ATTORNEY GENERAL v. TONG KAI MAN

IN THE COURT OF APPEAL

 1987 No.7
Application for Review

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J U D G M E N T

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Roberts, C.J. -

1. This is an application by the Attorney General for the review of the following sentences, passed on TONG Kai-man after trial for a variety of offences -

Carrying on the business of a money lender - 18 months' imprisonment.

Four charges of lending money at an excessive rate of interest - 12 months' imprisonment on each charge.

Common assault – 1 month’s imprisonment.

Criminal intimidation - 12 months’ imprisonment.

Three charges of attempting to pervert the course of public justice - 6 months’ imprisonment on each charge.

2. All the sentences were ordered to run concurrently, so that the total sentence imposed was one of 18 months’ imprisonment.

3. Counsel for the Crown has accepted that, taken by themselves, the various sentences are not inappropriate, but argued that the total sentence of 10 months' is wholly inadequate, in view of the number and variety of offences, and that the trial judge erred in regarding all the offences as sufficiently part of a single series of transactions to justify the imposition of concurrent sentences.

4. Crown Counsel did not submit that the Deputy Judge was wrong in making the sentences for carrying on the business of a money lender and for lending at excessive rates concurrent ~ nor that he was wrong in ordering that the sentences for common assault and criminal intimidation should be concurrent inter se. But he contended that the twelve months' sentence for criminal intimidation should be consecutive to the sentences for carrying on the business of a money lender and that the three concurrent sentences for attempting to pervert the course of justice should also run consecutively to the other sentences, thus making a total of 36 months' imprisonment.

5. The sentence of 18 months' for carrying on the business of a money lender is a severe one, in view of the fact that the maximum penalty for that offence is one of two years' imprisonment. This, however, was a determined money lending operation which was effected with considerable cunning involving not only straightforward loans of money, but also a system for disguising as hire purchase agreements what were in reality loans of money.

6. We were referred, very fairly, by Mr. Cross, who appeared for the Crown, to the same judge's comments when a few weeks I later he sentenced HO Chi Keung to 18 months' imprisonment after the latter had also been convicted on the first charge. In his reasons for sentence, the Deputy Judge observed that the fact that HO was a serving police officer at the time of the offence, was an aggravation which made his role substantially more serious than that of the respondent, whose conviction on ten charges attracted aggregate and concurrent sentences of 18 months' imprisonment.

7. Whatever view the Deputy Judge may have formed, at a later stage, when dealing with HO, we are not prepared to say that, in relation to the activities of this defendant, a sentence of Id months' on the first charge was so inappropriate that we should interfere with it.

8. Nor do we see any reason to interfere with the individual sentences imposed for lending money at excessive rates, common assault, criminal intimidation or perverting the course of public justice, all of which appear to us to be entirely reasonable.

9. The various loans, which form the subject of the four charges for lending money at an excessive rate, span a period between November 1985 and March 1986.

10. The common assault took place on  30th December, 1985 and the criminal intimidation on 7th January, 1986.

11. These two offences, both committed against LEUNG Pei-tak, who had borrowed money on 7th November, 1985, are quite distinct criminal acts and, in accordance with normal principles, the sentences for those crimes should run consecutively to those imposed on the earlier charges for carrying on the money lending business without a licence.

12. Similarly, the three charges of perverting the course of public justice all arose from conversations between the respondent and a potential witness in the months of May and June 1986, at a time when the respondent’s activities were under investigation by l.C.A.C. The charges alleged that the respondent had given instructions to a potential Crown witness as to a false version which he should give of events if questioned by the Independent Commission. These are, again, offences which. are entirely distinct from the others to which we have already referred and we consider that the Deputy Judge ought to have made those sentences run consecutively as well.

13. We would, therefore, allow the application and vary the sentences imposed on the respondent in the following manner.

14. We would not interfere with any of the individual sentences but order that the sentences of 18 months' and 12 months' for carrying on the business of a money lender and of lending money at excessive rates of interest should run concurrently; that the sentences of 1 month and 12 months' . for common assault and criminal intimidation should run concurrently between themselves but consecutively to the 18 months'; and that the three sentences of 6 months' for attempting to pervert the course of public justice should run concurrently between themselves but consecutively to the 18 months' and 12 months'.

15. The result would be a total sentence of 3 years' which, in our view, is the proper one, into account the overall gravity of the various committed.

16. As I indicted to counsel in the course of argument, this is a not unfamiliar history. A person who carries on money lending without a licence, who lends at an excessive rate, who deals with recalcitrant debtors by violence and intimidation and who, if necessary, to protect himself, is prepared to subvert potential witnesses.

17. In accordance with our general practice on review, we allow a discount in the total sentence to take account of the fact that the defendant has been in double jeopardy and reduce the overall sentence of 36 months' to one of 30 months'.