HKSAR v. KAM KAI CHUNG AND ANOTHER

DCCC538/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 538 OF 2011

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

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

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

Reasons for Sentence

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

1.  This morning you were both charged with false imprisonment (Charge 1) and blackmail (Charge 2). Each of you have pleaded guilty to the false imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance. Both of you pleaded not guilty, however, to the blackmail charge, which is contrary to section 23(1) & (3) of the Theft Ordinance, Cap.210.

2.  The false imprisonment charge established that between 9 April this year and 11 April this year in Hong Kong both of you unlawfully and injuriously imprisoned Kwok Yau-sing, Petro and detained him against his will.

3.  You have agreed the Summary of Facts and I convicted both of you in relation to the this charge. 

4.  In relation to Charge 2, the prosecution is content that this charge could be left in the court file and not to be proceeded with without the leave of the court.

5.  The facts of the case are simple.  In order to force the repayment of a gambling debt, both of you and others confined PW1 (the debtor) for approximately 63 hours during which time attempts were made to locate friends and relatives and family members of PW1 who would repay the debt on his behalf.

6.  The gambling debt was originally HK$155,000 and had been increased to HK$200,000 within a day which is said to be including handling fees and also subsequently increased to $250,000 which includes interest and expenses incurred.

7.  D1 was the first debt collector who handled PW1 when he was escorted by a man from Macau to Hong Kong.  PW1 was then taken to a restaurant by D1 to Mong Kok where he was asked for his personal details including his financial and debt situation, residential address, telephone numbers and work addresses of his family members including his mother and his wife (PW2).  In order to detain PW1 against his will and to scare him, D1 at one point told PW1 that he would follow him wherever he went and will stay even at PW1’s home.

8.  D2 later appeared and D2 joined D1 and both of you kept pressing PW1 to raise the money.  Both of you took PW1 to his mother’s residence even though PW1 had expressed clearly that he did want to go there. When the mother was not located, you kept on pressing PW1 and asking him to try hard to find ways to repay the money and even suggesting that another group of people or Vietnamese might come to catch him and even to sell his human organs like kidney, if he did not repay.    

9.  During the ordeal, PW1 was not allowed to go back home but instead was made to sleep at a massage parlour during the night. Eventually, in the morning of the day of the arrest of both of you and another male at one point had taken PW1 to his home and asked him to get documents so that later on for the purpose of applying loans.  These documents included payroll slip, electricity bill, tax return, bank statement, tax demand note and company employment letter.

10.  During the course of the incident, PW2 was alerted and she made a report to the police and both of you were subsequently arrested by the police inside a restaurant in Mong Kok. 

Background and record of both defendants

11.  The 1st defendant is aged 28.  In the past you had six previous criminal records with no similar record but you have been sentenced to probation, community service as well as training centre. 

12.  The 2nd defendant is aged 31 years of age.  You had a total of five previous convictions, none similar.  Of significance was that you have been once sentenced by the High Court for a period of 7 years’ imprisonment for a charge of trafficking in dangerous drugs.  

13.  D1 is single and has secondary education level. I was told that you worked as a telephone insurance sales earning an income of about $10,000 each month.  According to the antecedent statement, D1 had three children.  The first daughter is born with his previous girlfriend while the second and third son was born with his present girlfriend. 

14.  As for the 2nd defendant, your lawyer informed the court that upon your arrest, you were unemployed and you were living on the social assistance and also working as a causal worker earning a low income of about $3,000 per month. 

15.  Your lawyer informed the court that because of financial burden each of you wanted just to earn some quick money and therefore committed the present offence.

Sentencing consideration

16.  The present offence clearly involved loan-sharking activities.  Loan-sharking is unfortunately all too frequent nowadays.  The court has in recent years seen enough of the evils and ills of the loan-sharking to become fixed with a duty to combat the same by penalties heavier than those generally imposed in the past.

17.  In sentencing both of you, I judge that the role played by each of you is the same.  This is a joint enterprise and that each of you had to a certain extent and degree exerted pressure on PW1 and forced him to be detained for the purpose of forcing him to ask his friends and relatives for loans in order to repay the debt.

18.  Clearly the gambling debt in Macau is unenforceable in Hong Kong.  It is just people like both of you who are willing to assist those people from behind to collect such loans and very often through unlawful means to do so.  Those who do attempt to enforce such loans by illegal means and particularly by sort of means such as adopted in your case namely, false imprisonment, will be severely dealt with by the courts in Hong Kong.                          

19.  Having considered all the mitigation advanced on your behalf by your counsel, your personal backgrounds and your record and the facts of the case, I would adopt 30 months’ imprisonment as a starting point and because of your plea, you will be given the customary one-third discount. 

20.  In the end, each of you will be receiving a sentence of 20 months’ imprisonment.