HKSAR v. TSANG HO WAI AND OTHERS

CACC 482/2006 and CACC 509/2006

CACC 482/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 482 OF 2006

(ON APPEAL FROM HCCC NO. 32 of 2006)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  This case concerns the maiming of a 7-year-old boy when a deliberate attempt was made to chop off his right hand (count 1).  This utterly cruel act against an innocent and defenceless child was brought about by a gang of five, including the child’s stepmother, Hung Man-yee (Hung).  The crime was motivated by jealousy and hatred on her part.  The attack on the boy reflected in the 1^st count had been preceded by an assault (count 2) on him.  However, Hung was not satisfied that this was an attack of sufficient severity as the child had suffered no injury.

2.  On 3 March 2006, Hung pleaded guilty to counts 1 and 2 in the Magistrates’ Court and was committed to the High Court for sentence (HCCC 33/2006).  The remaining four defendants, Tsang Ho-wai (D1), Lo Ka-ho (D2), Chan Chin-hong (D3) and Ng Tak-wing (D4), who had played various parts in the planning and execution of this crime, were committed for trial (HCCC 32/2006) on the 1^st count (wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212) and D1 and D2 were additionally committed for trial on count 2 (common assault, contrary to Common Law and section 40 of the Offences Against the Person Ordinance).

3.  In due course, D1 pleaded guilty to the common assault covered by the 2^nd count, D2 pleaded guilty to both counts and D3 pleaded guilty to the 1^st count.  This left D1 and D4 to be tried on the 1^st count.

4.  On 28 November 2006, D1 and D4 were convicted, following their trial before Deputy High Court Judge Line, and sentence was adjourned until the following day to enable Hung’s sentence to be dealt with at the same time.  In the event, Hung’s sentence had to be adjourned pending the preparation of psychiatric and psychological reports about her. 

5.  The remaining defendants were dealt with on 29 November 2006.  Having adopted an 18-year starting point for count 1, the judge sentenced D1 to 18 years’ imprisonment.  D2 and D3 had not only pleaded guilty but also gave evidence for the prosecution with the result that they received discounted sentences of 10 years and 9 years’ imprisonment, respectively.  D4, a taxi driver who had provided the transportation to and from the crime scene, in ignorance that a child was the target of attack, was sentenced to 8 years’ imprisonment.

6.  On 13 December 2006, when Hung’s case was restored to the list, the judge imposed 12 years’ imprisonment on the 1^st count to reflect a discount of a third for her guilty plea.

7.  Concurrent sentences on the 2^nd count in the cases of D1, D2 and Hung were imposed of which no complaint is made in the proceedings now before us.  Each of the applicants has sought leave to appeal against sentence on the 1^st count alone.

8.  Hung’s application in CACC 509/2006 has been consolidated with CACC 482/2006 to enable all of these applications to be heard together.  (A sixth defendant, Yeung Sing-kwong, Jacky, who played a peripheral role in obtaining the services of D4 and his taxi knowing only that there was, as the judge expressed it, “a plan to beat up somebody”, has not sought to appeal against his sentence of 2 years’ imprisonment following a guilty plea to “aiding and abetting inflicting grievous bodily harm”, contrary to section 19 of the Offences Against the Person Ordinance and section 89 of the Criminal Procedure Ordinance, Cap. 221.)

The facts

9.  The facts can be shortly described.  Shum Ho-yin (the victim) was born on 2 June 1998.  His parents later divorced and he went to live in Lei Muk Shue Estate, Tsuen Wan, with his paternal grandmother (PW2) who was then in her late sixties.

10.  The victim’s father remarried in 2004.  His new wife, Hung, gave birth in February 2005 to a son who was also placed in the care of PW2.  However, this soon led to unhappiness on Hung’s part.  She frequently scolded her stepson, the victim, and she repeatedly tried to persuade his father to whom she was now married to return the victim to the care of his natural mother.

11.  Hung eventually spoke to D1, her former boyfriend, about the problem.  She considered that her husband favoured the victim over her newly born son.  According to the account Hung gave to the police after her arrest, D1 suggested chopping the victim and she agreed but, as the judge rightly stated when sentencing Hung, it was her intolerance towards the victim, stemming from her deep hatred for him, that lay behind the events which were to follow. 

12.  In July 2005, Hung paid $2,000 to D1 who then arranged for D2 to assault the victim on the promise of paying D2 several hundred dollars to do the job.

13.  On 8 July 2005, immediately before this initial attack, which became the subject of count 2, Hung went round to the victim’s address on the pretext of taking care of her baby.  She did this in order to avoid the risk of injury to her baby while the victim, accompanied by PW2, was being attacked on his way to school.  Usually, to take the victim to school, PW2 would have taken the baby along with her.

14.  D2 had been given by D1 a photograph of the victim so that he cold easily recognise him and he had been told that the boy was 7 or 8 years old.

15.  At 7.00 am, D1 and D2 arrived at the Lei Muk Shue Estate where they planned an escape route.  D1 then waited for a telephone call from Hung who would inform him when the victim would emerge.  He, in turn, would then pass on the information to D2.

16.  At about 7.35 am on 8 July 2005, as PW2 was taking the victim to school, D2 appeared in front of them.  He forced the boy to the ground and  kicked him in the back.  D2 then fled the scene.

17.  The victim was taken to hospital but he was uninjured.  After the assault, D1 was paid a further $3,500 by Hung but he passed none of the money to D2 when he found out that no injury had been inflicted on the victim.

18.  The attack encompassed by count 1 occurred just over six weeks later, on 25 August 2005.  A few weeks earlier, Hung and D1 had spoken together at a restaurant when, as set out in the Summary of Facts in Hung’s case, D1 told her that he could “help her to make the boy disabled or cause him [a] long-term problem” and she was asked by him to pay $36,000 for the task to be done.  By contrast, when D1 was interviewed by the police after his arrest, he stated that Hung had told him that she wanted the victim’s right hand to be severed and that he had agreed to arrange for this to be done.  D1 then obtained the services of D2 to carry out the wounding for a reward of $10,000.

19.  The judge, in sentencing Hung, stated:

“I have no doubt that you knew the plan was to cut off his right hand. The idea that you were kept in ignorance of that central feature, when those were the specific instructions given to Lo Ka-ho [D2], and when there were no less than 195 telephone calls between you and Tsang Ho-wai [D1] between the assault and the wounding, is completely unrealistic. The number of phone calls arose from evidence, based on telephone records, I heard in the trial.

To be fair, your counsel has not made that claim on your behalf. I have only noted it through reports of what you said to the psychiatrist and psychologist.

I repeat what I said in sentencing the others, that the plot to maim Shum Ho-yin [the victim] was conceived and carried out over a period of time, cold-bloodedly and with a malice that it is hard to countenance.”

20.  The judge’s remarks were amply borne out by the details of the plot which revealed that D1 had told D2 to find someone to hold back the victim’s grandmother, PW2, when the attack was carried out.  For this purpose, D3, a former schoolmate of D2, was recruited.  He agreed to assist for $1,000.  Meanwhile, D1 arranged for the assistance of a taxi driver, D4, who agreed to provide transport for a reward of $4,000.  Dark clothes were to be worn by D2 and D3 to obscure the sight of bloodstains and choppers, with the handles bandaged to prevent fingerprints, were to be used.  D3 was with D2 when D2 sharpened one of the knives (shaped like a chopper) because, as D2 later told the police, D1 had told him that “the boy’s hand must be chopped off”.  For her part, Hung withdrew $6,000 from her bank account for D1 to buy the weaponry and other disguises needed and later she transferred $2,500 to an account for the purpose of obtaining the services of a taxi driver.

21.  On the morning of the attack, D2 and D3 went in D4’s taxi carrying masks, sunglasses, caps and gloves as well as two choppers in a bag.  D2 told D4 that they were going to chop a person or persons at the scene and when D4 enquired why this was happening he was informed that someone had paid them to do it.  D1 kept in touch with D2 and Hung by mobile telephone, having gone to Shenzhen in an apparent attempt to give himself an alibi.

22.  Hung adopted the same procedure as she had done in the first attack by suddenly arriving at PW2’s flat.  On this occasion, she purported to be on her way to see the doctor and wanting to see her baby first.  The attack, timed for the afternoon, had to be postponed until 5.00 pm as police officers happened to be in the vicinity.  In the interim, an escape route was worked out between D2, D3 and D4.  After various telephone calls between Hung, D1 and D2, D4 drove D2 and D3 to the Lei Muk Shue Estate when it was understood that the victim was returning home after school with PW2.  D2 and D3 put on their disguises and then rushed at PW2 and the victim, each brandishing a chopper.  D3 grabbed PW2 and threatened her with a chopper.  D2 pushed the victim to the ground and, holding the victim’s right hand down, chopped at his right forearm and right thigh a number of times.

23.  D2 and D3 then fled, discarding their weapons as they ran, taking the pre-arranged route on foot to the place where D4 had agreed to pick them up in the taxi.  They changed their clothes in the taxi and D2 telephoned D1 to say that although he had chopped the victim’s hand many times, his hand had not come off.

24.  On the following day, D2 went to Shenzhen on D1’s instructions and Hung deposited $36,000 into an account as the reward money she had promised.

25.  The victim’s injuries were described in a medical report prepared at the Orthopaedic Ward in Yan Chai Hospital and the post-operative photographs give a graphic picture of the horrific nature of this attack.  The two wounds to the victim’s right thigh (2 centimetres and 5 centimetres long respectively) were fortunately superficial, reaching only as deep as the muscle.  However, six of about seven chop wounds inflicted over the back (dorsal side) of the victim’s right forearm and wrist were deep and there was active bleeding associated with these.  The victim, the report stated, had an “open fracture on the right distal radius, lunette and scaphoid; [a] multiple segmental cut of all the extensor tendons of the right forearm and wrist; [a] segmental cut of the posterior interosseous nerve and branches of the radius nerve; and [a] cut radial artery at the wrist region and abductor tendon to the right thumb”. 

26.  Surgery to repair the damage done to the tendons was performed in July 2006 in order to achieve better hand function and we shall deal with the up-to-date position in due course.

27.  Following their arrest, D1 told the police that Hung had told him she wanted the victim’s right hand to be cut off completely.  D2 and D3 were, as we have indicated, completely cooperative with the police.  D2 admitted chopping the victim’s hand and D3 admitted threatening PW2 with the other chopper in the knowledge of what was to take place.  D4 stated that his job was to pick up passengers which he had agreed to do for $4,000 but he denied knowing that anyone was to be chopped.  He said that he thought the assault would be limited to punching or hitting someone.  Hung denied being the mastermind and made out that D1 was the originator of a plan to chop the victim.  She had, she said, initially agreed because she thought D1 was joking.  She realised it was serious when she was asked to deposit money for him and she said that she regretted having agreed with him to do so.

28.  At the time of sentence, D1 was 24, D2 and D3 were 17, D4 was 48 and Hung was 22.  None of the defendants had any previous convictions.

The applications

(i) D1’s ground of appeal

29.  It was submitted by Mr Hemmings in a concise submission on behalf of D1 that the judge had placed too much emphasis on the intent behind the crime and “failed to take into account that the injuries, though serious, were not life-threatening”.  In saying this, he relied upon a medical report dated 11 April 2008 from the Yan Chai Hospital which we have admitted in evidence under section 83V of the Criminal Procedure Ordinance, Cap. 221.  In this, the victim’s present medical condition is set out.  This describes how three sequential operations were performed on the victim.  The first operation immediately followed the victim’s admission to hospital and included tendon transfer and tendon grafting.  The other operations were on 12 October 2005 and 3 July 2006.  The victim was described as recovering quite well after a full course of physiotherapy and occupational therapy and the report of the consultant, Dr Chung On-ming attached to the Department of Orthopaedics and Traumatology, stated as follows:

“… I examined the patient on 31/3/2008 in the out-patient clinic of Yan Chai Hospital. There were multiple scars over his right forearm, wrist and hand regions. Some limitation of right wrist flexion and extension was noted. It was about 50 percent of the left side. Finger joint motion was also diminished and about 80 percent of the other side. The sensation loss over the scar area and first web was static. The hypersensitivity of scar disappeared. The patient did not complain of any pain. However, definite weakness of his hand and wrist was confirmed clinically. It was about 70 percent of the other side.

On asking his daily function, he can perform almost all his usual activities such as writing, playing basketball and table tennis, combing hair, operating computers …… However, the patient claimed that the endurance was diminished. It is likely related to the weakness of muscles of his right forearm and wrist.

In view of his growing potential and ability of adaption, his prognosis is good in term of general use of his right upper limb. However, certain degree of permanent compromise of his right hand and wrist function is expected especially while heavy working force is required.

We do not have any plan of further surgery for him at present moment. Any degree of permanent disability should be assessed in a medical board.”

30.  Mr Hemmings placed reliance on this reasonably optimistic report of the doctor and he submitted that a comparable situation had arisen in HKSAR v Khan Abid Hussain, CACC 216/2006 where a knife had been used to inflict serious harm but, in the result, only a limited degree of permanent disability was caused.  The applicant in that case had been convicted after trial of wounding with intent (an alternative to attempted murder of which he was acquitted).  Two serious neck wounds were inflicted on the victim before the knife was removed from the applicant after the intervention of a flatmate.  This court did not interfere with a sentence of 6 years’ imprisonment.

31.  In a second case relied upon by Mr Hemmings, HKSAR v Lam Wai-shu and Anor, CACC 283/2006 substantial and repeated assaults had been made on a 4-month-old baby by her parents.  The victim died of brain injuries.  On the charge of manslaughter, following trial, the applicants were each sentenced to 10 years’ imprisonment after the sentencing judge had placed reliance on HKSAR v Lam Wai-man [1999] 3 HKLRD 855 where a 12-year starting point was thought by this court to be appropriate for a manslaughter committed in similar circumstances.

32.  Following these decisions, Mr Hemmings suggested that a starting point of 12 years’ imprisonment was more in line with the kind of sentence normally imposed for offences of this kind where, extremely serious though such offences are, there has not been a catastrophic outcome for the victim.

(ii) D2’s grounds of appeal

33.  A similar point was made by Mr Hanif Mughal for D2 who submitted that 18 years’ imprisonment was too high a starting point for the offence and that insufficient weight had been given to D2’s “early plea of guilty, young age, assistance to the police and giving evidence in court at the trial of the other accused”.

34.  In D2’s case, it is worth recalling the judge’s summary of some of the essential details in the prosecution’s case against him which were as follows:

“… you knew the full extent of the plan and you were willing to do the job for $10,000.  It was your hand that wielded the chopper … in an attempt to sever hand from arm.  You completely severed tendons and nerves and broke three bones as you chopped.  It was not from any lack of effort that you failed to do what you intended.

It was you who recruited your classmate to be the helper that was needed in the attack to deal with the presence of the grandmother.”  (Appeal bundle p. 750)

35.  We were, again, provided with a variety of sentencing decisions of this court, including Secretary for Justice v Liu Chi-yung [2007] 4 HKLRD 182 where this court took a starting point of 15 years’ imprisonment for the stabbing of a police officer in the side of his neck which had left the officer with severe brain damage and in a near vegetative state.  In that case, it was said that the attack was “unpremeditated and probably done in a moment of panic”.

(iii)          D3’s grounds of appeal

36.  Although expressed in five grounds, in essence Mr Raffell, for D3, submitted that an 18-year starting point was too high for the offence in count 1 from which, he argued, it necessarily followed that the sentence ultimately imposed on D3 was manifestly excessive.  Again, we were taken to a variety of past judgments which were used for the purposes of comparison with the present case.  All in all, Mr Raffell’s contention was that cases involving greater seriousness in terms of their consequences to the victims, including those in the cases to which we have already referred, demonstrated that sentencing in the present case had been set at too high a level.

(iv)           D4’s grounds of appeal

37.  It was submitted by Mr Thomas Iu in the three grounds of appeal he advanced that as it was accepted that D4 had been unaware of the age of the victim to be chopped, he should be treated as any other joint participant in a wounding offence carried out by a group.  Mr Iu emphasised that D4 had only become aware of the general nature of the offence shortly before it was carried out.  In such circumstances, he contended that the 7-year starting point taken by the judge in D4’s case, to which the judge added a year’s imprisonment because of the aggravated circumstances of the offence, was manifestly excessive.

38.  Although Mr Iu, in common with other counsel, provided us with a number of decisions of this court in other cases involving wounding with intent and conspiracy to cause grievous bodily harm, we were not particularly assisted by these.  There are, of course, no guidelines for offences of this type nor could there realistically be any such guidelines in view of the infinite range of circumstances which may arise.

Grounds of appeal for Hung

39.  Mr David Ma, for Hung, argued that her sentence of 12 years’ imprisonment was manifestly excessive, again suggesting that a starting point of 18 years’ imprisonment was too high.  Mr Ma added that insufficient weight had been given, firstly, to Hung’s provision of a statement to the police in which she had expressed a willingness to testify for the prosecution and, secondly, in regard to her medical and psychiatric history.

40.  The claim that the judge failed to give weight to Hung’s statement to the police was misconceived.  The judge considered this very point and discounted it for the sound reason he gave, namely:

“Your counsel asked for further discount because you were willing to give evidence against the others and made a non-prejudicial witness statement. You were not called. The prosecutor saw little help in your offer, the reason being that the witness statement followed what you had said after caution, which contained unrealistic claims designed to shift the blame to your co-accused. In those circumstances there can be no extra discount.”

41.  Equally, the judge considered the medical and psychiatric evidence before him and the suggestion that this should have been given weight is an unworthy claim.  The judge, in this regard, said:

“Neither the psychologist nor the psychiatrist diagnosed any mental condition that would have had the effect of significantly diminishing your responsibility for your crime. They relate that you were upset at the state of your marriage and became jealous of your stepson, and that you could not adjust to the situation which was worsened by the effects of having a child in such circumstances.

The reports contain matters that might be prayed in aid in mitigation of a lesser crime, such as your emotional turmoil in an unhappy marriage. But the calculated cruelty involved in this case robbed them of weight, especially after you have received the generous discount for your plea.

I have had to ask myself if there should be any distinction between you and Tsang Ho-wai. He did it for money. You did it out of hate and jealousy. If you had not paid it would not have happened. There is no distinction to be found between you.”

Discussion

42.  As always in cases of this kind, an appropriate sentence can only be decided after close analysis of the facts and no two cases will ever be exactly the same.  Here, the stepmother of a 7-year-old boy was sufficiently jealous of the higher regard paid to him by her husband over her own child that she was prepared not merely to contemplate but to allow a scheme to be put into effect whereby the whole of the rest of the victim’s life was bound to be affected.  She had the money available to pay others to achieve her object which, whether it was her idea or D1’s, was to cut off the right hand of that child.  Save for the fact that the hand was not completely severed, the attack otherwise went according to plan.

43.  Whilst it is the fact that the victim has made a remarkable recovery due in large part no doubt to the skills of the medical team in whose care he has been, nevertheless he will bear the physical scars for the rest of his life and have restricted use of his hand.  The trauma of such an incident will have been considerable and cannot be underestimated.

44.  It is apparent to us that the gravity of this offence so far as the instigators, Hung and D1, are concerned and also on the part of those prepared to carry it out, namely, D2 and D3, richly merited extremely severe sentences.  Not only was this a case deserving of condign punishment for the offenders themselves but it also called for a heavy deterrent element in a jurisdiction where attacks on innocent victims with knives or other lethal weapons are by no means unknown.  A further aggravating factor in this case, which will have left any right-thinking member of society aghast at the particular horror of the attack, is the fact that the target was a child as young as seven.

45.  This offence was carried out in cold blood after careful planning had been given to it.  The earlier assault (count 2) involving Hung, D1 and D2 failed to moderate Hung’s hatred for her stepson.  This was so great that she was prepared to make sure he would be left with a physical handicap he would be bound to carry with him for the rest of his life.  Hung provided the money and left most of the rest of this evil plan to D1 to organise.  Whether it was Hung or D1 who first thought of chopping off the child’s hand is beside the point.  Hung knew perfectly well that this is what was intended when she paid the reward for the attack to be carried out.

46.  No mercy was shown to the victim.  This was an attack where each member of the gang except D4 was aware that a child’s right hand was to be cut off in order to achieve permanent disability.  The sheer horror that ordinary people would naturally feel on learning that a stepmother could harbour such vitriolic thoughts and then finance such a scheme is matched only by the instant willingness of others to carry it out in return for a financial reward.  In this regard, we wish to state that persons who commit serious acts of violence against others for financial reward will be treated with particular severity by the courts of Hong Kong, as will those who pay for such offences to be carried out.  An assault on a victim performed as a “contract” should be regarded as an aggravated offence and sentencers should bear this in mind when selecting an appropriate starting point for sentence after trial.

47.  D1 has shown no remorse whatsoever and for him there is no mitigation.  Hung’s only mitigation is that she pleaded guilty and for this she received the full discount.  We do not regard the relative youth of D2 and D3 as any mitigation in the circumstances of this case but they each gave evidence for the prosecution having pleaded guilty.  The normal discount for acting in this way is fifty per cent.  We note that D2 was not given this and, as a matter of principle, we consider that he should be.  The evidence D2 and D3 gave, whilst not standing alone, ensured the conviction of D1 who played a central role in this despicable crime.  In addition, as the judge intended that D3 should receive a slightly lower sentence than D2, it is only right that this distinction should remain and in his case also his sentence must, therefore, be reduced.  The judge, in sentencing, said:

“You, Lo Ka-ho [D2] and Chan Chin-hong [D3], both pleaded guilty and gave evidence for the prosecution. I judge that you both gave honest and truthful evidence. Accordingly, you both earned the one-third discount to which I have already referred. In addition, I am bound to reduce your sentences further to reflect the fact that you gave evidence for the prosecution. You did not provide the only evidence that led to the conviction of the two men who stood trial; there was other evidence against them. I judge that a total discount approaching about 45 per cent to be appropriate.

Even though you were both only 16 years old at the time, that is old enough for you to have well appreciated the evil which you set about. No mature judgment was needed to appreciate the harm you were to do.

Normally, in cases of joint wounding, defendants will receive the same sentence as it matters not whose hand may have held the weapon if both played a significant part in achieving the joint object. However, in this case, I am prepared to make a modest distinction between the two of you.

Even though you, Chan Chin-hong [D3], knew the full extent of the plan, there is something extra in the conduct of someone [D2] who was actually prepared to hold the boy with one hand whilst using his other repeatedly to bring down the chopper.” (Appeal bundle p. 751)

Whilst we do not particularly agree that the reason the judge gave for distinguishing between D2 and D3 was a sound one, when this is added to the fact that D2, unlike D3, had been involved in the earlier assault, we think that there was room overall for a distinction to be made between them.

48.  D4’s position was only different in that he had not apparently been told that the selected target of this chopping was a child.  Nevertheless, out of greed, he was prepared to act as the driver who was needed by the others to carry out an attack, not knowing the identity of the victim or the reasons why he was to be attacked but well aware of the nature of the weapons to be used.

49.  D4 had the mitigation identified by the judge when, in sentencing, he said that he had to deal with a middle-aged man without a previous record who, if he had known a child-victim was involved would not have helped in this venture.  In D4’s instance, the judge compared this case to a wounding offence carried out with intent to cause grievous bodily harm by a group of young men.  For that reason, he took a reduced starting point of 7 years’ imprisonment for D4.  Although Mr Iu criticised the judge for having taken into account the serious harm which was done to the victim by increasing the starting point to 8 years, we are satisfied that the judge was entitled to do so.  The court will often look at the consequences of a crime when considering an appropriate level of sentence and this offence is no exception to the good sense of such an approach.  D4 was prepared to drive two masked and armed men to carry out a knife attack not knowing who the victim or victims would be and, to this extent, his offence was aggravated by what in fact took place.

Conclusion

50.  We could find no merit in the grounds presented for D1, D4 and Hung.  Although, plainly, the sentences they received were high, because of the unique gravity of this offence we do not consider that the sentences were manifestly excessive.  Leave to appeal is refused in their cases and their applications are dismissed.

51.  For the reasons we have given, D2 and D3 are each given leave and we shall treat the hearing as the hearing of their appeals.

52.  D2’s sentence on count 1, giving as a matter of principle the full extent of the discount to which he was entitled, will be reduced from 10 years to 9 years’ imprisonment.  D2’s concurrent sentence of 6 months on count 2 will remain unaltered.

53.  D3’s sentence on count 1, in order to acknowledge the judge’s intention to give him a sentence which was lower than that imposed on D2, will be reduced from 9 years’ imprisonment to 8 years.

54.  To this extent the appeals of D2 and D3 are allowed.