HKSAR v. TRAN VAN TU AND ANOTHER

DCCC 105/2022

[2022] HKDC 1435

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 105 OF 2022

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REASONS FOR SENTENCE

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1.  The defendants pleaded guilty to one joint charge of false imprisonment[1].

Summary of facts

2.  The victim, PW1, owed $1.35 million to his creditors, who intercepted him at around 00:01 on 19 May 2021 to demand repayment.

3.  PW1 fell while attempting to flee, resulting in abrasive injuries to his right arm and calf. PW1 was beaten up while he was on the ground, and was dragged into a vehicle after about one to two minutes. The beating continued while he was in the moving vehicle.

4.  PW1 was taken to a flat in an unknown building and was held captive there for 4 days, from 19 to 22 May.

5.  Different males were at the flat each day to guard PW1. He was only allowed one meal per day, and would excrete in the staircase.

6.  The father of PW1 reported him missing on 21 May.

7.  At around 23:40 on 22 May, D1 and D2 were the two males guarding PW1. PW1 managed to share his live location via WhatsApp with his girlfriend when D1 and D2 were distracted. PW1 saw that he was detained in the vicinity of Plover Cove Road in Tai Po.

8.  At around 04:30 on 23 May, Police officers arrived at Plover Cove Road and located the flat where PW1 was held. They broke in and subdued D1 and D2, who were sitting near the door of the flat while PW1 was sitting in a chair next to a counter.

9.  PW1 told the officers that he had been held captive for a few days, and that he suffered abrasions to his right ankle, leg and calf. His face had bruises with blood shot eyes. He also felt pain in the back of his head and on his back.

D1’s video recorded interview

10.  D1 in his video recorded interview claimed that he was contacted on 22 May by D2 via Facebook Messenger about a job opening to guard a person for $700. D1 met up with D2 at around 20:00 at Sham Shui Po MTR station and took a taxi to Tung Fat Square, Tai Po.

11.  When they arrived at the flat in question, two Chinese males left, leaving them to guard D1 until 08:00 the following morning. D1’s duties included guarding PW1, making sure he did not leave the flat, and providing PW1 with meals. D1 said he knew PW1 was being imprisoned for owing someone $1.5 million. D1 said PW1 had already suffered the injuries he had when D1 and D2 arrived at the flat that day.

D2’s video recorded interview

12.  D2 in his video recorded interview claimed that he was recruited on 21 May by a Vietnamese male called Ming to guard a Chinese male. Ming sent an address to D2 via WhatsApp and asked D2 to go with D1 to that address. Ming said he will give $200 per day to D2 to buy meals and water for PW1.

13.  D2 also knew that PW1 was being imprisoned for owing money. He noticed the injuries on PW1 when he arrived at the flat. D2 said he understood PW1 to already have been in the flat for 5 days.

14.  Conversation records in Facebook Messenger between D1 and D2 showed that D2 messaged D1 at 10:07 on 22 May about a job opening to guard a person from 22:00 to 08:00 for $700 and D1 accepted the offer.

15.  It is the prosecution’s case that D1 and D2 had unlawfully and injuriously imprisoned PW1 and detained him against his will at the flat at all material times.

Previous convictions

16.  D1 and D2 have no previous convictions as at the time of sentencing.

Background and mitigation

D1

17.  D1 is 33 and was born in Haiphong, Vietnam. He got divorced in late 2019 and became a single father looking after his 10 year old son. They used to live together in Vietnam with D1’s 65 and 66 year old parents.

18.  Since D1 finished his secondary grade 9 education in Vietnam, he had worked as a shoemaker, taxi driver and lorry driver for more than 6 years there. He was earning the equivalent of approximately HK$3,100 per month and contributed half of that to his parents.

19.  D1 is a Form 8 recognizance holder. He came to Hong Kong in March 2020 as a result of his financial burden compounded by death threats from the local gangsters in Vietnam, which is the subject matter of his appeal to the non-refoulement claim.

20.  Before his arrest in the present case, D1 was living in Mongkok with his girlfriend who is a Hong Kong permanent resident. D1 was dependent on her since he is not allowed to work here.

21.  Mr Kevin Chan for D1 told the court that D1 got to know D2 at Castle Peak Bay Immigration Centre. Just as D1 had said in his video recorded interview, D2 had offered him the opportunity to make some money by guarding a person. D1 was led to believe that he was just going to be a foot soldier to watch and buy food for the person in return for $700. D1 never received the money.

22.  As far as D1 was concerned, the matter was not triad related, nor does D1 have a triad background.

23.  D1 in his letter to the court explained how he came to commit the offence in more details. It is not necessary to repeat them here as Mr Chan had already dealt with them in his written submissions. D1 asks for leniency so that he can be reunited with his parents, wife and children in Vietnam, who are waiting for his return every day.

D2

24.  D2 was born in Vietnam in 1997 and is 25. He is divorced with a 4 year old son.

25.  D2 entered Hong Kong illegally in 2020. He is a Form 8 recognizance holder and has been living on the allowance from International Social Services. D2 was unemployed.

26.  Mr Kenny Chan in his written submissions in mitigation confirmed what D2 said in his video recorded interview about how Ming invited D2 to guard a male at the flat. Ming promised D2 $200 per day to buy meals and water for the male. D2 had not received any reward from Ming prior to his arrest in the present case.

27.  Mr Chan pointed out that D2 had not used any violence on PW1 and that he was not the mastermind of the false imprisonment, merely following instructions of Ming. D2 is remorseful. He committed the offence out of stupidity and has learnt his lesson. He promises to live his life with faith and integrity and not do anything illegal again.

Sentence

28.  The maximum penalty for the common law offence of false imprisonment on conviction upon indictment is that of imprisonment for 7 years and a fine.

29.  Mr Kevin Chan in his very helpful written submissions on mitigation referred to the following passage of Spencer J in the English case of R v Leon Drummond Miller [2021] EWCA Crim 1863, identifying the relevant factors to be taken into consideration in assessing the culpability of the offender of the offence of false imprisonment.

“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 behaviour and any particularly (sic)  vulnerability of the victim whether by reason of age or otherwise.” (emphasis added by Mr Chan)

30.  For context, in Miller, the complainant met the appellant online. They met up the following day at a railway station and walked to the appellant’s home together, where the complainant took 2 Valium tablets, smoked some cannabis and drank some whiskey. The complainant was kept at the house by the appellant for about 12 hours, during which she was not allowed to leave. When she eventually attempted to go, the appellant threatened to kill himself and used a knife to slash her buttock as she tried to leave, causing a large laceration. The appellant held a knife to his own throat when the complainant ran out of the door. The complainant was later found to have suffered multiple serious knife injuries.

31.  Although Miller is an English Court of Appeal case, the factors identified in the said paragraph are correct, and I do not see any reason not to take them into consideration when sentencing.

32.  Mr Kevin Chan and Mr Kenny Chan both referred to the District Court case of HKSAR v Lee Ka Wai [2019] HKDC 751 to assist the court. There the defendant was instructed to detain the victim to collect a debt arising out of a loan shark scam in Macau. The defendant there participated actively and directly from the moment the victim arrived in Hong Kong from Macau. He made a number of threats and took nude photos and videos during a 3 day detention of the victim. The learned trial judge adopted a 3-year starting point.

33.  Both Mr Chan submit that the conduct of the defendant in Lee Ka Wai is more serious than the present case, where D1 and D2 had not assaulted nor threatened PW1. There is also no evidence to suggest that PW1 was tied up while being held captive in the flat by them.

34.  They also point out that the defendants were clearly not the mastermind of the holding captive of PW1, and that there was no premeditation on their part. They had no idea how long PW1 had been kept in the flat and was only engaged to take part very briefly as the guards for a few hours.

35.  The defendants accept that the fact that they are Form 8 recognizance holders at the time of their commission of the offence is an aggravating factor and that an enhancement of sentence, usually not less than 6 months, is to be expected[2].

36.  I agree that the defendant in Lee Ka Wai was more culpable in the commission of the offence. D1 and D2 in the present case were only engaged after PW1 already had been taken captive, and they were to be involved for only a few hours.

37.  Nevertheless, false imprisonment is a serious offence and D1 and D2 committed the crime for money.

38.  I find that an appropriate starting point is that of 2 and a half years’ imprisonment for each of D1 and D2.

39.  For the aggravating factor of the defendants being Form 8 recognizance holders while committing the offence, I will enhance each of their sentence by 6 months’ imprisonment, leading to a sentence of 3 years’ imprisonment.

40.  D1 and D2 are granted the full one-third discount for their timely plea of guilty and sentenced to 2 years’ imprisonment each.