5 months before the arrest.  He has 2 previous dissimilar convictions.  He was promised a 5% commission of the victim’s borrowings from the finance companies.  It would be over $8,000 but he only got $7,000 before arrest. 

12.D3 is 25 years old.  In 2009, he was injured at work.  He could only take up casual jobs due to his recurrent back pain.  He has a clear record.  He was promised a reward of $4,000, which he got before arrest.                

13.Their counsel all agree that despite their slightly different roles at different junctures, they were equally culpable in carrying out the instructions of their boss.   

Sentencing principles

14.There is no tariff for sentencing false imprisonment cases.  Anything short of a jail term is rare.  I have considered the following sentences imposed on Macau gambling loansharks:   

(a) In The Queen v Chiu Kin-man CACC 472/1984, the appellant was convicted of blackmail and false imprisonment of a female victim. She had lost a lot of money whilst gambling in Macau. The appellant lent her $2,950. She had to sign a promissory note for $5,000. She was escorted back to Hong Kong. On the second day, she could not repay and it was replaced by another one for $6,000. On the third day, he blackmailed her by threatening to get her 9-year-old daughter to prostitute if she refused to go to Macau to discuss her repayment. He escorted her to Macau where she was detained overnight until her husband repaid $7,000 in discharge of the debt. The Court of Appeal adjusted the original higher sentences down to 3 years to run concurrently.

(b) In The Queen v Tung Tai-ching & Another CACC 648/1995, the 2^nd applicant detained the victim for 5 days in the 1^st applicant’s flat pending repayment of a Macau gambling loan. The Court of Appeal agreed with a starting point of 3 ½ years for the 2^nd applicant and 3 years for the 1^st applicant.

(c) The case of HKSAR v Lim Hai Bun, Benny CACC 213/1999 bore almost identical happenings to our present case. The appellant was charged with false imprisonment and blackmail. He was given 3 ½ years’ concurrent sentences. Woo J, who delivered the judgment in the Court of Appeal, explained the sentencing court’s considerations as follows:

22. Each case must depend on its own facts. The offences involved in the present case committed by loansharks or their associates have not been infrequent occurrences in Hong Kong. Even the Judge said that the circumstances of these offences were typical of cases which were very familiar to those who sat in the District Court.

23. The loans which Lau was alleged to have owed to those in Macau are unenforceable in Hong Kong because they were incurred in or for gambling. It is unfortunate that people like the Appellant and the two Defendants in this case are prepared to assist in the collection of such loans, very often using unlawful means to do so. As the Judge had said, those who do and attempt to enforce such loans by illegal means, and in particular by the sort of means adopted in this case, false imprisonment and blackmail, will be severely dealt with by the courts in Hong Kong.

24. Moreover, the loan, which was at the most totalling $200,000, had become $320,000 within a day. By whatever calculation, that loan was increased by $60,000 for the alleged lenders and another $60,000 for the collection service in which the Appellant was involved. This cannot be amply described by the word 'extortion'.

25. In our view, despite the absence of any claimed triad involvement, the sentence of 3 1/2 years in all for the Appellant is in no way excessive. Had any triad element been introduced or any physical violence used, we are of the view that a longer term of sentence should be passed.

It can be seen that triad element and physical violence are aggravating factors to justify a starting point beyond 3 ½ years.

(d) In HKSAR v So Tang Fat CACC 183/1997, the 1^st applicant was convicted after trial of, acting together with others, the false imprisonment of the victim for 40 hours pending repayment of a gambling debt. He had used neither violence nor intimidating expressions on the victim. The starting point was 30 months but he was sentenced to 24 months due to his “reduced” role. The Court of Appeal affirmed the sentence. Unfortunately the judgment did not specify in what way his role was reduced.

(e) In HKSAR v Au Wing Yat HCMA 891/2004, the victim lost money borrowed whilst gambling in Macau. The appellant and his accomplice took charge of him upon his escorted arrival at the Macau Ferry Terminal in Hong Kong. They held him in his home until repayment of the debt. The duration was not mentioned in the judgment, though. He was sentenced to 2 years on the charge of false imprisonment upon conviction. The magistrate commented that the case ought to have been tried in the District Court where a sentence of possibly 3 years could be passed as it clearly involved a loansharking syndicate. The maximum sentence of 2 years based on his magisterial jurisdiction was approved on appeal.

(f) In HKSAR v Yau Chun-man DCCC 840/2008, the defendant had detained the victim until his family repaid his Macau gambling debts. The court adopted a starting point of 2 years.

(g) In HKSAR v Chan Kei-shing DCCC 952/2010, the victim lost a lot of money borrowed whilst gambling in Macau. Upon his escorted arrival back in Hong Kong, the first defendant held him in custody for 16 hours at different locations to explore channels to repay the debt. The judge adopted a starting point of 2 ½ years.

Sentencing D1 – D3

15.There is no evidence of ill treatment of the victim.  Spending 28 hours in false imprisonment was definitely a traumatic experience to the victim, though.  He was forced to borrow about $200,000 to repay his actual gambling loss of around $130,000. That means he was charged an extra sum of about $70,000 within 2 days.  That apparently would not have included, quite understandably, the draw-down interest and fee levied by the finance companies despite the immediate repayment by his family members. 

16.D1 – D3 were each active foot soldiers for the boss behind the scene.    For each of them, I take a starting point of 30 months.  There are no aggravating factors to enhance the sentence.  I reduce it by one-third because of their pleas of guilty. Furthermore, specific to D2 and D3 are their compensation of $7,000 and $4,000 respectively already made to PW1 representing the amount they each had pocketed for committing the present offence.  I give D2 and D3 each 2 months as discount.

17.I sentence D1 to 20 months, D2 and D3 each to 18 months.