HKSAR v. LIM HAY BUN BENNY

CACC 213/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 1999

(On appeal from DCCC NO. 59 OF 1999)

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J U D G M E N T

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Woo J : (delivering the judgment of the Court)

1. The Appellant, who has been granted leave to appeal against sentence by the Chief Judge, was charged together with two others in the District Court before Judge Longley in respect of two offences, namely :

(1) False imprisonment, in that he and the 3rd Defendant on or about 28 November 1998, in Hong Kong, unlawfully and injuriously imprisoned Lau Yau Shing ("Lau") and detained him against his will, contrary to common law; and

(2) Blackmail, in that he and the 2nd Defendant, on the same day, at the bar "Cheers" on 1st Floor, Concourse Hotel, Mongkok, Kowloon, with a view to gain for themselves, made an unwarranted demand of $320,000 from Lau, with menaces, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210.

2. The Appellant was convicted after trial and Judge Longley passed a sentence of 31/2 years' imprisonment on the Appellant in respect of each of the two charges, to run concurrently.

3. The Appellant now appeals against the sentences. In his written statement against sentence, the Appellant pointed out that it was wrong for the Judge to have adjudged him to be the mastermind; he having no triad background and the usual maximum sentence for similar cases was 24 months of imprisonment. Before us, the same grounds are argued. The Appellant refers us to a case in the District Court, being DCCC No.602 of 1999, in support of his argument that the usual maximum sentence in similar cases is 24 months.

4. It is necessary to set out briefly the facts for examining the roles played by the Appellant and the other Defendants.

5. Lau, the victim mentioned in both charges, was 19 years old. He travelled to Macau on his own in order to gamble. When he was gambling, a person who appeared to be a friendly bystander gave him suggestions as to how to place his bets. After Lau lost all his money, that person agreed to use his chips in an attempt to recover Lau's losses. After this man lost, he claimed that he had lost $60,000 which were spent on behalf of Lau. This man then suggested to Lau to go to another casino where Lau's luck might change.

6. In the second casino, this man and Lau met another man who purported to lose a further $140,000 by gambling on Lau's behalf. Lau was told that he owed a total sum of $200,000. He was told to provide the particulars of his family members and he complied. He was also told to telephone his father to tell him that he had lost $200,000 in gambling. He did, and in the course the man whom he met in the first casino also talked to his father.

7. Lau was taken to the ferry terminal and handed over to the 3rd Defendant. The 3rd Defendant bought ferry tickets and escorted Lau to Hong Kong, taking away Lau's portable phone during the journey. The 3rd Defendant told Lau that his job was simply to take him to Hong Kong and hand him over to other people.

8. On arrival in Hong Kong, Lau was met by the Appellant who together with the 3rd Defendant took Lau to a taxi. The Appellant told the taxi-driver to go to the Concourse Hotel, the place where the Charge Two offence was committed. Lau was seated between the Appellant and the 3rd Defendant in the back seat of the taxi. At the Concourse Hotel, Lau was obliged to wait until two more men, one of whom was the 2nd Defendant, arrived. The 3rd Defendant then left.

9. In the bar of the hotel, the Appellant told Lau that he owed a total of $320,000, $260,000 of which would go to the lenders in Macau and $60,000 of which would be what the Appellant described as his handling fee.

10. The Appellant then asked Lau for his identity card and Lau complied. The Appellant instructed the 2nd Defendant to make a photocopy of Lau's identity card and wrote out an IOU for $320,000 on the photocopy. The Appellant then asked Lau to sign. When Lau was reluctant to sign, the Appellant threatened him with violence. The other man who was at large also threatened to beat Lau up. Lau was forced to sign. This demand by the Appellant is the subject of Charge Two.

11. The Appellant and the 2nd Defendant then escorted Lau to his parents' home. Demands were made of his father. Lau's father had become aware of his son having fallen into the hands of loansharks as a result of the earlier telephone calls from Macau. He had made a pre-arranged code with his wife that when he telephoned his wife to say that their son had arrived home, she called the police.

12. As a result, the police arrived and the Appellant and the 2nd Defendant were arrested.

13. As to the roles played by the Appellant, the 2nd and the 3rd Defendant, the Judge was of the view that the 3rd Defendant's original role appeared to have been to escort Lau from Macau and handed him over to others. The 3rd Defendant's involvement ended on arrival at the Concourse Hotel. The Judge sentenced the 3rd Defendant to a term of 3 years' imprisonment for Charge One.

14. Regarding the Appellant, the Judge was of the view that he played the leading role and uttered threats to Lau personally. He regarded the appropriate starting point for the two offences of which the Appellant was found guilty being a sentence of 4 years' imprisonment. Having taken into account that the Appellant had a clear record, the Judge was prepared to discount the sentence by 6 months. He therefore sentenced the Appellant to 31/2 years' imprisonment for each of the two charges, both sentences to run concurrently.

15. Regarding the 2nd Defendant, the Judge was of the view that his part was subordinate to that of the Appellant, also mentioning that the 2nd Defendant was a younger man, aged 22 years and 3 years younger than the Appellant. The Judge sentenced him to 3 years' imprisonment for the blackmail charge.

16. It can therefore be seen that it is wrong for the Appellant to say that the Judge held that he was the mastermind of the operation. What the Judge said was that the Appellant was playing the leading role in the offences. There was evidence to that effect. The Appellant was the person whom the 3rd Defendant and Lau met upon their arrival in Hong Kong from Macau. The Appellant participated in taking Lau to the Concourse Hotel. He told the taxi-driver the destination. He told Lau to take out his identity card and asked the 2nd Defendant to make a photocopy and to write out the IOU. He also personally uttered threats to force Lau to sign it. He also took Lau to his parents' home with the 2nd Defendant.

17. It is also wrong for the Appellant to say that the maximum sentence in similar cases is 2 years' imprisonment. The District Court decision that he refers us to is contained in a newspaper report. That decision was apparently based on facts that were different from those in the present case. Anyhow, that decision is not binding upon us. Mr Saw, SC, for the Respondent has in his list of authorities directed our attention to four decisions of this Court, differently constituted, on sentences for false imprisonment and blackmail.

18. In R v Lui Sau Cheong, Cr App No.95 of 1993 (28 November 1993, unreported), the Court confirmed sentences totalling 4 years and 9 months of imprisonment, consisting of 4 years for a charge of false imprisonment and 9 months for each of three charges of lending money at an excessive rate, which amongst themselves were concurrent but consecutive to the 4 years.

19. In R v Chiang Hung Choy & Anr, Cr App No.729 of 1993 (23 September 1994), the Court confirmed a sentence of a one-year term and a consecutive term of two years imposed by a District Judge for two charges of blackmail which were connected with loansharking.

20. In R v Lau See-kau, Cr App No.573 of 1995 (16 February 1996, unreported), a sentence of 21/2 years was imposed by a District Judge for an offence of blackmail. On appeal, the Court of Appeal rejected the idea that any normal range of sentence between 18 months to 3 years existed for blackmail. The Court said :

"The circumstances of blackmail offences vary so much that sentences of very much longer than three years are often clearly appropriate. As for the present case 21/2 years was a very lenient sentence indeed. There is absolutely no merit in this application and the applicant is ordered to lose two months of time."

21. In HKSAR v Wong Kam Chan, Cr App No.345 of 1998 (30 June 1999, unreported), the applicant for leave to appeal against sentence received 4 years of imprisonment for a charge of false imprisonment and two terms of 2 1/2 years' imprisonment each for blackmail and dealing with the proceeds of an indictable offence, to run concurrently. The Court was referred to HKSAR v So Tang Fat, Cr App No.183 of 1997 (unreported), where the applicant was sentenced to 2 years' imprisonment for false imprisonment and assault occasioning actual bodily harm, for the proposition that "at the lower end of offences of unlawful imprisonment a sentence of 2 years is appropriate." The proposition was not accepted and the appeal was dismissed.

22. Each case must depend on its own facts. The offences involved in the present case committed by loansharks or their associates have not been infrequent occurrences in Hong Kong. Even the Judge said that the circumstances of these offences were typical of cases which were very familiar to those who sat in the District Court.

23. The loans which Lau was alleged to have owed to those in Macau are unenforceable in Hong Kong because they were incurred in or for gambling. It is unfortunate that people like the Appellant and the two Defendants in this case are prepared to assist in the collection of such loans, very often using unlawful means to do so. As the Judge had said, those who do and attempt to enforce such loans by illegal means, and in particular by the sort of means adopted in this case, false imprisonment and blackmail, will be severely dealt with by the courts in Hong Kong.

24. Moreover, the loan, which was at the most totalling $200,000, had become $320,000 within a day. By whatever calculation, that loan was increased by $60,000 for the alleged lenders and another $60,000 for the collection service in which the Appellant was involved. This cannot be amply described by the word 'extortion'.

25. In our view, despite the absence of any claimed triad involvement, the sentence of 3 1/2 years in all for the Appellant is in no way excessive. Had any triad element been introduced or any physical violence used, we are of the view that a longer term of sentence should be passed.

26. None of the grounds advanced by the Appellant has any merit, and we dismiss the appeal.