HKSAR v. WAN MING KWAN AND OTHERS

DCCC 458/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 458 of 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Wan Ming-kwan, Deephlab Montha, Phanphai Kritsada and Li Chi-wang, the background to the offences before the court are well-known to you. A gambling debt of about $10,000 was owed by a man called Ho Tak-shing to the 3rd defendant. That debt had been incurred by Ho in premises in Lily Mansion in Lockhart Road, which were also run as a store for Thai products by the 3rd defendant and his mother, the 2nd defendant. It is apparent from the evidence which I accepted that the 3rd defendant had decided to use the services of the 1st defendant to obtain repayment of his debt. I was satisfied that the reason that the 3rd defendant relied upon the 1st defendant was because he knew that the 1st defendant, who was a local bully who “moved around” with a group of men, and that the 1st defendant was a person who could put pressure on Ho Tak-shing and intimidate him into making repayment.

2.  Some time before l6 October 2011, the date to which the charges relate, the 1st defendant and five to six others had severely assaulted Ho Tak-shing in the flat in Lily Mansion.  This turned out to be an unsuccessful attempt to force Ho to repay the debt.   The 3rd defendant was present in the flat when that assault occurred.   Following that assault, other approaches had been made to Ho, including approaches by the 4th defendant on behalf of the 1st defendant to ascertain when Ho would repay the debt.  The debt was never repaid by Ho before Ho was sentenced to a term of imprisonment.

3.  It is clear that the idea came, at least to the mind of the 1st defendant, to attempt to recover the debt from Ho Tak-shing’s girlfriend, Srithong Tarinee.  The attempt to force Srithong Tarinee to pay that debt is behind the events of l6 October 2011 which give rise to the charges before the court.

4.  In the early hours of the morning of 16 October at around 6.30 am Srithong Tarinee was walking in the street in Wanchai when she was approached by the 1st defendant and another man and instructed to follow them to the flat in Lily Mansion.  She did so.

5.  Before entering the flat the 1st defendant had made a telephone call to the 3rd defendant telling him to come to the flat. The 2nd defendant opened the door to the flat, and Srithong Tarinee was taken inside and told by the 1st defendant to sit on the floor by a refrigerator. After the arrival of the 3rd defendant at the flat, the 1st defendant questioned Srithong about her boyfriend’s imprisonment.  Being dissatisfied with her answers, the 1st defendant had slapped her face and told her that she had been brought there because of her boyfriend’s debt to the 3rd defendant. The 1st defendant took Srithong’s handbag and took $4,600 in cash and an HSBC bank card from the handbag.

6.  At some stage during the morning the 1st defendant had left the flat for a short time to visit the flat of a relation who lived on a higher floor in the building.  Srithong had walked towards the door of the flat hoping to leave, but she had been restrained by the 2nd defendant lightly grasping her arm and telling her that if she left flat the 1st defendant would kill her.  Srithong had asked the 2nd defendant to dial 999, but the 2nd defendant refused, giving the same reason.

7.  There came a time that the 1st defendant had called the 4th defendant telling him that they had caught Ho Tak-shing’s girlfriend and instructing him to come to the flat.  At about 8.28 am the 4th defendant and an accomplice arrived and Srithong was taken into the kitchen area of the flat where she was again made to sit on the floor.  The 4th defendant told her that he had to collect another debt of $10,000 from her which her boyfriend owed to one of his so-called “brothers”.  The 1st defendant had added that Srithong had to pay a total of $30,000 because he was feeling “moody” and “unhappy”. 

8.  Srithong was told by the 1st defendant to take off her ring and necklace and place them on the table.  Thereafter Srithong was subjected to a number of assaults and threats by the 1st defendant while she sat on the floor of the kitchen.  He poked the middle of her forehead with a billiard cue, he threatened her by placing the blunt side of a chopper against her forehead, he told her that if she did not raise $30,000 by noon he would cut off all her fingers.  As a result, she telephoned her ex-husband in a very distressed state and he reluctantly agreed to provide the money. 

9.  While waiting for her ex-husband to call back the 1st defendant had subjected Srithong to further threats.  He instructed the 3rd defendant to take out a crossbow from his bedroom, which the 1st defendant then pointed at Srithong and told her to open her legs, saying he intended to shoot her there.  He told her to take off her clothes so he could photograph her naked.  He did not ultimately do so because of objections by the 2nd defendant.

10.  Srithong’s ex-husband transferred at first $20,000 into Srithong’s Bank of China account, and later that morning $10,000 into the 2nd defendant’s bank account.  During the course of the morning the 1st defendant was able to withdraw the $20,000 by demanding that Srithong hand over her ATM card and disclose her PIN number.  Using them he withdrew $10,000 in cash directly from Srithong’s account and a further sum of $10,000 by transferring it to the 4th defendant’s bank account and withdrawing it in cash by using the 4th defendant’s ATM card and PIN number. 

11.  The $20,000 that was withdrawn in cash together with the $4,600 and bank card taken from Srithong’s handbag, and Srithong’s ring and necklace form the subject matter of the charge of robbery, Charge 2 in the amended and re-amended charge sheets.  The $10,000 transferred into the 2nd defendant’s bank account forms the subject matter of the charge of theft, Charge 3 in the re-amended charge sheet.

12.  The 1st defendant himself left the flat for the last time at 11.27 am, before he had completed all the banking transactions. When he did so, he left Srithong still seated on the floor in the kitchen area.  With her in the flat over the following hours were the 2nd defendant, the 3rd defendant, the 4th defendant, and the two men who had arrived in the flat with the 1st and 4th defendants respectively.  Srithong was not permitted to leave the flat until around 4.30 pm.  It appears that the reason she was detained until that time was that the 1st defendant had not yet called back to authorise her release.  Srithong had therefore been detained in the flat for approximately 10 hours. 

13.  In the early evening the 1st defendant used Srithong’s bank card to buy clothes worth $380 in Temple Street.  That incident is the subject of Charge 4 in the amended charge sheet.

14.  Srithong reported the matter to the police, who went to the flat and found the crossbow with 13 arrows and a box of iron pellets in the flat.  The 3rd defendant admitted that he owned them.  The possession of the arms and ammunition is the subject of Charge 5 in the re-amended charge sheet.

15.  The victim of the events that day was Srithong Tarinee. She was exposed to what must have been a terrifying ordeal for approximately 10 hours.  The object of subjecting her to this ordeal was to extract from her money that she was under no lawful obligation to repay.  She was chosen for this treatment simply because she was the girlfriend of Ho Tak-shing.

Wan Ming-kwan

16.  Wan Ming-kwan, you pleaded guilty to Charge 2 on what was then the amended charge sheet.  For the purpose of sentence I take that to be robbery of the $4,600 and bank card taken from Srithong’s handbag, her ring and necklace, and $20,000 that had been transferred into Srithong’s bank account by her ex-husband and withdrawn by you in cash through ATM machines.  You also pleaded guilty to Charge 3 on the amended charge sheet, the theft of the debt of $398 owed to Srithong Tarinee by the Bank of China.  This represents your purchase of clothes with Srithong’s bank card in Temple Street.

17.  In terms of responsibility of what happened that day, you are by far the most culpable.  You were the person who induced Srithong to go to the flat that day and summoned others to assist you.  You were the person who personally used physical violence and threats against her.  You made her sit on the floor, in both the living area and in the kitchen area.  You slapped her in the face when she didn’t give you the answer you wanted in respect of her boyfriend’s imprisonment.  You did that to instil fear into her and to try to impress the others present of your physical supremacy.  In the kitchen area you subjected Srithong to the series of humiliating and terrifying incidents to which I have already referred.  You demanded that she give you her ATM card and her PIN number, which you subsequently used to withdraw the money from the ATM machine.

18.  The robbery was of an entirely innocent woman. It involved a number of aggravating features, the threats and violence to which I have already referred, the taking of her ATM card and demanding her PIN number and using it to withdraw money, the fact that you summoned a number of accomplices to assist you in the enterprise.  I am satisfied that the appropriate starting point for that offence is 7½ years’ imprisonment.  That is the offence of robbery. 

19.  As far as the theft charges are concerned, I adopt a starting point of l2 months’ imprisonment. 

20.  I have listened to all that Mrs Yew has said on your behalf.  There is very little that can be said in mitigation.  You already have a record for a number of criminal offences, including offences of violence.  You elected to give evidence for the prosecution, but as I said in the reasons for verdict in respect of the other defendants, I was satisfied that there were matters about which you did not tell the truth to the court. In such circumstances, I do not consider it appropriate to give you any further discount beyond the one-third to which you are entitled to reflect you pleas of guilty. 

21.  Your pleas of guilty are, I hope, a reflection of the remorse that you have expressed in the letter you have submitted to the court.  I hope you are sincere in respect of the regret you express in that letter.  You are a young man who still has the chance to lead an honest and worthwhile life after your release from prison.

22.  On Charge 2 I sentence you to 5 years’ imprisonment.   On Charge 2 of the amended charge sheet, and then Charge 3 of the amended charge sheet, 8 months’ imprisonment.  Both sentences are to run concurrently.  The total sentence, therefore, is  one of 5 years’ imprisonment.

Deephlab Montha

23.  You, Deephlab Montha, were found guilty after trial of the false imprisonment of Srithong Tarinee, Charge 1, and the theft of a debt of $10,000 owed by HSBC to Lam Wai-ming, Charge 3.  That $10,000 effectively represents the gambling debt that was owed by Ho Tak-shing to your son, the 3rd defendant. 

24.  I am prepared to accept that you may well have been swept into committing these offences by events as they unfolded in your flat that morning. I accept that at least initially you may have come to participate in these offences with some reluctance.  I accept also that you may well have been scared of the 1st defendant and that that is the reason you appear shocked when you opened the door to the flat to find him with Srithong Tarinee. 

25.  While you would have known that the 1st defendant had forced Srithong to sit on the floor in the living area, I accept that you were in the lavatory when he slapped her, and that when you came out to find her crying, you told him to stop.  I accept that during the time Srithong was subjected to assaults and threats in the kitchen area you remained in the living area, but entered the kitchen area when Srithong cried out for help, after being told to take off her clothes so that the 1st defendant could take photographs of her unclothed.  On that occasion you scolded the 1st defendant and told him not to do it.  This, however, was a very small flat.  Even when you were in the living room area you cannot have failed to be aware that Srithong was being detained and ill-treated in the kitchen area, and that was with a view, amongst other things, to repay the debt which her boyfriend allegedly owed to your son.

26.  You have admitted that the 1st defendant told you not to let Srithong leave the flat.  You participated in her false imprisonment by refusing to let her leave the flat during a period that the 1st defendant had temporarily left the flat.  You refused her request to call 999.  

27.  While I accept that you may have been frightened to disobey the instructions that the 1st defendant had given you, you could have let her go, and you, yourself, have left the flat at that stage.  Indeed, you were free to leave the flat at any stage during the 10 hours that Srithong was detained there. 

28.  You participated in the theft of the debt of $10,000 by providing your bank card to your son at his request so that he could give it to the 1st defendant.  I am satisfied you would have been well-aware that the money going into that account would have represented the money allegedly owed by Ho Tak-shing to your son and that that sum was only being transferred there as a result of the mistreatment of Srithong.  Knowing this, you could easily have refused to supply your bank card or bank details, or made an excuse, and you did not do so.

29.  You do have criminal convictions, but they are essentially for gambling and immigration matters which are irrelevant for the purpose of sentence in this case, and I disregard them. 

30.  There are substantial mitigating circumstances in your case which I accept. 

31.  Your culpability for the events that day is substantially less than that of your co-defendants, but it was still serious. I am of the view that a sentence of imprisonment is inevitable. 

32.  I am satisfied that a starting point of l2 months’ imprisonment on the charge of false imprisonment, and 12 months on the charge of theft is appropriate.  There are no circumstances that warrant any discount from those starting points, and those are the sentences I pass.  Both sentences are to run concurrently.

Phanphai Kritsada

33.  You, Phanphai Kritsada, were found guilty after trial of the offences of false imprisonment, Charge 1; robbery, Charge 2; and theft, Charge 3. 

34.  I bear in mind in considering the appropriate starting points for these offences that at the time you committed these offences you were a man of previous good character.  I bear in mind that you yourself, did not personally assault, threaten, or mistreat Srithong during her period of detention in the flat.  Those things were all done by the 1st defendant.  However, you were present in the same area of the flat when these things were done, and you could see and hear what the 1st defendant was doing. I was satisfied that when the 1st defendant asked for your crossbow saying that he would play with it for fun, you well knew that he intended to use it to threaten Srithong.

35.  In your favour, I accept that when the 1st defendant told Srithong to open her legs and asked you for the arrows, you responded to Srithong’s request and her begging of you not to do so, by not giving the 1st defendant the arrows. 

36.  I accept that you may not have anticipated that the 1st defendant would bring Srithong to the flat that day.  You, however, were the person who had entrusted the collection of the debt owed to you by Ho Tak-shing to the 1st defendant.  You would have known that he was a local bully and that he went around with a group of men.  You knew he would have few scruples in the means he employed to enforce the debt.  Indeed, you had been in the flat when he and five to six other men had severely beaten Ho Tak-shing several days earlier.  

37.  Following that earlier event, you could have told the 1st defendant that you no longer wanted his assistance in recovering your debt.  You did not do so.  Far from doing that, you remained in the flat watching and listening as the 1st defendant assaulted and threatened Srithong, partially at least to recover the debt her boyfriend owed you.  You were clearly party to what he was doing on your behalf. 

38.  You assisted in obtaining your mother’s bank card so that the $10,000 owed by Ho Tak-shing could be paid into that account. You assisted the 4th defendant in preparing the fictitious receipt which was connected with his demand.  You were party to the detention to the 3rd defendant after the 1st defendant had left the flat.  You even left the flat in order to buy food for yourself and the others who were guarding Srithong until the 1st defender gave the word that she could be released. 

39.  I reflect your previous good character and the fact you did not personally assault or threaten Srithong by adopting a lower starting point as I did in the charge of robbery in respect of the 1st defendant. 

40.  For Charge 1 I adopt a starting point of 3½ years’ imprisonment; Charge 2, 6 years’ imprisonment; Charge 3, 12 months’ imprisonment. 

41.  You have shown no remorse and are therefore entitled to no further discount on those starting points.  Those therefore are the sentences I pass on those charges.

42.  On the charge of possession of arms and ammunition, the crossbow and 13 arrows and the iron pellets, I bear in mind that I have already taken into account the use that was made of it on 16 October in the earlier sentences I passed.  I do not know what was your original purpose in buying this crossbow, which you say you acquired in Thailand.  Even if the purpose was relatively innocent, this is a highly dangerous weapon.

43.  I am satisfied that the appropriate starting point is 2 years’ imprisonment, which I discount by one-third to reflect your plea, and therefore on Charge 5 I sentence you to 16 months’ imprisonment. 

44.  I order the sentences on all four counts to run concurrently.  Therefore the total sentences passed on you today are 6 years’ imprisonment.

Li Chi-wang

45.  Li Chi-wang, you were found guilty by me after trial of the charge of false imprisonment, Charge 1; robbery, Charge 2; and theft, Charge 3. 

46.  Your role on that day was one of the henchman of the 1st defendant.  You had been involved in earlier approaches on the 1st defendant’s behalf to Ho Tak-shing with a view to have him repay the debt that he owed the 3rd defendant.

47.  On 16 October you and a male accomplice responded to a call from the 1st defendant telling you that he had caught Ho Tak-shing’s girlfriend.  You came to the flat at about 8.28 am and remained there for the following 8 hours while Srithong was assaulted and threatened by the 1st defendant in your presence.  Thereafter, you guarded her until about 4.30 pm, when you permitted her to leave. 

48.  Not only did you go to the flat to lend strength to the 1st defendant’s attempts to extort from Srithong, by threats and violence, the money her boyfriend owed to D3, but you also demanded a further sum of $10,000 being an alleged debt owed to your “brother”.  You created a fictitious receipt for that sum. 

49.  As with the 3rd defendant I bear in mind that you did not personally threaten or assault Srithong. 

50.  I adopt the same starting points as I did with the 3rd defendant.  On Charge 1, 3½ years’ imprisonment; Charge 2, 6 years’ imprisonment; and Charge 3, 12 months’ imprisonment. 

51.  There is nothing that warrants any discount from those starting points.  You have shown no remorse.  You cannot claim to be a person of previous good character; you committed two offences of violence in 2004.  Those are therefore the sentences I pass and you are sentenced to a total of 6 years’ imprisonment.  All sentences are to run concurrently.