HKSAR v. CHAN SAI TONG

DCCC989/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 989 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to two charges of false imprisonment, charge 1 and charge 2, and one charge of criminal intimidation, that is charge 3. In sentencing I have taken into account the whole circumstances of the case, including its nature and facts, background of the defendant as well as mitigation put forward on his behalf.

2.  The facts of the case are simple though somewhat unusual. It took place on 30 June 2009 in an antiques shop. Under the pretence of watching some jade accessories, the defendant followed PW1, a lady shopkeeper, into a small room. There the defendant grabbed her neck and pointed a five to 6 inches long knife at her. He then tied her hands and neck with nylon strips, used adhesive tape to blindfold her and gagged her mouth with a sock.

3.  At that juncture, another shopkeeper, PW2, returned to the shop. Defendant grabbed and pushed her into the same room. He tied up her hands and legs with nylon strips and gagged her mouth with a sock. During the struggle with the two victims, two vases were damaged.

4.  The defendant then said to the two victims that he wanted to meet the shop owner, a Mrs Ho, and claimed that her husband had made him lose his wife and son. The defendant then threatened PW2 to make a telephone call to the manager of the shop. She did so. Since PW2 spoke in a strange tone, it caused the suspicion of both the defendant and the manager. The defendant blamed her for having played tricks on him, then took her key and left.

5.  The manager soon arrived at the shop and released the two victims. A report to the police was made.

6.  The defendant left for Macau and was arrested on 12 August 2009 when he returned to Hong Kong at the China Ferry Terminal. Under caution, the defendant admitted to have threatened the two victims with a knife and tied them up. He said he knew the shop owner was a kind person and he pretended to be a customer with the intent to meet her.

7.  The defendant did not steal anything in the shop. I was told that he only wanted to talk to the shop owner, whom he learnt is the wife of a successful casino operator in Macau, with the intent to ask her to persuade her husband to engage less in gambling business.

8.  I had indicated to the learned defence counsel that in the light of the brutal behaviour of the defendant towards the two victims, I had difficulties in accepting readily this assertion. However, having been informed by Mr Hou, the Senior Public Prosecutor appearing for the prosecution on the first day of the hearing, that there existed nothing to rebut this assertion, I consider the sentence on the basis as I was told by the defence.

9.  The maximum sentence for the Common Law offence of false imprisonment as provided in section 101I of the Criminal Procedure Ordinance is 7 years’ imprisonment. The maximum sentence for the other offence as provided in section 27 of the Crimes Ordinance is 5 years’ imprisonment. There is no tariff for these type of offences, each case has to be considered on its own merit. In so doing, I have considered the cases referred to me by learned defence counsel. There is so much difference in the facts and I found the assistance of these cases in sentencing is limited.

10.  In the present case the defendant acted alone. There was no indication of any triad or syndicate involvement. However, the incident must be premeditated. The defendant was armed with a knife and displayed it at PW1. The episode lasted more than one hour. It could have lasted longer if not for the behaviour of PW2. The defendant obviously had something aimed at the shop owner. Though I accept what I was told about the defendant’s purpose, it may amount to naivety to assume that things would definitely be peaceful when an encounter between the defendant and the shop owner had taken place.

11.  What the defendant did can never be legitimate. To achieve his purpose he used force on two innocent victims, on each occasion a single lady. He detained them against their will by tying and gagging them and subjected them to substantial fear. What he did shows he was prepared to use force on whoever appeared in the shop. Luckily, the two victims did not suffer any real physical injuries. That said, it must have been a horrifying experience for the two victims. This was so even though the defendant told them that he was not going to rob them. In such a state, he threatened PW2 to make a telephone call to ask yet another person to come. He took away the key of PW2 when he left which undoubtedly would have caused a degree of extra anxiety.

12.  The defendant is now 45 years of age, he is a first time offender. He was a fireman before. He joined the Fire Services Department in 1984 when he was 20 in age after having finished secondary education and worked in other fields for a few years. In 1999 he was promoted to the rank of Senior Fireman and in the same year he received a Director’s Commendation for his strong sense of devotion to duty, bravery, dedication to work, exemplary professionalism and proficiency demonstrated in a rescue service delivered in the Taiwan earthquake. He also received Long Service Medal in 2007. He remained a fire-fighter for 25 years until June 2009 when he tendered his resignation.

13.  He got married in 1988 and has a son. In January 2009, his wife moved away with his son without notifying him and the couple eventually divorced in June. Before the separation, their originally good relationship had turned sour mainly as a result of a dispute over the business which the defendant had started to engage in, allegation of his losing money over gambling which he denied to have engaged, and his alleged extra-marital affair.

14.  The separation was a big blow to the defendant. He started to have insomnia problems. He lost weight significantly and felt lack of energy at work. In May 2009, he started to attend psychiatric clinic but he ceased medication after taking drugs for a few days and received no further treatment. Eventually after having been transferred out of a station in which he had worked for 20 years, he found he had no motive for work and tendered his resignation.

15.  According to the Clinic Psychologist, which I am told is not in dispute, the defendant is now indebted for around $300,000 which he claimed to be a result of loss from business. It is stated in the report of the Clinical Psychologist that the screening test for intellectual ability suggested that the defendant had adequate ability to understand the cause and consequence of behavioural acts. Personality tests revealed that the defendant has an image of a confident, gregarious, organised and efficient person to others but he tends to conceal his own problems, avoid interpersonal conflicts and believes in the inseparable bond in relationship.

16.  The Clinical Psychologist said that with his self‑image of being independent, the defendant tended to keep his distress caused by the worsening marital relationship to his own and after divorce he had to face his change of working environment, loss of home and longstanding financial stress on his own. He appears to be very distressful because of the combination effect of all these and committed the present offence as a mal-adaptive way of help-seeking in the face of his emotional distress. She opines that commission of the offence is related to the defendant’s poor emotion management and mal-adaptive coping skills in handling distress and there appears to be no indication of any major psychological problems underlying his offending behaviours.

17.  The psychiatrist said that the defendant appeared to have suffered from adjustment disorder for a few months both before and at the material time of the offence. The defendant told him that he blamed gambling as one of the factors which led to the breaking up of his family and believed his act of telling the shop owner to persuade her husband to cease the investment in gambling would show his ex-wife that he was not a heavy gambler. The psychiatrist remarked that the defendant does not have any active psychiatric problems at this juncture and no psychiatric treatment is required.

18.  I accept the observation of the Clinical Psychologist that the risk of re-offending appears to be low. The defendant still has the support of his family including his divorced wife and son. The mitigation letter tendered by people such as his colleagues and members of the church, as well as the number of people who attended the hearing to show support shed a favourable light on the defendant.

19.  In sentencing, the court is under the duty to consider the appropriate penalty to be imposed having regard to the type of offence and the circumstances surrounding its commission, bearing in mind the four general principles of retribution, deterrence, prevention and rehabilitation and assess how far each of them is relevant.

20.  In all the circumstances, bearing in mind the previous good character of the defendant, accepting that he was under a state of distress at the time of the offence and that he is now fully remorseful, and having regard to the seriousness of the offence which I have outlined earlier, I am of the view that an immediate custodial sentence is warranted. A non-custodial sentence including a Community Service Order is not sufficient to reflect the seriousness of the case.

21.  Further, I consider a starting point of 18 months for each of the false imprisonment charges is appropriate. There is little to distinguish between the severity of the two offences.

22.  As regards to the charge of criminal intimidation, taking into account the circumstances surrounding the asking of PW2 to make a telephone call, I am also of the view that an immediate custodial sentence is warranted and a starting point of 6 months appropriate.

23.  The defendant is entitled to a one-third discount for each charge for his guilty plea and previous good character. In all the circumstances, I am of the view that this is the extent of discount the defendant is entitled to. I accept that at the time of the offence the defendant was labouring under a degree of distress, however, the nature and degree of it do not justify giving the defendant any further discount.

24.  There exist no sufficient special circumstances which justify ordering a suspension of the sentences.

25.  Based on the matters aforesaid, I sentence the defendant as follows:-

Charge 1, 12 months’ imprisonment;

Charge 2, 12 months’ imprisonment;

Charge 3, 4 months’ imprisonment.

26.  Taking into account totality and circumstances in which these three offences were committed, I order all the three sentences to run concurrently. As a result, the defendant is to serve a total of 12 months’ imprisonment for these offences.