HKSAR v. CHEN LAM FUNG AND ANOTHER

DCCC 706/2021 & 417/2022

(Consolidated)

[2023] HKDC 1607

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 706 OF 2021 & 417 OF 2022

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REASONS FOR SENTENCE

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Pleas of D1 and D2

1.  Originally, there were nine defendants, D1 to D9. However, the case of D4 and D6 had been severed. D3 had also been dealt with earlier. D1, D2, D5 and D9 pleaded guilty before the trial was to start on 10 October 2023. Only D7 and D8 remain pleading not guilty and then trial is still going on.

2.  D1 and D2 each pleaded guilty to Charge 4, False Imprisonment. They indicated their plea of guilty in late September 2023.

3.  D5 and D9, after pleading guilty to their charges, gave evidence against D7 and D8. D5 and D9 would be sentenced only at the conclusion of the trial of D7 and D8.

4.  Today, I would sentence D1 and D2 because they are young offenders. D1 is now 20 years and 3 months old. When he committed Charge 4 in September 2020, he was 17 years and 1 month old. D2 is now 19 years old. When he committed Charge 4 in September 2020, he was 15 years and 10 months old.

5.  The ongoing trial of D7 and D8 has no impact on D1 and D2, whatever the result will be. The case against D1 and D2 (and that of D3 and D4 as well)  is quite compartmentalised from the other defendants. The facts D1 and D2 have admitted when pleading guilty are sufficient for the sentence of the only count against them, i.e. Charge 4, False Imprisonment.

Facts

6.  Someone hacked into the social media accounts of a 21-year-old man, X, and his girlfriend, Y. X and Y received harassing messages. The blackmailer asked X for $5,000 for the return of some sexy photos of Y to him.

7.  On 15 September 2020, X brought with him $5,000 and went to Tsz Wan Shan to meet the blackmailer. There he was lured to get on a taxi to go to a hotel in Kwun Tong with several men including D5. X was detained in Room 307 of the hotel against his will. The gangsters took away his wallet and mobile phone. (It was later revealed that the mastermind blackmailed X’s mother for $6 million but the lady did not pay the money.)

8.  X had been detained in the hotel room from about 10 pm on 15 September 2020. At first, he was guarded by the men who took him there. At about 12:37 am on 16 September 2020, D1 to D4 came to take over the guarding of X.

9.  At about 9:15 am on 16 September 2020, D2 and D4 left the hotel room temporarily.

10.  At around 11 am, X woke up. He found there were only D1 and D3 in the room and the two were sleeping, so he removed the coffee table that was blocking the doorway to sneak out of the room. X immediately went to the lobby to tell the staff what had happened. Then he left the hotel for the police station nearby.

11.  Earlier that morning at around 8:03 am, when X was still being detained in the hotel room, someone blackmailed X’s mother for $6 million. She was asked to pay the money in exchange for X’s safety. The blackmailer threatened to beat up X and to break his limbs.

12.  The police, upon X’s report, arrested D1 to D4 outside the hotel at 12:49 pm on 16 September 2020. (Apparently, D2 and D4 returned to the hotel to join D1 and D3 after X had escaped.)

Records

13.  D1 is now 20 years and 3 months old. When he committed Charge 4 in September 2020, he was 17 years and 1 month old. He has one previous record. On 8 July 2020, he was sentenced in West Kowloon Magistracy to 12 months’ probation (WK/1882/20)  for one count of criminal damage. He was thus in breach of the probation order when he committed false imprisonment on 16 September 2020.

14.  D2 is now 19 years old. When he committed Charge 4 in September 2020, he was 15 years and 10 months old. He has a clear record.

Mitigation

D1

15.  Counsel says D1 has been living with his parents and siblings. At the moment, he is working as a warehouse keeper.

16.  Counsel says D1 was only 17 when he committed Charge 4 on 16 September 2020; now he is still 20.

17.  Counsel says X had only been detained in the hotel room by D1 to D4 for about half a day before X managed to escape. X had not been ill-treated, threatened or injured by D1 to D4. X was allowed to eat and sleep and to use the toilet.

18.  Counsel points out there is no tariff for the offence of false imprisonment. Nevertheless, he cites several cases including CACC 183/1997, CACC 385/2004 and CACC 213/1999 where the starting point for a charge of false imprisonment was set between 2 and 3½ years.

19.  Counsel says a starting point of 3 years’ imprisonment would be sufficient for D1’s limited involvement in this case.

D2

20.  Counsel for D2 says D2 has been living with his parents, grandma and younger sister. He is working as a waiter now.

21.  Counsel says D2 was only 15 when he committed Charge 4 in September 2020. He said D2 was immature then and did not understand the seriousness of his misdeed. He was promised a reward of only a few hundred dollars for the guarding job and he had not received the money by the time he was arrested.

22.  Counsel says D2 only played a minor role in the whole case, i.e. guarding X in the hotel room. He did not know the mastermind’s blackmailing plot. Counsel says in D2’s case there are no aggravating factors involving triad, loan sharks or personal disputes. He points out D2’s group had not used any force on X.

23.  Counsel says there is no tariff for the offence of false imprisonment. He refers to a District Court case where the defendant was put on probation, and in another case the defendant was sent to prison for just 2 years. Counsel suggests the starting point in D2’s case can be lower than 2 years and in any event should not be more than 3 years.

24.  Counsel says in this case it was D1 who recruited D2 for the guarding job. Since D2 was younger than D1 and D2 had a clear record, so D2 should be given a lower starting point for his sentence.

25.  Counsel actually says the court can even consider putting D2 on probation. He says another defendant D4 was a year younger than D2, and D4 had been put on probation in the Juvenile Court in July 2022 after pleading guilty.

Sentence

26.  There is no tariff for the offence of false imprisonment (SJ v Yiu Man Chun, CAAR 14/2010). Each case depends on its own facts.

27.  D1 and D2 were young when they committed Charge 4, False Imprisonment in September 2020 and they are still under 21 now.

28.  D1 and D2 only played the role of guards in the hotel room from the midnight on 16 September 2020. They together with D1 and D3 kept an eye on X, preventing him to leave the room. X had been under their watch for about half a day before he managed to escape on his own wit and effort.

29.  There is no evidence that D1 to D4 verbally or physically threatened X. Nevertheless, the fact remains that X had been detained since the late hours of 15 September 2020 and D1 to D4 came to take over the guarding duty from the midnight of 16 September 2020. If X had not managed to escape, he would certainly be detained further.

30.  The court also cannot ignore the fact that the false imprisonment of X was a salient part of a blackmail plot. Though D1 and D2 might not know the mastermind’s plan, they no doubt must be aware that something very sinister was going on so much so that a number of people were required to keep X in the hotel room against his will.

31.  False imprisonment is always a serious offence. It deprives the victim of his freedom of movement. The victim X no doubt was freaked out, not knowing what those guarding him might do to him at any time.

32.  Counsel for D2 asked me to consider probation for D2, saying D4 had got probation.

33.  The judge sentencing D4 in the Juvenile Court certainly had his or her own thinking. After all, it was a Juvenile Court. D2 was a year older than D4. D2 had to be dealt with in the adult court. In fact, D2 chose to plead not guilty on 30 August 2022 and a trial date had to be set down. He and D1 only changed to plead guilty in late September 2023. That was already almost 13 months later and only less than a month before the trial was to start on 10 October 2023.

34.  I am aware that D1 and D2 are still under 21. For that, I have called for RC, DC and TC reports. Unfortunately, those reports say both defendants are drug dependents and cannot be admitted to RC, DC or TC.

35.  Probation or community service order are out of question for such a serious offence of false imprisonment. Imprisonment is the only available sentencing option for D1 and D2.

36.  In D1’s case, who recruited D2 to D4 to act as guards with him, I adopt 3 years as the starting point for Charge 4 False Imprisonment. In D2’s case, I would adopt a lower starting point because D2 was not the recruiter; he was younger and he had a clear record. For D2, I would adopt a starting point of 2 years and 9 months’ imprisonment for Charge 4.

37.  D1 and D2 plead guilty late. I would only give them 21% discount. On such consideration, I would send D1 to prison for 28 months for his plea of guilty in Charge 4 and I would send D2 to prison for 26 months for his plea of guilty in Charge 4.

38.  D1 was in breach of probation when he committed Charge 4 in September 2020. That probation order imposed in WK/1882/20 had now expired. In light that I have sent D1 to prison for 28 months for his Charge 4, I would make no order as to his breach of that probation order.