HKSAR v. CHAN YAM WAI

DCCC 678/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.678 OF 2012

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Reasons for Sentence

 

1.  The defendant pleaded guilty to one charge of False Imprisonment (charge 1), two charges of Assault Occasioning Actual Bodily Harm (charge 2, 3) and two charges of Theft (charge 6, 7).

Facts

Charge 1

2.  The victim Ms. Wong is 24 years old. She and the defendant met in 2004 and became friends.

3.  In April 2012, the defendant requested Ms. Wong to rent a unit in her name for the defendant in return for $1,000. Wong agreed and did so.

4.  About 1 month later, on 3^rd May, the defendant requested to meet with Wong at a café at around 3pm. Wong went and they had a chat. At around 5:30pm, when Wong was leaving the café, 2 men unknown to Wong appeared and held Wong’s arms on each side. Wong tried to cry for help but the 2 men threatened her that if she resisted she will be beaten up. Wong was scared and so did not put up much resistance.

5.  The 2 men then escorted Wong to the unit that she had rented in her own name for the defendant. The defendant followed them.

6.  Once they arrived, the 2 men pushed Wong into one of the bedrooms there, took Wong’s handbag and warned her not to try to leave. Inside Wong’s handbag were 2 mobile phones, her identity card, China travel permit, 2 ATM cards for the Bank of China and HSBC respectively and $1,500 cash.

Charge 2

7.  Later on the same evening, the defendant entered the bedroom where Wong was held and accused Wong of having stolen something from him. Wong denied. The defendant then repeatedly hit the head and hands of Wong until she admitted to the stealing.

Charge 3

8.  On the second day, 4^th May, the defendant again repeatedly assaulted Wong on her head and hands until she admitted to having stolen from the defendant.

9.  3 days later on the 7^th May, the fifth day of her captivity, the defendant suddenly appeared in the bedroom in the afternoon demanding Wong to give him the PIN code of her Bank of China ATM card or else he will assault her again. Wong was scared and complied.

10.  Finally, at around 4pm on 8^th May, on the sixth day of her captivity, Wong found the unit deserted and so she took her handbag and left.

Charge 6 and 7

11.  Wong returned home the same day at around 5:15pm and found that the 2 mobile phones and $1,100 cash that was in her handbag had gone. Later on, she also found out that someone had withdrawn $4,800 from her Bank of China account at around 3:45pm on 7^th May, the day when the defendant had demanded her to tell him the PIN code to her ATM card.

12.  Wong reported the matter to the Police on 9^th May, 2012. Medical examination revealed that Wong suffered multiple bruises on her face, chest and limbs, abrasion injuries to her upper back and lower limbs, subconjunctival hemorrhage in her left eye. She was treated and discharged on the same day, having been given 4 days’ sick leave.

13.  The defendant was arrested on 23^rd May 2012 with one of Wong’s mobile phones found on his person. The defendant was identified by Wong in an identification parade held on 13^th June 2012.

Previous convictions

14.  The defendant has 2 previous convictions, neither is similar to any of the present offences. His latest conviction was in September 2010 when he was fined $1,000 for possession of dangerous drugs.

Mitigation

15.  The defendant is 29 years old with a 72 year old mother. The defendant is single but before he was remanded in custody he had a girlfriend who was pregnant with his child. They had however broke up since and she had an abortion. The defendant was working on a casual basis earning a few thousand dollars each month.

16.  It was pointed out in mitigation that the defendant had known Wong for some 8 years. According to counsel, Wong had stolen around $5,000 from the defendant and the defendant had foolishly chosen to deal with the matter in his own way.

17.  Counsel noted that the false imprisonment was for 5 days, which is a matter for the court to consider. It was also suggested that this case differs with the usual loan shark false imprisonment cases where the victims in those cases would usually be kept in a place unfamiliar to them, albeit for only a few hours. Here, Wong was kept in the unit that she had rented on the defendant’s behalf and which she had been to before. Lastly, it was pointed out that the defendant had left $400 for Wong to get home after her release.

Victim Impact Report

18.  A victim impact report was ordered to be prepared on Ms. Wong prior to sentencing. According to the psychologist Dr. Lee, Wong suffers from mild to moderate degree of Post Traumatic Stress Disorder.

19.  From the report, we learnt that when Wong was 18 years old, she got to know the defendant through her ex-boyfriend who was a drug addict. Wong and the defendant became quite close and would address each other as “nominal” brother and sister. After Wong had broken up with her ex-boyfriend, she saw less of the defendant but the defendant would still occasionally invite her out for gatherings and taking drugs together.

20.  According to Wong, the defendant asked her to rent the flat for him and the defendant was the one to pay the rental. The defendant agreed to give her $1,000 every month as remuneration.

21.  On 3^rd May, Wong said that the defendant had asked her to have tea and invited her to go to the rented flat to take drugs. When Wong refused, two men appeared and took her away back to the rented flat. They stopped her from shouting for help by threatening her.

22.  Dr. Lee saw that Wong was emotionally unstable and appeared to have intense fear whenever the incidents of the offences were mentioned. She was tearful when mentioning the details of the offences and when talking about her personality change as a result of the traumatic experience.

23.  Since the false imprisonment, Wong had been suffering from insomnia. She would wake up sweating and shivering from nightmares of the assault and her being held captive. Her mood would fluctuate and she would become easily irritated. She would immediately huddle up with her hands protecting her head whenever she saw someone raised their hands.

24.  Socially, Wong had become withdrawn. She no longer contacted her friends and would refuse to take their calls. She is frightened of going out alone and would stay home as much as possible. She used to enjoy outdoor activities with her younger brother very much but had since the incident lost interest as she was overwhelmed with the fear of someone stalking her outside her home. Wong had suddenly changed from a bold and adventurous person to a timid and fearful person after the incident.

Sentence

25.  The maximum sentence for the charge of false imprisonment is that of 7 years’ imprisonment. There are no sentencing guidelines for this offence.

26.  In the case of Secretary for Justice v Yiu Man-chun CAAR 14/2010, the respondent entrapped his former girlfriend in her apartment in Sham Shui Po for several hours.  In the course of the escapade and whilst the police were seeking access to the flat, the respondent wielded a cutter which he pressed against her neck and chin and wounded her. These events resulted in a charge of false imprisonment and a charge of wounding. The respondent pleaded guilty to both charges in the District Court.

27.  The Court of Appeal considered that, without taking into consideration the aggravating factors in that case, the false imprisonment charge alone would have warranted a starting point of 3 and a half years’ imprisonment. Those aggravating factors do not appear in our present case and need not concern us.

28.  As observed in Yiu Man-chun, the offence of false imprisonment “can occur in such a wide variety of circumstances that it will often, though not always, be difficult to come across a previous decision that exactly or even roughly matches the facts of a case under consideration.” Each case must be considered on its own facts.

29.  I find the following factors particularly relevant to sentencing in our present case.

30.  The false imprisonment lasted 5 days, which is a long time to deprive someone of her freedom.

31.  The defendant did not act alone in the false imprisonment. He had the assistance of 2 unknown men to force Wong back to the flat.

32.  Wong suffers long term psychological damage, as found by Dr. Lee in the Victim Impact Report and summarized above.

33.  As for mitigating factor, I find that the only relevant mitigating factor is the defendant’s guilty plea.

Charge 1

34.  Bearing in mind the relevant factors and the sentence in Yiu Man-chun, I find that an appropriate starting point for charge 1 is that of 4 years’ imprisonment. The length of the detention is the main factor to cause me to adopt this higher starting point. I cannot begin to imagine the fear, the helplessness that Wong had to go through in those 5 days when she was held against her will. This sentence is discounted in recognition of the defendant’s guilty plea to 32 months’ imprisonment.

Charge 2 and 3

35.  The injuries suffered are not very serious and there is no lasting physical damage. I will adopt a starting point of 12 months’ imprisonment for each of the 2 charges, discounted to 8 months’ imprisonment upon the defendant’s guilty plea.

Charge 6 and 7

36.  The value of the stolen properties are not high. I will adopt a starting point of 12 months’ imprisonment for each of the 2 charges, discounted to 8 months’ imprisonment upon the defendant’s guilty plea. 

Totality

37.  Judging from the summary of facts and the story told by Wong in the victim impact report, as well as the mitigation put forward, the defendant had used the false imprisonment to allow him to try to get back the money Wong had allegedly stolen from him. The assaults and thefts can be regarded as in a way part and parcel of the motive behind the defendant’s conduct of false imprisonment.

38.  Applying the principle of totality, I will first of all order that the sentences in charge 2 and 3 be served concurrently to each other and the sentences in charges 6 and 7 to be served concurrently to each other.

39.  I will then order that 3 months of the sentence for charges 2 and 3, and 3 months of the sentence for charges 6 and 7 to be served consecutively to the sentence for charge 1 and each other.

40.  The defendant is therefore sentenced to a total of 38 months’ imprisonment.