HKSAR v. LEE TSZ LUNG

DCCC 753/2023

[2024] HKDC 853

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 753 OF 2023

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REASONS FOR SENTENCE

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INTRODUCTION

1.  The defendant is convicted upon his own guilty plea of one charge of false imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong.

FACTS

2.  At the material time, the victim (“PW1”), Miss Ng (“PW2”), Mr Ho and Mr Tang were former colleagues of a car beauty company.  PW1 was also Mr Ho’s former girlfriend.

3.  At about 10:04 pm on 7 March 2023, PW1 was working alone at a garage situated at Kam Tin Road, Pat Heung, Yuen Long, New Territories (the “Garage”).  A private car (“V1”)  and a 7-seater vehicle (“V2”)  drove into the Garage.  Four men got off from V1 and V2.  Two other men also walked into the Garage.  As such, there were a total of six men (the “Men”)  appeared at the Garage.

4.  One of the Men (“M1”)  asked PW1 whether she was called (“Ah Co”).  PW1 replied in the affirmative.  M1 then asked PW1 to get on V1.  PW1 asked M1 what was going on but M1 insisted that PW1 got on V1 first.  PW1 was scared.

5.  After PW1 got on V1 unwillingly, she found that Mr Tang was already in V1.

6.  Two of the Men also got on V1 and asked PW1 to close her eyes and lower her head.

7.  V1 was subsequently driven off.  About 2 to 3 minutes later, PW1 felt scared and secretly asked PW2 via WhatsApp to make a report to the police.  PW1 also sent her location to PW2 via WhatsApp.

8.  About 20 minutes later, the Men asked PW1 and Mr Tang to get off V1 and lower their heads.  PW1 and Mr Tang complied.  One of the Men (“M2”)  asked PW1 to surrender her mobile phone to him.  PW1 immediately complied.

9.  A few minutes later, the Men asked PW1 and Mr Tang to get on V1 and close their eyes again.  PW1 and Mr Tang complied unwillingly. V1 was driven off again.

10.  A few minutes later, the Men asked PW1 and Mr Tang to get off V1, lower their heads and follow them. PW1 and Mr Tang complied unwillingly.  

11.  After having walked for about 10 minutes, PW1, Mr Tang and the Men went into a hut (the “Hut”).  M1 then asked PW1 and Mr Tang to kneel down.  M1 also asked PW1 and Mr Tang to write a debt note.  M1 said Mr Ho owed them HK$390,000 and they could not locate him.

12.  Meanwhile, police received PW2’s report and called Mr Tang’s mobile phone in order to locate him. Mr Tang answered the call, passed his mobile phone to PW1 and told PW1 that the police were looking for her.  In the phone call, the police asked PW1 to indicate whether she was safe or not.  PW1 said she was not safe.

13.  After PW1 had finished the phone call, M1 asked PW1 whether she had reported the matter to the police. PW1 answered in the affirmative.  The Men then returned PW1’s mobile phone to her and asked PW1 to get on V1.  PW1 got on V1 in which there were several men already.

14.  V1 was subsequently driven off.  At about 11:52 pm on the same day while PW1 was inside V1, she informed PW2 via WhatsApp that she was safe.  After about 5 minutes, the men in V1 let PW1 get off V1.  PW1 then got off V1 and ran towards Tai Wo Village.

15.  At about 12:50 am on 8 March 2023, PW1 was located by the police near Tai Wo Village.   

16.  The defendant was arrested by the police on 23 March 2023.  In a cautioned video-recorded interview, the defendant said, inter alia, that:

(1)  V1 was borrowed by him and he was the only person who had the car key;

(2)  At about 7 pm on 7 March 2023, his friend Alan called him and asked him out to have dinner at Kowloon City;

(3)  He drove V1 to pick up Alan and two friends of Alan;

(4)  Alan later directed him to drive to the Garage;

(5)  He and Alan arrived at the Garage at about 10 pm;

(6)  Alan got off V1 and spoke to PW1;

(7)  Alan and PW1 then got on V1;

(8)  Alan subsequently directed him to drive V1 to the Hut; and

(9)  After knowing that someone had made a report to the police, he and Alan left the Hut.

17.  CCTV footages of the Garage showed the following:

(1)  At about 10:06 pm on 7 March 2023, V1 was driven into the Garage;

(2)  The defendant and another man got off from V1. They then approached PW1;

(3)  At about 10:07 pm, V2 was driven into the Garage. A man got off V2. Another man got off from V1. Two other men walked into the Garage. There were a total of 6 men in the Garage;

(4)  At about 10:09 pm, PW1, the defendant and one of the six men got on V1 which was subsequently driven off.

DEFENDANT’S BACKGROUND AND PREVIOUS CRIMINAL RECORD

18.  The defendant was born in September 1991 and is now 32 years old.  He has received education up to Form 5 level.  He used to work as a construction foreman for 8 years making a monthly income of HK$25,000 to HK$30,000.  He is married with no kids.

19.  The defendant has one previous conviction of being a member of a triad society, for which a community service order of 80 hours was imposed on him in November 2009.

MITIGATION

20.  Mr Donald submitted that:

(1)  The defendant became involved in this case when a friend arranged to meet up with him for dinner. The friend asked the defendant to assist as the defendant had a car, and the defendant agreed. This was something that was “sprung on him at the last moment”;

(2)  The defendant was not involved in any of the pre-planning that went on. He became involved at a very late stage and he found himself in a position of being too late to withdraw;

(3)  The defendant’s role was simply driving one of the three cars;

(4)  There was no violence, torture, humiliation, weapons, restraining devices or threats involved in this case. There was no triad involvement either;

(5)  PW1 was initially allowed to retain possession of her mobile phone; and

(6)  The length of false imprisonment was very short.

21.  Mr Donald referred this Court to the following cases and suggested a starting point of between 24 and 30 months’ imprisonment:

· HKSAR v SO Tang-fat CACC 183/1997

· HKSAR v YAU Chun-man DCCC 840/2008

· HKSAR v CHAN Sai-tong DCCC 989/2009

· HKSAR v TANG Tsz-yeung DCCC 375 & 785/2010

· HKSAR v LEE Ka-wai DCCC 874/2018

· HKSAR v MAROOF Ashar & others DCCC 434/2023

· HKSAR v TRAN Van Tu DCCC 105/2022

22.  Mitigation letters from the defendant himself, his wife, mother and employers were submitted asking for leniency.

SENTENCE

23.  In R v Leon Drummond Miller [2021] EWCA 1863, Spencer J said:

“14. It is accepted that in accessing (sic)  the gravity of cases of false imprisonment, the relevant factors will include the length of the detention, the circumstances of the detention, including location and any method of restraint, the extent of any violence used, the involvement of weapons, whether demands are made of others, whether threats were made to others, the effect on the victim and on others, the extent of any planning, the number of offenders involved, whether there was the use of torture or humiliation, whether what was done arose from or in further (sic)  of previous criminal behavior and any particularly (sic)  vulnerability of the victim whether by reason of age or otherwise.”

24.  In the present case, I note that:

(1)  Six men appeared at the Garage at night to make PW1, a lone woman at the Garage, leave with them;

(2)  PW1 complied with the Men’s instructions unwillingly and was scared;

(3)  PW1 and Mr Tang were made to write IOUs when it was not PW1 or Mr Tang who owed them any money;

(4)  No weapon was used. There was no evidence of violence, threats or humiliation. PW1 and Mr Tang were not restrained. However, I am sure PW1 succumbed to the Men’s instructions because she was outnumbered by them;

(5)  PW1’s mobile phone was initially not taken away by the Men. However, I am sure it was not because they meant to allow her to use the mobile phone but because they forgot to deprive her of her means to communicate with others by mobile phone; and

(6)  The length of false imprisonment was not very long.

25.  Further, I do not accept the mitigation that it was too late for the defendant to withdraw from his friend’s scheme – there is no evidence that he was forced or pressurized to do what he did.

26.  Having carefully considered the circumstances of this case and the mitigation advanced by Mr Donald, I adopt a starting point of 2½ years’ imprisonment.

27.  I give 1/3 discount to the defendant for his timely indication of guilty plea.  There being no further valid mitigating factors justifying further reduction in sentence[1], the defendant is sentenced to 20 months’ imprisonment.