HKSAR v. CHEUK CHUN LUNG AND ANOTHER

DCCC 302/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 302 OF 2012

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with an offence of "False imprisonment". They both pleaded guilty.

Summary of Facts

2. On 4 February 2012, PW1 X (male, aged 19) went to Macau with a friend.  They gambled in a casino and lost all the money they had with them.  Two unknown males then offered each of them a $50,000 loan.  They accepted the loans and were taken to an unknown casino. 

3. Upon arrival, PW1 and his friend were separated. Two unknown males accompanied PW1 to a designated table to gamble.  After a while, PW1 lost all his chips.

4. One of the males took away the mobile phone from PW1 and made a copy of PW1's HKID card.  PW1 was given an IOU stating that he owed $50,000 and had to repay the sum by 5 February 2012.  The male gave PW1 a ferry ticket.  PW1 was told to look for staff of the lender at the exit of the ferry terminal in Hong Kong.  PW1 returned to Hong Kong alone about 5:30 am on 5 February 2012.

5. After landing, PW1 was approached by D2.  He took PW1 to Tsui Wah Restaurant ("the Restaurant") in Jordan.  There, D1 approached PW1.  He told PW1 to settle his debt in full immediately.  D1 and D2 then took PW1 to Yuk Ching Chi Spa ("the Spa") in Jordan, where PW1 was closely monitored by D1 and D2.

6. About 1:00 pm on 5 February 2012, D2 told PW1 that he had to repay $80,000 in total.  At D2's request, PW1 gave him the particulars of each family member in the presence of D1.  D1 and D2 continued to monitor PW1 at the Spa.

7. About noon on 6 February 2012, PW2 Y (PW1's father) received a call from an unknown male.  He told PW2 to meet him at the Restaurant.  PW2 went there with his wife.

8. At the Restaurant, D2 told PW2 that PW1 had incurred a gambling debt of $80,000 in Macau and was required to settle the principal plus an administrative fee of $30,000, totalling to $110,000.  D2 told PW2 to raise the money by 2:00 pm on 7 February 2012.  D2 allowed PW2 to speak to PW1 on the phone, during which PW1 told PW2 that he had incurred a gambling debt in Macau.  PW2 left the Restaurant and reported the matter to the Police at home.

9. In the meantime, D2 told PW1 that since PW2 could not raise the money until the following day, PW1 could not leave the Spa.  PW1 remained there and was monitored by D1 and D2.

10. About 3:00 pm on 7 February 2012.  D2 left the Spa alone.  Shortly thereafter, D1 took PW1 to the Restaurant.

11. Upon arriving at the Restaurant, D1 told PW1 to go up to the Mezzanine Floor.  There, PW1 saw PW2, his brother, D2 and 2 unknown males (who were plainclothes police officers).  It turned out that before D1's arrival, the 2 officers had already arrested D2.

12. PW1 was told by the Police to go downstairs to identify the person who brought him there.  On the Ground Floor, PW1 pointed D1 out.  D1 was also arrested.  Under caution, both D1 and D2 remained silent. 

Mitigation & Sentence

D1

13. D1 is almost 21 and has a clear record.  He is single and resides with his family.  He started working after completing F.5.  He has worked as a delivery worker and a waiter.  He was unemployed at the time of the offence.  At present, he works as a part-time delivery worker earning $300 per day.

14. Defence counsel Ms. CHU explained that D1 met someone at the Restaurant.  That person offered him a way to earn some quick money by being a debt collector.  D1 could earn $2,000 for each successful collection.

D2

15. D2 is now 27 and has 5 conviction records (none of which is similar to the present offence).  D2 is married to a mainlander residing in Shenzhen.  D2 started working after completing F.3.  He once worked as a waiter at his sister-in-law's restaurant earning $8,000 per month.

16. Ms. CHU explained that D2's eldest sister was diagnosed with breast cancer in 2011.  She is single and lives alone.  D2 was trying to help her with the medical expenses.  Similar to D1, D2 met someone at the Restaurant and was offered a way to earn some quick money by being a debt collector.  D2 could earn $2,000 for each successful collection.

17. Ms. CHU also informed me that D2 got married in November 2011.  His wife became pregnant some time before the offence.  As one of his bail conditions was not to leave Hong Kong, D2 could not visit his wife after his arrest.  As a result, D2's wife suffered from depression and had a miscarriage in May 2012 (medical chit submitted).  D2 is extremely remorseful for what he did.

Sentence

18. Ms. CHU submitted that the debt collection activities involved only the 2 defendants.  There is no evidence showing that they were involved in any of the events which took place in Macau.  Ms. CHU further submitted that D1 and D2 were obviously inexperienced; their skills were primitive and they had no elaborate planning.

19. Ms. CHU has submitted a bundle of cases on sentencing.  I have read them all.  I need not repeat them here.

20. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) and/or having a sick family member are no mitigating factors for committing a crime. D2's elder sister's sickness is no doubt tragic, but I am sure she would not want D2 to help her by illegal means.  D2's wife's miscarriage is also upsetting, but her depression could have been avoided had D2 not committed any crime.

21. For the purpose of sentencing, I would not comment on the legitimacy of the overnight inflation of PW1's gambling debt from $50,000 to $80,000 or the levy of the $30,000 administrative fee.  I accept that D1 and D2 were perhaps merely "foot soldiers" for a syndicate which was in real control behind.  I also accept that D1 and D2 may not have any say on the amount to be collected from PW1.

22. On the other hand, even if PW1 had genuinely incurred a gambling debt, there are lawful means to enforce payment.  What D1 and D2 did was in effect holding PW1 to ransom, which is a dead serious matter. Moreover, the evidence strongly suggests that the offence is a cross-border syndicated crime, whether or not D1 and D2 had knowledge of any details of its operation. The court needs to send a clear message to the general public that this type of debt collection methods must be stopped and deterred.  The protection of the debtor's liberty and personal safety is of paramount importance.

23. Ms. CHU submitted that in the present case, no triad element was involved and no violence was used on PW1.  This I accept. In my view, the proper starting point for D1 and D2 is 2.5 years' imprisonment. A one-third discount is given for the guilty pleas, reducing each person's sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, D1 and D2 are each sentenced to 20 months' imprisonment.