HKSAR v. Chung Soo Foon

DCCC 579/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 579 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of Robbery and one charge of False Imprisonment. Particulars of the robbery charge are that the defendant on 18 July 2012 together with another person robbed Chu Ka Yan of one bank card and cash of $10,300. Particulars for the false imprisonment charge are that they together on the same day unlawfully and injuriously imprisoned the same Chu Ka Yan and detained her against her will.

Summary of Facts

2.The victim got into a New Territories taxi at around 09:55am on 18 July 2012 outside her home at Tsui Lai Garden, Fung Nam Road in Sheung Shui. The taxi was driven by an unknown person who is now on the Police’s wanted list.

3.Instead of taking the victim to her intended destination, the driver drove to a quiet unnamed road in Kau Lung Hang, Tai Po, got out and used a knife to threaten the victim and declared robbery. He tied up the victim’s hands behind her back with plastic straps, blindfolded her, put a cap on her head and seated her into the front passenger seat of the taxi.

4.The victim felt the taxi driving around, eventually stopping at no.1 Tin Tan Street, Tin Shui Wai. The wanted person then told the victim that an aunt will be asking the victim for money. The defendant then joined the wanted person and sat in the back. The wanted person drove the taxi to another quiet road and stopped.

5.The victim was then moved to the back seat and the taxi was driven for about 30 minutes to another location. During this part of the journey, the victim had body contact with the defendant and realized that she was a woman.

6.The taxi was driven to no.118 Lee Uk San Tsuen, Ping Che Road, Ta Ku Leng. The woman made the victim walk up to the second floor of a tin hut and was put in one of the rooms there, with her hands still tied up and blindfolded.

7.The wanted person then demanded a sum of around $10,000 from the victim, but was told that her parents worked in mainland China and she will only be able to ask her boyfriend for help.

8.Between 11:43am and 12:30pm, the victim called her boyfriend 7 times and asked him to deposit $8,000 into her HSBC account. The wanted person also talked to the boyfriend over the phone and said that if the money was received, the victim will not be harmed. The boyfriend deposited $8,000 into the account at around 3:35pm.

9.Prior to the deposit, at 1:13pm, the defendant had left the tin hut with the victim’s ATM card and used it to withdraw $9,500 from the victim’s HSBC account and then returned to the tin hut and gave the money to the wanted person.

10.Later on, they took the blindfolded victim back into the taxi, drove to a public toilet at Ng Chau Nam Road, Ping Chi, Ta Ku Ling and the defendant jostled the victim into one of the cubicles. The defendant took down the blindfold and gave the victim back her handbag. The wanted person and the defendant then left the public toilet in their taxi.

11.The defendant managed to get on to a public light bus and got to Fanling Railway Station at 3:13pm where she met up with her mother and boyfriend. Together they reported the matter to the Police at Sheung Shui Police Station.

12.The defendant was arrested at her residential address, i.e. the place where the wanted person had picked her up earlier. Under caution, the defendant said that she only took the ATM card to help the wanted person to get the money.

13.At the subsequent cautioned video recorded interview, the defendant said that she received a call from the wanted person and she went downstairs thinking that they were going out for breakfast. She confirmed what the victim had gone through after the defendant had boarded the taxi. It was the wanted person who asked the victim for the PIN code of the ATM card, and the wanted person who asked the defendant to get the money. The defendant took a taxi to Luen Wo Hui to make the withdrawal, bought some bread for the victim, took a taxi back, and then handed over the money to the wanted person.

14.After they had put the victim inside the public toilet cubicle, the defendant threw away the ATM card and the cap that they had made the victim wear. The defendant claimed that she saw the wanted person deposit $15,000 into the bank account of a loan shark. The defendant rented the tin hut for rearing dogs.

Previous convictions

15.The defendant is of previously clear record.

Mitigation

16.The defendant is 56 years old. She was born in Hong Kong and was educated up to Form 1 level. She worked as a garment worker after leaving school. Later on she also worked in a hospital canteen and then an elderly home, she was unemployed at the time of arrest. The defendant has been in remand since 15^th March 2014.

17.The defendant is divorced and lives alone at Room 1520, Wah Yuet House, Tin Wah Estate, Tin Shui Wai. She was relying on the support of Comprehensive Social Security Assistance and was receiving an allowance of $3,300 per month.

18.Upon the defendant’s arrest in March 2014, she quickly confessed to the offences, led the Police to the various places where the offences took place. She was of clear record before this incident and she realized that she will be facing a long time in prison but wishes for leniency.

19.The wanted person was the cohabitee of the defendant at the time of the offences. In 1977 when the defendant was 17 she got married and gave birth to 3 children, now 36, 34 and 31. Unfortunately her first husband became a heavy gambler and lost a lot of money and they divorced in 1993. Custody was given to the father who remarried in mainland China and the 3 children returned to Hong Kong to live in a small flat.

20.In 1998 the defendant met her second husband. The children had left the family home by then and seldom contacted the defendant. They however objected to the defendant’s second marriage. The defendant ignored them and got married anyway. Her second husband turned out to be another gambler. They divorced in 2003. The defendant was all alone and her children seldom visited her.

21.In around 2005 and 2006, the defendant met the wanted person who then became her boyfriend and they cohabitated. She found him caring and relied on him emotionally and psychologically. In 2008, the defendant began to suffer from depression and had to seek medical care.

22.The defendant’s medical report dated 25^th June 2014, prepared by Dr. Poon of Castle Peak Hospital was produced in mitigation. The defendant had been under the care of Dr. Poon since November 2010. According to Dr. Poon, the defendant began to engage mental health service since March 2009 and was diagnosed to suffer from Dysthymia (persistent mild depression). She was treated with anti-depressant and received regular follow up treatment at the psychiatric outpatient clinic. The treatment was effective and there was gradual improvement. The defendant was in a better mood and was motivated to visit her friends and showed more interest in activities such as shopping and keeping dogs.

23.During follow up treatment in 2013, the defendant reported on and off stress linked to her relationship with her boyfriend. The defendant coped by going to the temple. Her mental state remained stable with no relapse of depressive symptoms.

24.The defendant’s last psychiatric follow up treatment was on 24^th April 2014. Mental state examination revealed a neutral mood. Her speech was coherent and she said that she was coping well in prison. There were no psychotic symptoms and the defendant is in remission. The defendant was nevertheless given daily anti-depressant medication as well as medicine to help her sleep when required.

25.Ms. Sim put forward the defendant’s version of her mental state on the day of the offences.

26.On the day of the offences, the defendant received a phone call from her boyfriend and went downstairs, thinking that they were having breakfast as usual. When the defendant saw the victim in the taxi, she realized what was happening, because she knew that her boyfriend was in dire financial difficulty and owed money to loan shark. The defendant was under her boyfriend’s influence and was not able to resist him, finding herself going along with the flow of events. The defendant had also taken medication that morning and she just went along. She was under the influence of the boyfriend at the time. She could not do anything to oppose or to expose the boyfriend because in her mind he was the man who loved her and took care of her and she could not do anything to oppose him and just went along. In relation to the knife that the victim thought she felt, the defendant did not do anything with the knife and everything was done by the boyfriend.

27.Since the defendant’s arrest, her children came back to her and they resumed communication. The defendant has had time to reflect on her life and realized that her dependence on men must stop.

28.After the defendant pleaded guilty to the offences, she indicated her willingness to testify against his boyfriend the accomplice. A non-prejudicial statement was taken on 23 September 2014. Legal advice was sought and it is the view of the prosecution that the statement will be useful for charging the wanted person should he be arrested in Hong Kong.

29.This is however unlikely to be in the near future. Hong Kong Police had gotten in touch with the Guangdong Provincial Public Security Department and was informed that the defendant’s boyfriend was arrested in mainland China on 18 September 2013 for drug trafficking and there had been formal legal proceedings against him. Further details are not yet available but it is likely that the boyfriend will be facing imprisonment for about 10 years or more as a result. It would therefore be impracticable to postpone the defendant’s sentence to until after the apprehension and prosecution of the boyfriend in Hong Kong.

Duress

30.It is the defence’s submission that the defendant was under duress at the time of her commission of the offences. It is not the case that the duress was such as to constitute a defence, but the defendant had not exercised the freest of wills when she committed the offence and this is, according to Ms. Sim, relevant to her mitigation.

Sentencing cases

31.The prosecution referred me to 4 cases.

32.In the case of The Queen v Tsui Yun Chak and others, CACC 333/1991, the 3 applicants were charged with false imprisonment, assault occasioning actual bodily harm and criminal intimidation. They were each sentenced to a total of 2 years’ imprisonment after trial. The learned trial judge considered the false imprisonment to be the most serious of the charges and imposed on that offence the 2 years sentence.

33.The facts of Tsui Yun Chak are serious. The victim owed money to some people. The rate of interest charged was so high that the victim was unable to repay the debt and he closed down his business, left Hong Kong and went to China. Upon his return, he was arrested for the checks that he had issued before which were dishonoured.

34.On the day of the offences, the victim met with his creditors at a restaurant to negotiate repayment. An immediate payment of $200,000 was demanded but there was no possibility that the victim could have met that demand. The victim was then assaulted, taken from the restaurant, forced into the back seat of a car and driven to the Cheung Sha Wan Wholesale Vegetable market.

35.When there the victim was brought to the canteen where he was surrounded by a group and was unable to make his escape. He was required to give the telephone number of his mother and was told that if repayment was not made he would be beaten to death and his body thrown into the sea. He was against assaulted. He was then asked for his wife’s address and was told that his creditors will go to his wife to get the money. The victim was then forced back into the car and taken to the estate where the wife lived.

36.When there, one of the applicants entered the flat. The victim managed to close the iron grille shutting out the other 2 applicants from the flat. The applicant inside the flat assaulted the victim and his wife. When the wife’s sister attempted to telephone for help the applicant whipped out the telephone cord. The wife tried to get out to alert her neighbours but was assaulted by the applicant inside the flat. The applicant made the $200,000 demand again but the victim told him it was impossible for him to repay that amount. The applicant threatened to kill him and further assaulted the victim. The applicant tried to open the door to let the other 2 applicants in but failed. The Police then arrived on the scene.

37.In passing sentence, the trial judge took the view that the offences were “extremely serious” and that it “was quite clear that it was a planned and consistent attempt to retrieve from the victim a sum of money that all persons involved knew he did not have”. The trial judge included in her sentence an element of general deterrence. The applicants’ application for leave to appeal against sentence was refused.

38.The second case that the prosecution referred me to is the case of The Queen v Kwok Kai-chun CACC 485/1987 where the applicant was found guilty of one charge of false imprisonment and one charge of robbery. There the false imprisonment “lasted for something like 12 hours”. The applicant was not physically present when the robbery took place although the jury by their verdict had found that he was a party to the common enterprise. The other parties to the crime were separately tried and on the false imprisonment counts they were sentenced to 7 years’ imprisonment. The Court of Appeal found that a proper sentence on the false imprisonment count was one of 5 years’ imprisonment after trial. The details as to the false imprisonment are not set out in the judgment.

39.The third case is the case of The Queen v Yu Wing Wah, CACC 745/1995, where the applicant faced one count of false imprisonment and one count of robbery as well. The facts were that while the victim was almost home he was grabbed by a number of men, one of whom holding a knife, and was forced against his will to the compartment of a goods vehicle. The applicant was waiting inside the rear compartment and helped to pull the victim in and then guarded him. When the victim called for help he was subdued by the applicant and bound hand and foot. The vehicle was then driven away and after about 5 minutes it stopped. Two men entered the rear compartment and robbed the victim in the presence of the applicant. They then left the applicant to guard the victim for about 20 minutes. The applicant then alighted leaving the victim tied up but was almost immediately arrested.

40.$200,000 was stolen, among other things.

41.A starting point of 3 years’ imprisonment was adopted for the false imprisonment and a starting point of 7 and a half years’ imprisonment was adopted for the robbery. The learned trial judge considered an overall starting point of 10 and a half year when putting the two offences together appropriate. The sentences after plea for the 2 charges were ordered to run consecutively with the resulting sentence of 7 years’ imprisonment.

42.The starting points of each of the 2 charges were not disputed on appeal, merely the overall starting point of 10 and a half years. 

43.The Court was satisfied that the overall starting point of 10 and a half years was within the range of an appropriate sentence, albeit at the top end, and refused to interfere with the 7 years final sentence imposed by the trial judge.

44.The last case cited by the prosecution is the case of HKSAR v Lim Hay Bun Benny [2001] 1 HKC 612. There the appellant was charged with one count of false imprisonment and one count of blackmail. The victim was alleged to have borrowed a gambling loan of $200,000 from lenders in Macau and was escorted back to Hong Kong where he was taken to a hotel. The appellant told the victim that he owed a total of $320,000, being $260,000 for the lenders and $60,000 for the appellant’s collection service. The appellant obtained the victim’s identity card and made a copy. The appellant then wrote out an IOU for $320,000 on the photocopy and asked the victim to sign. The trial judge adopted a starting point of 4 years’ imprisonment for each of the 2 charges, discounted to 3 ½ years for the appellant’s clear record and ordered the sentences to run concurrently.

45.The Court of Appeal found the sentences appropriate and opined that had any triad element been introduced or any physical violence used, a longer term of sentence should be passed.

Defence authorities

46.Ms. Sim first of all referred to the section on duress in Sentencing in Hong Kong, Sixth Edition 2011, at page 386 to 387. There the learned editors referred to various cases where an accused who committed an offence as a result of coercion, pressure or undue persuasion may be considered as having reduced culpability.

47.The situations include where the accused is young or otherwise vulnerable to the influence of others; where the accused had been borne into the commission of the offence by her husband and she participated in it out of a misguided sense of loyalty; where there are two accused, the weak character of one accused may fall for consideration; where one accused is dominated by another.

48.Ms. Sim then cited the case of AG v Wong Yim-ping and another, CAAR 7/1994. This is the Attorney General's application for review of the sentences for manslaughter passed on the two respondents (hereafter referred to as R1 and R2 respectively). The sentence against R1 was seven years' imprisonment. That imposed on R2 was eight and a half years' imprisonment. On appeal, the Court of Appeal increased R1's sentence to twelve years and that of R2 to fifteen years.

49.The victim was a 21 year old young woman. R2 (a man) was her employer and R1 (a woman) was her colleague. The hotel room where the manslaughter took place was booked by R2.

50.The plan was for R1 to lure the victim to the hotel on the pretext of celebrating R1's birthday. Then, while R2 waited in an adjoining room, R1 would first make the victim drunk. R1 would then render the victim unconscious by administering chloroform, following which R2 would enter the room, indecently assault the victim and record the act on videotape. The object of the evil scheme was to gratify R2's perverted sexual inclinations.

51.In R1’s mitigation, five mitigating factors were identified, namely, that it was her confession which led to R2's confession, that she had indicated her willingness to be a prosecution witness, that she was under R2's domination, that what was done was for R2's gratification and not hers, and that she had a young son.

52.There was no discussion of the mitigating factor of R1 being under R2’s domination, but by way of the lower sentence imposed on R1, the Court must have accepted that it was one of the mitigating factors to be taken into consideration.

53.Ms. Sim also referred to the case of HKSAR v Kwok Cheuk Man [2005] 3 HKLRD.  There the applicant pleaded guilty to, inter alia, robbery. The offence took place at 3am when he entered a convenience store, holding an object that resembled a napalm and a cigarette lighter, and robbed $182. No one was injured. The applicant had a clear record and said he committed the offence because he was heavily indebted.

54.Ms. Sim relies on this case for the fact that Court of Appeal found that given the fact that applicant was of previously clear record, that he committed the crime because he was under grave financial difficulties and suffered great hardship and pressure, that the offence was committed during a quiet time of the day and the object that the applicant used could not possibly had caused any casualties, the court was prepared to make an exception and reduced the applicant’s sentence from 5 years and 4 months to that of 4 years and 6 months’ imprisonment.

Sentence

Charge 1

55.The maximum sentence for robbery is that of life imprisonment. In the case of HKSAR v Mo Kwong Sang [1981] HKLR 610, the Court of Appeal laid down guidelines for armed robbery. The guidelines are applicable to our present case as the wanted person had brandished a knife in front of the victim and declared robbery.

56.In relation to the defendant, the victim had heard the wanted person said to the defendant to use ‘something’ if the victim moved. I find that the irresistible inference given the fact that they were inside the small confined space of the taxi and given the words of the wanted person, the defendant must have been aware that a knife was being used to threaten the victim. The defendant therefore must be aware that she was part of an armed robbery and she will be sentenced as an accomplice to the armed robbery.

57.I also find that the defendant’s role is not such as to lower her culpability in the joint enterprise. She helped to guard the victim, allowed her boyfriend to use her tin hut to hold the victim, used the ATM card to make the withdrawal and handed over the money to the boyfriend. Without her assistance, it would have been difficult for the boyfriend to control the victim and obtain the money at the same time.

58.In addition to being an armed robbery, there are other aggravating factors as identified in Mo Kwong-sang that are present in our case. The victim was tied up with adjustable plastic straps and blindfolded and the robbery involved more than one person.

59.Applying the Mo Kwong-sang guidelines, I find that a starting point of 6 and a half years’ imprisonment is appropriate. 

60.I find that the defendant has successfully made out a case of her acting under the influence of her boyfriend when she committed the offence and she may not have acted under the freest of will when she committed the offences. I have taken into consideration her mental state at that time when arriving at this conclusion, as well as the defendant’s personal history as disclosed in mitigation. I will lower the starting point by 6 months for that.

61.I will further reduce the sentence by another 12 months for the assistance that the defendant is willing to render the police, including her full and detailed confession when interviewed by the Police, her leading the Police to the various places that the victim had been brought and her non-prejudicial statement that would be useful should the boyfriend return to Hong Kong and was apprehended and charged for the offences.

62.The defendant is therefore sentenced to 40 months’ imprisonment on charge 1 after granting her the one-third discount for her guilty plea.

Charge 2

63.The maximum sentence for false imprisonment pursuant to s.101I of the CPO is that of imprisonment of 7 years and a fine.

64.The victim was falsely imprisoned for at least around 4 hours, this is from the time when she had her hands tied by the wanted person and shoved into the front seat of the taxi, to when the victim left the public toilet cubicle.

65.The facts in our present case are similar to that of the case of The Queen v Yu Wing Wah (supra). The time of the false imprisonment in our present case is longer than Yu Wing Wah and involved not just holding the victim in a vehicle, but also moving the victim from the vehicle to a tin hut where the victim was continued to be blindfolded and hands being tied up.

66.I find that a starting point of 4 years’ imprisonment should be adopted on these facts. For the same mitigating factors referred to in charge 1, I will lower this starting point to that of 3 years’ imprisonment, which is then discounted to that of 2 years’ imprisonment for the defendant’s guilty plea.

Totality

67.On the point of totality, I am mindful of the judgment of the Court of Appeal in Yu Wing Wah where it was found that although there were overlapping elements in the commission of the 2 offences, “there was no overlapping as regards the real gravamen of the false imprisonment count, i.e. the rendering immobile and the removing of the victim from the scene and the leaving of him in that condition until he was released by the Police. These serious features of that offence play no part in an ordinary robbery and are not ones to which the Mo Kwong-sang guidelines have application.”

68.I am also aware that in the earlier case of Kwok Kai-chun, the Court of Appeal found that the sentences for the false imprisonment and robbery should run concurrently.

69.I am further informed by Mr. Tso for the prosecution that their view is that the false imprisonment and the robbery took place as a single transaction and he agrees with Ms. Sim’s submission that the sentences should be made concurrent.

70.Given the view of the prosecution and the fact that a concurrent sentence was also considered appropriate by the Court of Appeal in another case, I find that the benefit of any uncertainty in the legal position should go to the defendant under the circumstances of the case.

71.I will therefore order that the sentences to be served concurrently. The defendant is sentenced to a total of 40 months’ imprisonment.