HKSAR v. CHAN WING FUNG

DCCC888/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 888 OF 2011

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Reasons for Sentence

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1.  Defendant, you have just pleaded guilty to a single charge of false imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance.

2.  The particulars of offence establish that between the 17th day of March and the 18th day of March 2009, in Hong Kong, you together with another person known as “Ah Pok”, unlawfully and injuriously imprisoned Tong Man-kit, the victim, and detained him against his will.

3.  The facts of the present case are different from the usual gambling debt cases.  The victim (PW1) in fact wanted to expand his tennis school business and was in need of money.  He was in Macau not because he went there to the casino to gamble.  What happened was that he found some finance companies on the internet and he contacted one of them over the phone and he was invited to apply for the loan in Macau.  Following the instruction and the request of a contact person of the finance company, he foolishly went to Macau to apply for the loan in the afternoon on 17 March 2009.

4.  After PW1 arrived at Macau, an unknown person picked him up at the pier and took him to the casino.  PW1 then provided this person with his personal particulars and copies of his identity documents.  Upon the instruction of this person, PW1 signed an IOU in the sum of HK$60,000 and he was asked to return to Hong Kong for the purpose of collecting the money.  A person called Ah Kit arrived at the casino and escorted PW1 to the pier.  Both Ah Kit and PW1 then returned to Hong Kong together.

5.  They then arrived at Hong Kong at about 10 pm on the same day where PW1 was handed over to another person, Ah Pok.  Ah Pok then took a taxi together with PW1 and went to a restaurant in Mongkok where they met you.  That was at about 11 pm.  Upon the request of you and Ah Pok, PW1 then provided you with his personal particulars once again.

6.  It was apparent from these facts that you and Ah Pok were the foot soldiers on the Hong Kong side on behalf of a loan-sharking finance companies in Macau.

7.  When the parties were at the restaurant, the victim requested you and Ah Pok to let him go.  However, you refused and replied that, “You haven’t settled the debt.  If I let you go, how can I report to my boss?”  PW1, according to the facts, had made the same repeated request several times.  However, you and Ah Pok just refused his request. Eventually, PW1 was allowed to leave the restaurant at about 1.30 am on 18 March 2009.

8.  According to the facts, subsequent to this incident, PW1 later received several calls from some unknown persons threatening to harass him and his family unless he repaid the loan, but as it turned out, he had never received any money in connection with the loan.

9.  PW1 later decided to report the matter to the police and you were later located and arrested.  According to the antecedent statement, subsequently you absconded at the end of July 2009 and you were only re-arrested in June this year.

10.  You are now aged 30 and you are still single.  In the past you have been brought to the court for two times for other  offences, namely gambling offences and also behaved in a disorderly manner in a public place and resisting arrest.  For the last two offences in 2006, you were given a 80 hours Community Service Order.  You have only a Form 2 education level and after schooling you have once worked as a bartender and delivery worker and you were unemployed at the time when you were arrested.

11.  Mr Ip, your counsel, mitigated on your behalf and prayed in aid of the fact that the role played by you in the present case is relatively minor.  He properly and correctly referred to the fact that altogether the victim was only detained unlawfully for a period of 2½ hours.  There is no evidence that during the time that you personally threatened the victim although there was mentioned in the facts that PW1 was subsequently threatened by some other unknown persons.  There is also the lack of evidence to suggest that PW1 was physically abused during the time.

12.  According to Mr Ip, you were just instructed to help the others to collect the loan which PW1 failed to repay and for this you were promised that you would be rewarded with a few hundred dollars.

13.  In considering the proper sentence, I was supplied with a number of authorities for consideration

14.  In HKSAR v So Tang Fat and Another, CACC183/1997.  The Court of Appeal approved a District Judge’s adoption of a starting point of 30 months’ imprisonment and the sentence was reduced finally to 20 months’ imprisonment because of the defendant’s plea of guilty.

15.  The Court of Appeal had expressed that,

“The courts have in recent years seen enough of the evils and ills of loan-sharking to become fixed with a duty to combat the same by penalties heavier than those generally imposed in the past.”

16.  More than 10 years have elapsed since that decision.  However, these kind of loan-sharking activities are still very common and prevalent and are frequently dealt with in the District Court.  Having said that, however, I agree with what your counsel had submitted that as far as the facts of the present case, this would be a more minor case in terms of the gravity of the matter as far as the elements of false imprisonment is concerned. 

17.  I agree that the time during which the victim was falsely imprisoned was relatively short and that during the time when you were together with the victim there is no evidence to suggest that there is any further impropriety against the victim so in the end I am satisfied that a starting point of 2 years is sufficient in this matter.

18.  Your counsel has suggested that you have voluntarily surrendered yourself but the fact remains that you have absconded first, which is an aggravation by itself so these two factors actually cancel each other out and I would not reduce your sentence because you surrendered yourself to the authorities.  The only effective mitigation in this matter is your plea of guilty for which you would receive the customary one-third discount.

19.  For this offence, you are therefore sentenced to a period of 16 months’ imprisonment.