R. v. LO WAI KEUNG and Others

IN THE COURT OF APPEAL

1996, No.159

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicants were found guilty after trial of three counts of blackmail and one of common assault. They were sentenced by Judge Pang in the District Court to imprisonment overall of four years and one month. They now seek leave to appeal against that sentence.

2. We think it appropriate to recite the prosecution evidence in detail to demonstrate the full flavour of the criminality. The evidence was that the victim was unemployed and was living with his wife at the time of the offences. He was, it seems, a habitual gambler and on 22nd June 1995, went to Macau where, after losing all his money, he was approached by a man who called himself "Ko Lo" who gave him $20,000 non-cashable chips with which he continued his gambling. On the following day the victim's wife joined him in Macau but this did not change his luck as by 11 p.m. on that night he lost all the chips given to him by Ko Lo. He was unable to make any repayment and was taken then with his wife by Ko Lo to see a person who was called "the boss". He was ordered to remain in a flat overnight until the following morning when he was told that he would be escorted back to Hong Kong to raise cash of $20,000 plus $1,000 handling charge. The boss, it seems, then rang the 2nd defendant and the couple were escorted back to Hong Kong. When they arrived at the Shun Tak Centre, the 1st defendant appeared and after conversing with the 2nd defendant, all four boarded a taxi and went to the couple's home in Tsuen Wan. Once there the 2nd defendant informed the victim that the amount that he now had to repay was $29,600. In a matter of hours the debt had escalated from $20,000 to $29,600. The 1st defendant then questioned the wife about her place of work and her bank account and, as no repayment could be made immediately, the 1st defendant told the couple that they would have to obtain money from a loan company. The wife was told to go to her office to get her worker's identity card, tax and other certificates so these could be used to obtain the loan. She obtained the documents and returned to the flat but upon her return was overcome and broke down and commenced to cry. The 1st defendant then accused her of trying not to make the repayment and grabbed hold of the victim and punched him heavily. The wife beg him to stop saying she would make repayments.

3. The husband and wife were then escorted to Mongkok and while the victim was guarded by the 2nd defendant the 1st defendant and the wife approached various finance companies trying to raise the $30,000. No company was willing to make the loan and the couple were finally allowed to leave to try to raise the money from their friends. They were told that they had up until 5th July to pay off the loan, which by then stood at $42,000, and that if it was not paid by 5th July, a further recalculation would be made. The wife was only able to raise $7,000 and this was paid to the 1st defendant.

4. On 4th July the 1st defendant telephone the victim saying that they would have to pay money the next day which was the wife's pay day. He arranged to meet the couple outside the wife's work place.

5. On 5th July the couple met the 1st defendant and the wife gave the victim her ETC card which he was to use to obtain money for repayment. However it seems that the ETC machine did not work and the 1st defendant told the victim to go to Mongkok talk further with the 2nd defendant. There was then a meeting between the 2nd defendant and the victim and the 2nd defendant agreed payment could be made at the rate of $6,000 per month for seven months and that the $7,000 already paid and a further amount of $4,800, which was to be withdrawn from ETC machine, would be treated as interest. The victim agreed to this and the 1st defendant then demanded the ETC card and the PIN number so that he could withdraw money from the ETC. He was pressed later to return this card but he never did so.

6. On 14th July the 1st defendant telephoned the victim telling him to meet the following day. When they met the 1st defendant and the 2nd defendant brought another person who was identified as "Brother Tak", who in fact was the 3rd defendant. The victim was told that the outstanding debt had been transferred to the 3rd defendant. There was a short discussion and then the victim was told to get into a car which was driven by the 3rd defendant. The other two defendants also got into the car and they drove to Route Twisk and en-route the 3rd defendant swore fiercely at the victim and demanded repayment as soon as possible. After arrival at Route Twisk the 2nd defendant got out of the passenger seat, grabbed the victim who was sitting in the rear seat, dragged him out of the car and he and the 3rd defendant then gave the victim a fierce beating punching and kicking him about 20 times. The 3rd defendant tried to force the victim to swallow a lighted cigarette and also said "Take that knife out and chop both his hands." Because of the presence of a passing motorist, the 1st defendant pushed the victim back into the private car and they drove away from the area towards Tuen Mun. While proceeding, a mobile phone was used by the wife of the victim to ring to find out what was happening. The 1st defendant then agreed to meet her outside the residence occupied by the couple. The wife was picked up and the journey continued with both the 2nd and 3rd defendants swearing and threatening that unless the total amount of $42,000 was paid by midnight, the victim would be dead. The wife made calls to her sister trying to arrange the money and she, in fact, arranged a bank transfer of $10,000 to an account number provided by the 1st defendant. The 1st defendant, apparently was suspicious that the police might have been informed, started to withdraw from active participation telling the wife she had to go and get the money herself.

7. At about 1.05 on the morning of 16th July, the wife, after collecting $32,000, was directed through pager messages to a meeting at the Wo Che Shopping Arcade in Shatin. That amount was given to the defendants and the couple allowed then to go home.

8. On 18th July 1995, there were further demands and further pressure for payment of $10,000. That was the straw that broke the camel's back as the victim and his wife then reported the matter to the police. In consequence of this report, all three defendants were shortly thereafter apprehended.

9. That is the dreadful tale of the criminal pressure brought to bear on this couple by the three defendants.

10. The trial judge when sentencing, said:

"From an initial loan of $20,000 in casino chip in Macau, the victims had paid over a total of $43,800 by the time the matter was reported to the police. Had the matter not been reported I am quite sure that the defendants would have continued with the extortion.

I had called for a background report for each of the defendants. I am aware that each defendant had one previous conviction of a relatively minor offence which was committed over ten years ago. For the purpose of sentencing the defendants I am prepared to disregard their previous convictions.

Loan sharking operations are extremely reprehensible criminal activities and it is especially so when such activities are accompanied by blackmail and violence. A deterrent sentence is always called for. In the present case the victims were subjected to continuous pressure for over a period of some 4 weeks with serious disruption to their daily lives and causing constant concern over couples' well-being.

For each of the blackmail charges I assess the appropriate sentence to be one of 4 years imprisonment. I find each of you to be equally culpable as it is a concerted effort to force the victims into meeting your insatiable greed. I bear in mind the totality principle and for that reason alone I order the sentences for the blackmail charges to run concurrently.

As to the common assault charges I would impose a sentence of 1 month imprisonment on each charge.

I can see no mitigating circumstance in respect of each defendant."

11. Mr. Ma, who appears for the applicants today, relies particularly upon two sentences in the passage which I have just read. The first was where the judge said:

"For the purpose of sentencing the defendants I am prepared to disregard their previous convictions."

And the second:

"I can see no mitigating circumstance in respect of each defendant."

Mr. Ma refers us to The Queen v. Chan Ka-choi (1988) 1HKLR 530 and to the passage at p.534 of that report which states:

"Once the offender has been found guilty of the offence the court must, leaving aside personal circumstances and previous record, make an assessment as to the proper sentence to be imposed given the type of offence and the circumstances of its commission. When this has been done, the court must give credit for absence of previous convictions and for personal circumstances."

Mr. Ma submits that Judge Pang, having indicated that he was disregarding the previous convictions, then failed to give credit for "absence of previous convictions". We are by no means satisfied that this was so. It is true that the judge did not follow the sequence suggested in Chan Ka-choi. What he did was this. He first said he was prepared to disregard previous convictions. He then went on to say

"For each of the blackmail charges I assess the appropriate sentence to be one of 4 years imprisonment."

It seems to us that he was assessing sentence in the light of what he just said, i.e. no previous convictions. When he came shortly afterwards to say he could see no mitigating circumstances, it seems to us that he was there conveying that, within the circumstances of the offences themselves, there was nothing that could be used to mitigate. If that be so the judge did not err in fixing his sentence at four years. However that may be we have no doubt that four years would be a wholly appropriate sentence to impose on offenders without previous convictions in circumstances such as this. These were vicious offences relentlessly pursued. Such an offenders can expect sentences which reflect not only the abhorrence of society, but which also carry, as the judge indicated they did, a deterrent element. The sentences were neither wrong in principle or manifestly excessive. The application must, therefore, be refused.