HKSAR v. TSOI CHIT TSANG (also known as TSOI WAI NGAI and JOHNSON TSOI)

DCCC 285/2022

[2022] HKDC 1360

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 285 OF 2022

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to one charge of “failing to surrender to custody without reasonable excuse”, contrary to section 9L (1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.

Admitted Summary of Facts

2.  The Defendant was one of 5 Defendants in DCCC 1240 / 2010.  The case involved a total of 7 charges of “Dealing with property known or reasonably believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organised and Serious Crimes Ordinance, Cap.  455.  Only two charges related to this Defendant (Charges 1 and 7).  The Defendant pleaded not guilty to those charges.  He was granted court bail and the trial commenced on 9 July 2013.

3.  The Defendant failed to appear in Court on 22 July 2013 (The 4^th day of the trial).  The Court was informed that the Defendant had left Hong Kong the previous evening to travel to the Mainland and had not returned.  A warrant of arrest was issued.

4.  The Defendant had not been detained by the Mainland authorities.  The trial continued in his absence.  On 31 October 2013, the Defendant was convicted of both charges after trial and was sentenced to a total of seven years’ imprisonment.

5.  On 22 January 2022, the police intercepted a speedboat entering Hong Kong waters near Long Kwu Tan.  The Defendant was found on the speedboat.  He was intercepted by the police for enquiry.  Subsequently, his identity was confirmed and the warrant of arrest was executed.

6.  On 23 January 2022, a record of interview was obtained from the Defendant.  Under caution for failing to surrender to custody as shall have been appointed, he remained silent.

7.  At the material time of the offence, the Defendant, being a person admitted to bail, without reasonable cause, failed to surrender to custody on the 22 July 2013.

The Defendant’s Background

8.  The Defendant was born in Fukien in 1968 and is now 54 years old.  He settled in Hong Kong in 1984 and completed Form 5 education here.  After completion of his secondary education, he operated his own textile factory and was also involved in the supply of drainage systems.  Thereafter, he ran a general trading business. 

9.  His father died when he was 15 years old.  He married his wife in 2000 and they have 4 children (3 daughters aged 21, 14 and 13 and a son aged 11).

10.  The Defendant had a clear record prior to his conviction in DCCC 1240/2010.

DCCC 1240/2010

11.  There were 5 Defendants in those proceedings.  The other defendants were all members of the Defendant’s family.  The Defendant’s elder sister and brother-in-law were D2 and D3 respectively.  The Defendant’s mother was D4 whilst his wife was D5.  The facts of that case were very serious.  There were a total of 7 charges of “Dealing with property known or reasonably believed to represent proceeds of an indictable offence”, involving hundreds of millions of dollars, making use of a total of 28 of bank accounts and 5 companies.  D2 and D3 pleaded guilty to the charges they faced and were sentenced to 5 years and 4 months’ imprisonment on 16 August 2013.

12.  The Defendant absconded on 22 July 2013 (the 4^th day of that trial)  and was convicted in his absence. 

13.  In his judgment, notwithstanding that the amounts involved in the 2 charges of which the Defendant was convicted were less than the amounts involved in the offences to which D2 and D3 pleaded, the Defendant was in fact a central figure in the money laundering enterprise.  He was of the view that the appropriate sentence was 8 years’ imprisonment but because his jurisdiction was limited, he sentenced the Defendant to 7 years’ imprisonment on 31 October 2013. 

14.  In other words, the Defendant has been at large until he was intercepted entering Hong Kong illegally on a boat on 22 January 2022 (ie about 8 1/2 years).

Mitigation

15.  In mitigation, Counsel submitted that the Defendant has to look after his mother, who is now 79 years old.  He also has to care for his wife and son, who both have moderate psychological issues. 

16.  According to a Psychological Assessment Report produced by the Defendant, his son’s intellectual ability was within the “Extremely Low Range” with “Moderate Grade Intellectual Disability”.  The parents are advised to provide him with more opportunities to explore the community and new interests. The Defendant also produced a “Medical Letter” which stated that his wife has been suffering from insomnia since April 2021 and that her condition has been deteriorating “likely related to the family stress and her husband facing litigation issues”.  Counsel asked the Court to take into account the Defendant’s family circumstances and prayed in aid of paragraphs 30-130 to 30-142 of “Sentencing in Hong Kong” (10^th Ed)  Cross & Cheung. 

Discussion

17.  The maximum sentence for this offence upon conviction on indictment is 12 months’ imprisonment (See section 9L (3)  of the Criminal Procedure Ordinance).  There are no sentencing guidelines or tariffs.

18.  In HKSAR v Lam Kin Chung [2007] 2 HKC 451, the appellant was convicted on his own plea of a single charge of failing to surrender to custody without reasonable excuse (the relevant offence).  At the time of commission of the relevant offence, he was the subject of a sentence of 3 months’ imprisonment that had been suspended for 2 years, which was imposed for an earlier offence of theft.  The applicant’s failure to surrender lasted 9 years and 4 months until he was re-arrested by chance.  The trial judge sentenced him to 6 months’ imprisonment, without stating a starting point or whether the applicant was given a one-third discount for his guilty plea.  The applicant sought leave to appeal against sentence, arguing that he had not been afforded the one-third discount to which he was entitled.  He also explained that he had to look after his girlfriend and his son in the Mainland and conceded that he was determined not to surrender to custody at the time of the offence in which bail was granted.  In refusing leave, the Lunn J stated that the applicant’s desire to avoid imprisonment for theft and the activation of the suspended prison term were highly relevant to a consideration of the culpability of the applicant in the commission of the offence.  The fact that the applicant had succeeded for 9 years and 4 months in avoiding the execution of the warrant of arrest, he did not surrender to custody but was re-arrested by chance and that he awaited charges in a trial in April 2007 were also noted.  In the circumstances, the imposition of a sentence of 6 months’ imprisonment on the applicant was entirely appropriate.

19.  Although the period of abscondance in that case was longer, the other circumstances of the present case are much more serious.  The charges faced by the Defendant in DCCC 1240/2010 and the expected sentence were much more serious.  Not only did the Defendant fail to surrender to custody, he was intercepted when he tried to return to Hong Kong by illegal means. 

20.  Apart from his guilty plea, the Defendant stated that he has to look after his family members who are either elderly or had medical issues.  Even the excerpt from “Sentencing in Hong Kong” relied on by counsel does not support this as a mitigating factor.  The excerpt is as follows:

“Family Circumstances

[30-130] Family Circumstances are often prayed in aid in mitigation by convicted persons. However, ‘family hardship which is usually attendant upon the conviction is to be viewed as a part of the price an accused must pay for the crime’: HKSAR v Li Kwok-ching [2005] HKCU 1702 (HCMA 1132/2005, 30 November 2005, unreported). Those who commit offences should keep in mind ‘the principle that the adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account’: HKSAR v Chan Kin-chung [2002] 4 HKC 314, 321. Family circumstances, in any event, ‘are matters which a wise man would take into consideration before he commits an offence and not after’: HKSAR v To Yiu-Cho [2009] 5 HKLRD 309, 311, [2009] HKCU 1122. If a family really faces hardship as a result of the offender’s imprisonment, it ‘can always ask for help of the Social Welfare Department should a need arise’: HKSAR v Thapa Kishon [2013] 4 HKC 524, 527.

[30-131] an accused must appreciate that his family will suffer ‘if he is caught and convicted’: R v Shipra [1988] HKC 412, [1988] 2 HKLR 493, 494. If the accused is convicted and sentenced as a rapist this may have unfortunate consequences for his family, but ‘this is often the tragedy in such cases’: HKSAR v Chan Tung-hing, Band [2010] 3 HKC 304, 307; HKSAR v CYL [2016] 3 HKC 531, 537. In HKSAR v Shun Chung-wai [2002] 2 HKLRD 81, 87, Lugar-Mawson J said:

‘This court has said many times that family circumstances should be disregarded, particularly when sentences for serious offences are concerned’.

[30-132]… A convicted drug trafficker cannot expect to ‘pray in aid the need to look after her daughter, unfortunate for the daughter as that maybe’: HKSAR v Wong Cheuk-Lam [2002] HKCU 28 (CACC 280/2001, 11 January 2002, unreported; HKSAR v Law Hoi-tan, Wing [2014] 5 HKLRD 517, [2014] HKCU 2035. If serious crime is involved, personal factors may have to be disregarded: Attorney General v Chan Chi Mei-Wah [1990] 1 HKLR 199, 193, [1990] HKCU 284. In Attorney General v Yan Chun-fong [1993] 1 HKCLR 42, 45, [1993] HKCU 570, Cons VP explained:

We also have in mind the need to deter others, even those with happy family backgrounds and successful children, who might, in severely straitened circumstances, attempted to resort to crime to solve their difficulties.”

21.  Family circumstances may be taken into account only in certain exceptional circumstances (See paras 30-133 to 30-142].  However, in my view there are no exceptional circumstances in the present case.  As stated above, the trial judge found the defendant to be the prime mover in the money-laundering enterprise.  The Defendant’s mother, wife, elder sister and brother-in-law were all defendants in their case.  The Defendant absconded and left Hong Kong mid trial and left his family to face the music.  He was gone for almost 8 1/2 years, during which he cannot physically take care of them.  The Defendant’s son was born on 24 October 2012.  When the Defendant left for China in July 2013, his son was only a few months old.  In other words, the Defendant is basically a stranger to his son.

22.  Apart from his guilty plea, there are no mitigating circumstances.  Having considered the facts of this case, the appropriate starting point is nine months’ imprisonment.  The Defendant has pleaded guilty at the first opportunity, and is entitled to a one-third discount.  The sentence is reduced to 6 months.

23.  The defence conceded that the limitation in the proviso in section 82(2)(a)  of the District Court Ordinance only applies when the sentence was passed on the same occasion and that subject to the question of totality, the court is entitled to order the sentences to run consecutively or partially consecutively. 

24.  In considering totality, I take into account the trial judge stated that the facts in the DCCC 1240/2010 warranted a sentence of 8 years.  He only sentenced the Defendant to 7 years because of the jurisdictional limit.  The present offence is wholly distinct from the charges in DCCC 1240/2010.  The Defendant committed the offence whilst on bail and the Defendant was only re-arrested by police when he tried to enter Hong Kong illegally.  In my view, it is only appropriate that the sentence in this case be served wholly consecutively to that in DCCC 1240/2010 and I so order.

25.  The Defendant is sentenced to 6 months’ imprisonment, to be served consecutively to his sentence in DCCC 1240/2010.