HKSAR v. Kong Ka Ming and Another

DCCC665/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 665 OF 2012

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Reasons for Sentence

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1.Kong Ka-ming and Lau Ching-lung, you have been convicted on your own pleas of the charge of criminal intimidation, which is Charge 2 on the amended indictment.

2.The circumstances that form the background to this offence are unfortunately all too familiar to these courts.

3.The victim of the charge, Mr Ma Lok-hang, aged 39, lost all the money he had with him when gambling in Macau.

4.Just as he was on the point of taking the ferry back to Hong Kong, he was approached at the ferry pier by a man who clearly must have been a loanshark.  This man offered him what he described as an interest-free loan.

5.Foolishly, Mr Ma accepted the offer and was then accompanied to a casino by this man, where he signed an IOU note for $20,000.

6.In exchange, he was given gambling chips worth $18,000 and told that the balance of $2,000 was a so-called “handling fee”.

7.Mr Ma then proceeded to gamble away the $18,000 worth of gambling chips.  When he had done so, this man offered him a further sum of $40,000.

8.Mr Ma was again foolish enough to accept this offer and then signed an IOU for $60,000 to represent both the loans he had received.  Almost inevitably, he lost the extra $40,000.

9.The loanshark then arranged another man to accompany Mr Ma back to Hong Kong, where at 9 am, he was met by both of you.

10.He was then taken by you to a number of different places.

11.Initially he was taken to a restaurant, where he was asked to provide the telephone number and addresses of his home and workplace, for the purpose of applying for a loan from a financial institution.

12.He was then taken by you to a videogame centre, because he was told by you that the financial institution in question had not yet opened.

13.You, Kong Ka-ming, asked him to take you to his home to verify his address and obtain some documents, but when he declined, you both took him to a nearby restaurant.

14.From there, you accompanied him on the MTR to a 7-Eleven store in Mei Foo. It was at this point that Mr Ma asked you if he could leave you to go to work.

15.It was then that you, Kong Ka-ming, uttered the threat, which is the subject of the criminal intimidation charge and to which you, Lau Ching-lung, have accepted you were party.

16.You told him in a furious tone that unless he settled the debt, you, Kong Ka-ming, would detain him for two to three days.

17.Not surprisingly, Mr Ma was concerned for his own safety and decided not to leave.

18.Before you left the 7-Eleven store with him, you, Kong, told him that your boss had instructed you that he had to pay $80,000 in order to settle the $60,000 loan.

19.From Mei Foo, you then escorted Ma to his home to get proof of his income.  You, Kong, handed Ma your mobile phone in order that he could speak to your boss, and your boss told him that his application for a loan was unsuccessful, but that he should ask his parents to repay the loan.

20.Soon after that, you, Kong, claimed that you had received a call from the financial institution and that that institution had requested proof of his income, so you then brought him to a convenient store to fax certain documents to the financial institution and then took him to a videogame centre.

21.While you two were engaged in playing a videogame in the videogame centre, he managed to send an SMS message to his girlfriend, asking her to contact the police.

22.The police arrived at 2 pm and arrested you.

23.In considering the appropriate sentence in this case, I had borne in mind that upon your pleas of guilty to the charge of criminal intimidation, the prosecution elected not to proceed on the charge of false imprisonment against you.

24.It is, therefore, upon the charge of criminal intimidation that I must sentence you, not a charge of false imprisonment.

25.That does not mean that I can ignore the circumstances surrounding the threat that forms the subject matter of the charge.  The events before the threat were uttered form the context in which the threat was uttered.

26.The court can also take into account the effect of the threat.

27.Fear for his safety clearly led to Mr Ma remaining with you against his will until he managed to contact his girlfriend and the police arrived three hours later.

28.I have taken into account all that Mr Percy has said on your behalf and the previous cases to which he has referred me.

29.While previous cases can assist the court, it must be borne in mind that the circumstances of each case and each offence are different.

30.The offence committed by you that day was a serious one and must have been very alarming to Mr Ma.

31.I am satisfied that it was not, as Mr Percy suggested it might be, an offence committed on the spur of the moment out of frustration with Mr Ma.

32.It is clear from the fact that two of you met him when he arrived in Hong Kong and what transpired subsequently that your objective was to ensure that he did not leave you until he had repaid the debt.

33.While on the facts that form the basis of the pleas, you may not, prior to arriving at Mei Foo, have informed him that he was not free to leave you, it was obviously part of the joint enterprise that if Mr Ma did attempt to leave or indicate that he wished to do so, he would be subjected to threats of the sort which you, Kong, subsequently uttered.

34.Neither of you could have been in any doubt that you were playing an essential part in the operations of a loansharking operation in Macau. 

35.You would also have been in no doubt that there was no legal or moral justification for demanding $80,000 from Mr Ma, when he had only borrowed $60,000.

36.This sort of loansharking operation in Macau preys on the foolish and vulnerable who visit the casinos there.

37.Since this sort of operation in Macau is unable legally to enforce their loans in Hong Kong, they are dependent on people in Hong Kong to assist in the collection of these loans, who, very often, like you, resort to unlawful means to do so.

38.The courts here have said that those who attempt to enforce such loans by illegal means in Hong Kong will be severely dealt with.

39.I am satisfied that a sentence of imprisonment is inevitable.

40.Having said that, I am aware that there is no suggestion that there were any verbal threats to Mr Ma before the threat that is the subject of the charge, nor is there any suggestion that the threat was relayed to anyone else other than Mr Ma.

41.I take into account that Mr Ma was not subject to any physical violence nor did either of you refer to any triad involvement.

42.I take into account that thanks to Mr Ma, it was a relatively short time - three hours elapsed - between the time when the threat was uttered and the police arrived.

43.In the light of these circumstances and the fact that the charge to which you have pleaded guilty is simply one of criminal intimidation, I adopt a starting point of 2 years’ imprisonment in each of your cases.

44.Dealing first with you, Kong Ka-ming, you played a rather more significant role than Lau Ching-lung.  While it appears you were the person who communicated with Mr Ma, Lau Ching-lung simply reinforced what you said by his presence.

45.You cannot claim in mitigation to be a man of previous good character.  You have been before the courts on a number of previous occasions and have already served a short term of imprisonment.

46.I have read the letters that you have submitted to the court from yourself and the mother of your two young children.  Your offences obviously caused difficulty and distress to your family.

47.The only real personal mitigation in your case is, however, your plea of guilty, which indicates the remorse to which you referred in your letter, for which you are entitled to the usual discount of one-third.

48.I sentence you to 16 months’ imprisonment.

49.You, Lau Ching-lung, played a less prominent role in this offence than the 1st defendant, but your presence was obviously designed to reinforce his threat.

50.I have borne in mind you have not been before the courts before.

51.I take into account the letter you and your stepmother have written to the court.

52.Bearing in mind the lesser role and your previous good character, I am prepared to adopt a starting point of 18 months’ imprisonment in your case.

53.The only significant personal mitigation again is your plea of guilty, for which you are entitled to the usual discount of one-third.

54.I sentence you to 12 months’ imprisonment.