THE QUEEN v. TSUI YUN CHAK AND OTHERS

Headnote

Comments on s 80 District Court Ordinance:

Reasons for verdict: Reasons for sentence

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JUDGMENT

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Silke, V-P:

1. This is the judgment of the Court.

2. Tsui Yun Chak, the 1st applicant, Wu Sai Kit, the 2nd applicant and Yip Kai Ming, the 3rd applicant appeared for trial before Her Honour Judge Beeson in the District Court on a charge sheet containing ten charges. After trial the 1st applicant was convicted of one charge of false imprisonment, two charges of assault occasioning actual bodily harm, two charges of criminal damage and two charges of criminal intimidation. The 2nd applicant was convicted of one charge of false imprisonment, one charge of assault occasioning actual bodily harm and three charges of criminal intimidation; and the third applicant was also convicted of the false imprisonment charge, one charge of assault occasioning actual bodily harm and two charges of criminal intimidation. They were sentenced each to a total of two years imprisonment. The two years itself had been imposed in respect of the false imprisonment charge with the other sentences ordered to run concurrently.

3. Originally they all sought leave to appeal against both conviction and sentence. The only ground placed before us in respect of conviction was that the  trial judge failed to comply with provisions of s 80 of the District Court Ordinance in that she failed to deliver Reasons for Verdict and/or Sentence:

"at the time or 'as soon thereafter as may be'"

from time of Verdict the hearing had ended on 21 June; Verdict was pronounced; the recording of the Reasons was on 12 July 1991. It was suggested that this default rendered the verdict a nullity.

4. In the face of the Court Mr MacKenzie-Ross, who appears for all the applicants, abandoned the application in respect of conviction. We were therefore concerned now only with sentence.

5. All these ten charges arose. from the same incident. Mr Lam Hung Wang owed money to a vegetable wholesaler in the Cheung Sha Wan Market. That firm was run by the brother of the 1st applicant who also worked in it. Goods had been supplied on credit to Mr Lam who was a vegetable hawker having a stall. His indebtedness had mounted up and, at a time earlier than the incident which gave rise to the charges, he had been lent a further $100,000 at an interest rate of 84% p.a. - the apparent intention being to help Mr Lam reduce his original debt of some $165,000. By the end of June of 1990 Mr Lam had closed down his business, left Hong Kong and gone to China. He returned from China on 13 July 1990. By that time complaints had been made to the police in relation to cheques which Mr Lam had issued and which had been dishonoured. Mr Lam was rearrested on his return. There were further negotiations between his main creditor, Mr Tsui, and himself and a schedule of repayment was agreed. There were to be payments of $4,000 per month beginning in August of 1990. The complaint to the police was at that time, withdrawn. The had been a payment at some time,  when we are not clear, of $60,000 by Mr Lam to this particular creditor in order to reduce his debt.

6. On 30 July 1990, before the $4,000 arranged payment was made in August, the applicants led by the 1st applicant and with others in tow, met Mr Lam in a restaurant.  There was a demand made from Mr Lam for an immediate payment of $200,000 to which Mr Lam did not, on the instant, agree - he had earlier said that he had no money in any event - whereupon the 2nd applicant assaulted Mr Lam and there were further assaults perpetrated on his person by the 2nd and 3rd applicants. Mr Lam was taken from the restaurant, forced into the back seat of a car and driven to the Cheung Sha Wan Wholesale Vegetable Market. In the course of that journey other demands were made upon Mr Lam and further assaults took place.

7. At the market he was brought to the canteen. He was there surrounded by a group and was unable to make his escape. He was required to give the telephone number of his mother. He was told that if repayment was not made he would be beaten to death and his body thrown into the sea. He was again assaulted by the 2nd applicant and another person who was not before the court. He was asked for his wife's address. At this time he and his common law wife were not living together. The 1st applicant said that he would go to Mr Lam's wife to get the money. Mr Lam was forced back into the car and taken to the estate where the wife was then living with her family.

8. When they reached the flat in the estate, the 1st applicant went into it, followed by Mr Lam. Mr Lam then managed to close the iron grille, shutting out the 2nd and third applicants who remained outside. In the course of closing that iron grille he was assaulted by the 1st applicant. His wife attempted to help Mr Lam and she in turn was assaulted by the 1st applicant.

9. When the wife's sister attempted to telephone for help the 1st applicant whipped out the telephone cord and damaged the telephone itself. The wife then tried to go to the back of the flat to alert her neighbours and get their assistance. She was assaulted by the 1st applicant. Nevertheless she and her sister did manage to alert the neighbours. There were further demands for $200,000 made to Mr Lam which he indicated was an impossible demand. The 1st applicant again threatened to kill Mr Lam and Mr Lam was further assaulted.

10. The 1st applicant attempted to grab the keys of the door of the flat so as to allow D2 and D3 to come in. He did not succeed. The police then arrived on the scene.

11. Generally in evidence there was a denial by the 1st applicant, who was the only person who gave evidence, of the matters described by Mr Lam, his wife and his sister-in law.

12. In passing the sentence she did the trial judge took the view that these offences were "extremely serious", that the three applicants were, on behalf of the 1st applicant's brother either voluntarily or for payment, acting as "bully boys" to retrieve the sum owed.  She went on that it

"was quite clear this was a planned and consistent attempt to retrieve from the victim a sum of money that all persons involved knew he did not have".

She considered the false imprisonment to be the most serious and, as we have indicated, imposed on that offence the two years sentence.

13. There had been a suggestion that any sentence which she might consider proper should be suspended. That suggestion she rejected.

14. The 1st applicant is married and his wife is pregnant. The 2nd applicant is single and he worked for the 1st applicant. The 3rd applicant is also single, though we were informed today that he is contemplating marriage. He also worked for the 1st applicant. All had minor records which the trial judge very properly did not take into consideration in passing sentence.

15. In concluding her Reasons for Sentence, she said:

"The practice of extracting debts by use of threats and violence is prevalent in Hong Kong and sentences relating to such practices require an element of general deterrence."

16. Mr MacKenzie-Ross has taken issue with the reference to an "element of general deterrence" in particular because no Reasons for Sentence were delivered at the time sentence was imposed.

17. This Court in The Queen v Tam Wing Hung [1988] 2 HKLR 44 at p 48 had this to say in relation to the giving of reasons by a District Court judge at the time that the verdict is passed:

"Mr Bruce accepts that the better practice, for a man is entitled to know why he is convicted and faces the possibility of imprisonment, is not simply to say 'guilty' and give reasons later but to give the reasons there and then."

We wish to endorse that which was said in Tam Wing Hung.

18. Section 80 of the District Court Ordinance reads:

"Before pronouncing judgment, a judge shall record his verdict and, at the same time or so soon thereafter as may be, shall also place on record a short statement of the reasons for the verdict."

Surprisingly, that section makes no reference to giving of Reasons for Sentence.

19. While it is the better practice that Reasons for Verdict should be given at the time of the recording of that verdict, nevertheless we do understand that in a busy court this may not always be possible. But, that having been said, it is always preferable, and not merely "the better practice" that if a man is to be deprived of his liberty, he should be aware of the particular reasons for the quantum of the sentence he is about to face.

20. However, we do not think that the absence of reasons given at the time, by itself, would be sufficient ground for interference with a proper sentence.

21. Mr MacKenzie-Ross has urged upon us that the applicants had "a strong motivation" for their actions in that they were attempting to recover money which was due and they themselves were concerned with the firm to which the money was owed. He has drawn to our attention an unreported decision in the Queen v Chan Ping Leung and Another Cr app 336 of 1987 in which two persons had been found guilty of blackmail and theft after trial and sentenced to 2 1/2 years on the blackmail charge and 12 months imprisonment on the theft charge. There had been an attempt to get money from a person who owed it to one of the applicants who brought along others to attempt to enforce his demands for repayment. The court said:

"Taking into account that a real dispute as to wages was the root of this matter, that the attempt to resolve the dispute may well have become more heated than the applicants anticipated it would, that the real violence and threats came from the other two persons and, in particular, that the applicants are first offenders of good character we are satisfied that the sentences were too severe."

22. But that is not analogous with the situation here. This was not an attempt to resolve a dispute. It was a direct, planned attempt at enforcement., Those who are owed money in Hong Kong cannot be permitted with impunity to act in the manner in which these three applicants did. Whatever justification - although Mr McKenzie-Ross has expressly disclaimed the use of the word "justification" - they may think they had in their own minds does not condone what they did.

23. First of the mitigating circumstances urged on us is that the debt was due, -a debt incidentally which had been increased vastly by the exorbitant rate of interest originally agreed and which was the debt which these men were attempting to recover; second, that the applicants, not having been told at the time why there was an element of deterrence in the sentences passed upon them, could well now have a sense of grievance. In any event the element of deterrence would have in effect been lost because of the fact that no reasons were given at the time.

24. Bearing in mind the submissions made to us and also the severe assaults - and these were not, as suggested, minor - the nature of the fear into which Mr Lam was placed and the threats made to him, we have considered the quantum of the sentence passed. We are not of the view that it would warrant our interference. We do not think for a moment that a suspended would have been correct. The application for leave to appeal against sentence is refused. The application for leave to appeal against conviction was dismissed at an earlier stage in the hearing.