HKSAR v. Wong Man Chung

DCCC 193/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 193 OF 2012

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REASONS FOR SENTENCE

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THE CHARGES

1.The defendant was convicted after trial of the offences of (1) Blackmail[1] and (2) false imprisonment[2]. 

THE ISSUE

2.The prosecution called only 1 witness, who was the victim in both offences (“PW1”).  The defence did not dispute that the incidents encountered by PW1 had actually occurred, and the only issue in this case was one of identity.  A considerable part of the prosecution case was unchallenged. 

SUMMARY OF FACTS

(i) At Macau on 31 July 2011

3.PW1 went to Macau casino at the night of 31 July 2011where PW1 was persuaded by 2 males to apply for a membership with HK$1,000 free mud chips for gambling.

4.PW1 provided personal information for the membership and gambled.  After he lost the free HK$1,000 mud chips, the 2 males stopped him from leaving despite PW1’s refusal to continue to gamble.  They gambled and lost further HK$9,000 chips purportedly on PW1’s behalf.  After negotiation PW1 unwillingly agreed to repay HK$9,000 and was then allowed to leave Macau.

(ii) Shun Tak Centre, Hong Kong

5.Shortly after arriving at Shun Tak Centre through the Macau Ferry Terminal at 7.42 am on 1 August 2011, PW1 was “held up” by the defendant and a male (“B”) inside Shun Tak Centre.

6.B put his arm on PW1’s shoulder and told PW1 not to go or else he will be beaten up.  PW1 was very scared and was escorted to board a taxi.

(iii) Nam Fung Restaurant, Mongkok

7.Later, PW1 was taken to a Restaurant at Mongkok.  The defendant demanded PW1 to pay a sum of HK$39,000 otherwise he would be beaten up or his family will be disturbed.  In fear PW1 provided the defendant the personal particulars of his and his family. 

(iv) PW1’s home, Shek Kip Mei

8.Afterwards, PW1 was escorted by the defendant and B to PW1’s home whereby PW1 handed HK$23,000 cash to the defendant who then further demanded HK$16,000 from PW1.  PW1 was forced to sign on an IOU note written out by the defendant.

(v) Nga Tsin Long Road, Kowloon City

9.PW1 was then brought to Kowloon City by the defendant and B for about 2 hours, during which the defendant demanded PW1 to pay the outstanding amount of HK$16,000.  PW1 loitered around there.

10.The defendant threatened PW1 not to leave or play trick, otherwise he would go to his work place to cause him trouble and to make him lose his job.  As instructed, PW1 withdrew HK$8,000 cash from the bank and paid over the same to the defendant.

(vi) Hui Lau Shan Dessert House

11.PW1 was then brought to a dessert restaurant at Nga Tsin Long Road.  The defendant told PW1 that the outstanding amount had to be settled on the following day.  He then wrote two IOU notes (Exhs P-3 and P-4) with almost identical contents and provided an account number and a phone number to PW1.  The defendant asked PW1 to credit HK$8,000 into that account and to call that phone number after depositing the sum.  Having signed on the IOU note, PW1 was then allowed to leave.

(vii) 2 August 2011, the next day

12.The next day PW1 did as instructed and later that day PW1 found the said two IOU notes he signed in his mail box.

THE AUTHORITY IN SENTENCING

13.In the case of HKSAR v Lim Hay Bun, Benny CACC 213 of 1999, the victim was alleged to have borrowed a gambling loan of $200,000 from lenders in Macau.  He was then escorted back to Hong Kong from Macau.

14.Upon arrival, the appellant joined in and took the victim to a hotel.  He then accused the victim of owing a total sum of $320,000, $260,000 for the lender and $60,000 for his collection service payment.

15.The appellant took the victim’s ID card for photocopying and wrote out an IOU for $320,000 for the victim to sign. Consequently the appellant was charged with false imprisonment and blackmail. The District Judge considered that the appellant had played the leading role in the case and had uttered threats to the victim personally.  A starting point of 4 years’ imprisonment from each of the 2 offences was adopted but was discounted to a concurrent sentence of 3½ years’ imprisonment in view of the appellant’s clear record.

16.The Court of Appeal when upholding the sentences imposed by the District Judge pointed out that:-

“The circumstances of blackmail offences varied and each case should depend on its own facts. The loans which the victim was alleged to have owed to those in Macau were unenforceable in Hong Kong because they were incurred in or for gambling. Those who attempted to enforce such loans by illegal means, and in particular by the sort of means adopted in the present case, false imprisonment and blackmail, would be severely dealt with by the courts in Hong Kong. The loan was increased by $60,000 for the alleged lenders and another $60,000 for the collection service in which the appellant was involved. Despite the absence of any claimed triad involvement, the sentence of 3½ years’ imprisonment in all for the appellant was 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.”

17.The facts of Lim’s case bears a similarity to those of the present case.

18.PW1 in this case was given $1,000 worth of mud chips for gambling.  Having lost them in gambling, 2 males purportedly gambled $9,000 chips on his behalf and lost the same.  PW1 was initially forced into agreeing to pay $9,000 before he was allowed to return to Hong Kong.

19.However, upon arrival in Hong Kong, PW1 was met by the defendant and male B and was forced by the defendant personally to pay a debt of $39,000.  In other words, an initial free mud chip of $1,000 given to PW1 has later become a ‘debt’ of $39,000 “incurred” by him.

20.The evidence has clearly indicated that an organized group was involved.  The defendant was playing a leading role and has actively participated in the offences.  He also uttered threats of violence to PW1 personally.  He forced PW1 to sign the different IOUs at different stages.

THE DEFENDANT’S BACKGROUND AND PERSONAL CIRCUMSTANCES

21.The defendant aged 21 was born in Shenzhen.  He came to Hong Kong with his parents in 2006.  Unfortunately, he had acquired the vice habit of abusing ketamine and cocaine under peer influence when he was in Form 5 and had failed to adjust himself to the local education system.  He was subsequently convicted of a dangerous drug related offence whereby he was put under the supervision of a probation officer for 12 months in March 2010.

22.The defence counsel revealed in his mitigation that the defendant was a mental patient and was receiving out-patient treatment about the time of the offence.

23.The background report prepared by the probation officer has confirmed that the defendant had a psychiatric history and that he was a psychotic outpatient of the West Kowloon Psychiatric Centre.

24.It was revealed by the probation officer that after the expiry of the probation order, the defendant had developed psychosis symptoms of self-murmuring, insomnia and delusion of being spy on in 2011.  He was then admitted to Princess Margaret Hospital for several days and thereafter attended out-patient psychiatric treatment bi-monthly.  Despite the provision of regular out-patient psychiatric treatment, the defendant sought his release of stress through gambling on baccarat at the Macau casino for several times in recent year.

25.Mental condition of the defendant was never relied upon in the defence.  The defence counsel did not see the necessity of obtaining any psychiatric report.  Nevertheless, this court considered it appropriate to obtain two psychiatric reports pursuant to section 45 of the Mental Health Ordinance, Cap 136 before sentencing.

MENTAL HISTORY AND RECOMMENDATIONS OF PSYCHIATRISTS

26.The psychiatric reports prepared by Dr Choi Wing Kit and Dr Oliver Chan revealed that:-

(i) The defendant was a drug abuser for several years. He has tried ketamine and cannabis before. In recent years, he mainly took cocaine 3 to 4 times per week.

(ii) The defendant was initially known to psychiatric service in 2011, when he attended the Accident & Emergency Department. At that time, he presented with irrelevant speech, auditory hallucination and delusions of grandiose and persecutory themes. He was diagnosed as suffering from drug-induced psychosis and was prescribed with antipsychotic medication. However, he had no history of hospitalization.

(iii) He was regularly followed-up at the West Kowloon Psychiatric Centre with some improvement of symptoms. Nevertheless he still kept on abusing cocaine. His last intake of cocaine was on 2 August 2012, the night before the present remand. He showed limited insight towards his drug abuse problem.

(iv) After being remanded, he continued to take medications as prescribed at outpatient clinic and was not observed to have unusual behaviour by the staff of the Correctional Services Department.

(v) Several mental examinations were conducted during his remand. The defendant was impressed to be actively psychotic during the examinations with various symptoms, including delusion of reference and persecution as well as thought broadcasting. He was diagnosed by both psychiatrists as having drug-induced psychosis.

27.Given the psychotic symptoms with deprivation of insight of the defendant, it is the view of both psychiatrists that a period of not less than 3 months in-patient treatment at the Siu Lam Psychiatric Centre under section 45 of the Mental Health Ordinance, Cap 136 is recommended.

MENTAL HEALTH ORDINANCE, CAP 136 (“the Ordinance”)

28.This court is satisfied on the reports of the two psychiatrists received in accordance with section 46 of the Ordinance that:-

(i) the defendant is a mentally disordered person; and

(ii) the nature and degree of the mental disorder from which the defendant is suffering warrants his detention in the Correctional Services Department Psychiatric Centre.

29.The Ordinance seeks to achieve a balance between the interests of the mentally disordered offender and of the public.  If a court imposes a hospital order it will be with a view to facilitating the treatment of such an offender in a secure setting as illustrated in Mahmood Ahmed v Permanent Secretary for Security [2006] HKCU 1613.

30.In the case of HKSAR v Fan Wai Kong CACC 475/2004 it stated that a hospital order protects the public from the risk that would otherwise be created by the release into the community of a mentally disordered offender.  In all such cases, ‘the key issues are the interests of the applicant and the public’. 

31.In HKSAR v Chiu Yu To  [2001] 3 HKC 186, 192, Stuart-Moore VP said:-

“Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.”

32.The Court of Appeal in HKSAR v Lam Chung San CACC 93/2004 has observed that:-

“8. A convicted person who is the subject of a Hospital Order made under the Ordinance is treated as a patient who is suffering mental illness and requires treatment in a secure setting either as protection for the patient himself or for the protection of the general public.”

33.The fact that the offender was aware of what he was about at the time of the offence does not, of itself, make imprisonment more appropriate than psychiatric treatment: R v Chan Kin CACC 421/1989 (Cross & Cheung, Sentencing in Hong Kong, 6^th edition, p 327 and p 329).

34.Having regard to all the circumstances including the nature of the offence and the character and antecedents of the defendant, and to the other available methods of dealing with him, this court is of the opinion that the most suitable method of disposing of the case is by means of a hospital order under section 45 of the Ordinance.

35.As the hospital order intended does not touch the deterrent nature but for the protection of the defendant and that of the general public as aforesaid, the hospital order is imposed on both offences.  This court now orders the defendant be admitted to and detained in Siu Lam Psychiatric Centre for a period of 3 months pursuant to the Mental Health Ordinance Cap 136.