CHIANG HUNG CHOY and Another v. R.

1993, No. 729
(Criminal)

H E A D N O T E

When imposing sentence, the courts must deal very firmly with loan sharks and their associates who threaten the families and friends of their debtors in order to obtain payment from them.

IN THE COURT OF APPEAL

1993, No. 729
(Criminal)

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court):

1. This case comes to us from the District Court, where five men appeared before His Honour Judge Britton on a charge sheet containing three counts: the first two being of blackmail and the third being of false imprisonment.

2. We are not concerned with the false imprisonment charge. No one was convicted thereunder.

3. The first charge was against the 1st and 5th accused. By his verdict delivered on December 13 last year, the judge convicted both of them.

4. The second charge was against the 1st, 2nd, 3rd and 4th accused. By that verdict, the judge convicted all four of them.

5. But we are not concerned with any of the accused other than the 1st accused, Chiang Hung-choy, a man in his early 40s and the 5th accused, Kwong Kam-chuen, a man in his early 30s.

6. Chiang drew three years' imprisonment: by way of a one-year term on the first charge and a consecutive term of two years on the second charge.

7. Kwong drew five years' imprisonment: by way of a term of that duration on the one charge on which he was convicted.

8. Both men now seek leave to appeal against sentence.

9. In each instance, the victim was the same, a Mr Tang Chi-kin, who owned a small shop in Kowloon. He had a younger sister who had an appalling gambling habit. She frequented the casinos of Macau, lost heavily and fell victim to "loan sharks".

10. Kwong was one of those loan sharks. When the lady could not pay, he went to her family. In the two years preceding 1992 when the offences here in question were committed, Mr Tang paid about $600,000 worth of his sister's debts, made up principal and, of course, interest at the sort of rate which loan sharks charge. It is not clear how much of that money went to Kwong. But it is clear that the unfortunate Mr Tang was being bled white, and that Kwong was one of the persons bleeding him.

11. Shortly stated, the prosecution's case, based on Mr Tang's evidence and ultimately accepted by the judge, ran thus. There came a time when Mr Tang was no longer prepared to pay his sister's debts to Kwong. And then things took a turn for the nastier. On December 4 the year before last, Chiang, Kwong and a person unknown went to Mr Tang's shop. There Kwong, in the presence of Chiang, insisted that Mr Tang pay him $150,000, saying that Mr Tang's shop would be burnt down if he did not. That incident formed the subject-matter of the first charge.

12. As to the incident which formed the subject-matter of the second charge, this is what happened. On the 8th of the same month, Mr Tang was again visited in his shop, this time by Chiang and the 2nd, 3rd and 4th accused. Mr Tang asked them to wait for him in a nearby restaurant. In the restaurant, Chiang was the spokesman. The demand had gone up to $160,000. And the threat was of a beating as well as of the burning down of the shop.

13. In arguing the application for leave to appeal against sentence on behalf of Chiang, one of Mr Poll's submissions is that the two charges of blackmail were based on a continuous transaction so that Chiang's sentences should have been made concurrent rather than consecutive.

14. The fact of the matter, however, is that there were two distinct offences. And what we are concerned with is whether the overall sentence was appropriate.

15. On behalf of both applicants, Mr Poll points out that the threats came only at a late stage. That, he submits, should be borne in mind when assessing the background. What has to be remembered, however, is that people like this victim do not part with huge sums of money to loan sharks for any reason other than that they are afraid of loan sharks.

16. Our attention has been drawn to a number of past decisions, some of which concerned offences like these and at least one of which is very different, involving the offence of kidnapping. While looking at past decisions can be helpful, it has to be borne in mind that times change, that offences which may not have been prevalent at one stage may have become prevalent later on, and that offences which were prevalent at one stage may have ceased to be prevalent. Also, offences are of course committed in infinitely various circumstances, and the personal circumstances of offenders can of course differ very widely from offender to offender.

17. One of the points taken by Mr Poll is that when people go to loan sharks they naturally expect that something unpleasant will happen if they do not pay.

18. Now, there are three difficulties in the applicant's way in connection with that submission. First of all, it is no mitigation for any class of offender that their reputation as a class is a thoroughly unpleasant and frightening one.

19. Secondly, in any event, the victim here was not the borrower but her brother, the unfortunate Mr Tang.

20. As to the third difficulty, we would mention the decision of this Court in Criminal Appeal 95 of 1993, The Queen v. Lui Sau Cheong, October 28, 1993 (unreported) which involved a prostitute who, having fallen into the clutches of loan sharks, was forced into prostitution on their behalf and virtually as their slave. In that case, the Court said (at page 3 of the judgment) that:

"In case after case coming before the criminal courts, one sees a procession offenders to a large extent driven to their offences - whether involving dangerous drugs, forgery, fraud, theft, robbery burglary or any other number of offences - to escape the clutches of loan sharks with whom they had the misfortune to deal. 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."

21. One of those evils and ills, which did not manifest itself in that case but which manifests itself in the present case, is the ripple effect of loan-sharking which reaches the family of the debtor. When imposing sentence, the courts must deal very firmly with loan sharks and their associates who threaten the families and friends of their debtors in order to obtain payment from them. We would not be dealing with such conduct firmly if we were to allow these applications. The judge did the right thing.

22. We uphold him. The applications for leave to appeal against these sentences, which sentences we consider appropriate, are dismissed.