HKSAR v. KWOK MY FOOK

DCCC 922/2017

[2018] HKDC 462

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 922 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant Kwok My Fook pleaded guilty before me to 4 charges of Criminal Intimidation (Charges 1, 2, 4 & 5) with the prosecution not proceeding with Charge 3, a charge of Blackmail. I have therefore entered a verdict of not guilty against Charge 3.

2.  The particulars of Charge 1 are that Kwok My Fook, on a day unknown in early July 2014, at the park, near Yan Chi House (Block 4), Tin Yan Estate, Tin Shui Wai, New Territories, in Hong Kong, threatened PW1 with injury to her person, with intent to alarm the said PW1.

3.  The particulars of Charge 2 are that Kwok My Fook, on a day unknown in late March 2017, in Hong Kong, threatened PW1 with injury to her person, with intent to alarm the said PW1.

4.  The particulars of Charge 4 are that Kwok My Fook, on 19 April 2017, in Hong Kong, threatened PW2 with injury to the person of PW1, with intent to alarm the said PW2.

5.  The particulars of Charge 5 are that Kwok My Fook, on 20 April 2017, at Ping Fai Path, Yuen Long, New Territories, in Hong Kong, threatened PW1 with injury to any other man that the said Kwok My Fook might see the said PW1 was with, with intent to alarm the said PW1.

Admitted facts

6.  The facts admitted by Mr Kwok may be summarized as follows.

7.  Mr Kwok and PW1 were former boyfriend and girlfriend.  They started dating in 2012 and ended their relationship in June 2014.

8.  PW2 (aged 18) was the daughter of PW1 born out of a previous marriage. At all material times, PW2 and Mr Kwok knew of each other’s existence and status.

Charge 1

9.  In early July 2014, at about 11 pm, PW1 ran into Mr Kwok outside the subject residential building.  They then went to a nearby park and discussed about their relationship.  By about 1:30 am, Mr Kwok lost his patience with PW1’s refusal to resume the relationship.  He threatened that he would throw her off the 30^th Floor and make it look like suicide, and that he would further die with PW2.  PW1 was frightened and believed Mr Kwok could carry out these threats because he knew where she and PW2 worked and lived.  As a result of the threats, PW1 agreed to think about resuming the relationship.

10.  After this incident, Mr Kwok and PW1 would sometimes meet several times a month, often at Mr Kwok’s residence.

Charge 2

11.  After PW1 had met a new boyfriend in January 2016, she was determined to end all contact with Mr Kwok.

12.  On a day unknown in late March 2017, PW1 received a call from Mr Kwok requesting her to visit him again.  When she refused, Mr Kwok said to her that he would always find her.  He also said that he was willing to make a scene if that was what she wanted, and that he would throw her off the 30^th Floor onto the street.  Mr Kwok then hanged up.  PW1 was scared because Mr Kwok had been harassing her during all this time.

13.  By April 2017, PW1 had finally refused to contact with Mr Kwok anymore. Mr Kwok then harassed her by repeatedly calling her and asking to re-unite with her as a couple.  Mr Kwok also appeared at her work place and near her home. Mr Kwok also called her and was able to tell her exact location and who she was with.

Charge 4

14.  On 18 April 2017, PW1 received a Whatsapp text message from Mr Kwok requesting her to go to his residence on the next day.  PW1 ignored him.

15.  On 19 April 2017, at around 4:30 pm, PW2 received, on her mobile phone, 4 photos and one video from Mr Kwok via Whatsapp.  PW2 was disgusted to find that PW1 was featured nude and was with Mr Kwok in the photos and video.  Mr Kwok then messaged PW2 and asked her when PW1 would return.  PW2 replied that she did not know.

16.  At about 5:07 pm the same day, PW2 received a call from Mr Kwok who told PW2 that her mother was playing with his affection.  He further said that if PW1 did not contact him or if she continued to avoid him, or if they did not have a proper discussion, he would chop PW1.  Later in the same telephone conversation, Mr Kwok also said that he wanted PW1 to pay him HK$200,000 as break-up fee and asked PW2 to help persuade her mother to pay.

17.  PW2 felt scared that Mr Kwok would injure her mother.

Charge 5

18.  On 20 April 2017, at around 7:40 am, at the subject location, Mr Kwok appeared in front of PW1 with a silver pipe in each hand.  The pipes were each about 1 foot in length with one end sharpened.

19.  They argued with each other.  Mr Kwok told PW1 fiercely that if he ever saw PW1 with another man, he would break that man’s leg tendons.  After saying that, Mr Kwok hit the two pipes against each other before putting them back into his bag.

20.  Thereafter, they went into a nearby restaurant to talk, during which Mr Kwok asked PW1 for HK$200,000 break-up fee.  PW1 refused.

21.  At around 4:30 pm the same day, PW1 was leaving her restaurant workplace when Mr Kwok appeared again.  He asked her to resume their relationship but PW1 refused and left.

22.  Fearing for the safety of herself, her new boyfriend and PW2, PW1 reported the case on 21 April 2017.

23.  On 26 April 2017, Mr Kwok was arrested at his residence.  Under caution, Mr Kwok admitted that:-

(a) He had said to PW1 that he would break the leg tendons of PW1’s boyfriend. However, he did not intend to hurt anyone. He only wanted to frighten PW1 because he did not want her to be in a relationship with another man. He had already thrown away the two metal pipes which he had held; and

(b) He had sent two photos, which captured PW1 making love, to PW2; he sent the photos to hassle PW2 because PW1 was ignoring him.

24.  Back at the station, Mr Kwok admitted under caution that:-

(a) He and PW1 had been dating for 6 to 7 year; they were still in an ongoing relationship;

(b) He had sent to PW2 about 3 to 4 photos and one video of his and PW1’s making-love activities; these were recorded with PW1’s consent using the webcams set up at his home;

(c) He had called PW2 and said he had bought gifts worth HK$100,000 for her mother and asked if PW1’s new boyfriend had bought her gifts worth HK$200,000; he said to PW2 that he would chop PW1, although this was just to frighten PW2 so that she would quickly ask PW1 to contact him; and

(d) He waited for PW1 to appear in the morning of 20 April 2017 in Yuen Long because PW1 did not answer his calls and he could not find her; he saw PW1 and asked her about her new boyfriend; he took out two metal pipes (each about 20 cm long) in front of PW1 and said he would break PW1’s new boyfriend’s leg if she kept seeing the new boyfriend; and

(e) He found those pipes at a nearby trash bin but he had thrown them away already.

Criminal record

25.  Mr Kwok enjoys a clear record.

Antecedents

26.  The agreed antecedents statement shows that Mr Kwok is aged 61 (57-60 at the time of the offences); he was born in Macau.  He has received F3 education also in Macau.  He had worked as a fisherman and was a marine refueler until the time of arrest.  He claims to be suffering from diabetes, hypertension, prostatitis, and high uric acid.  He was twice divorced in 1997 and 2011 respectively.  He has two sons and one daughter from the first marriage and they were looked after by him.  He claims to have been living with his children in Tin Shui Wai at the time of arrest.

Mitigation

27.  Ms Emily Cheung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Kwok.

28.  Ahead of the hearing, the solicitors acting for Mr Kwok had submitted by correspondence 5 mitigation letters (with English translation) written respectively by Mr Kwok himself, by his three children, by his younger siblings, by his second ex-wife, and by two of his friends.

29.  Also prior to hearing, Ms Cheung had filed a total of 4 sentencing authorities none of which because of their statuses are however binding on this court.  They are:-

(a) HKSAR v Sri Atmi, DCCC 621/2011;

(b) R v Tsang Yuk Kwong, HCMA 480/1995;

(c) Raymond Yan Kai Yip v HKSAR, HCMA 95/2005; and

(d) Sentencing in Hong Kong, Cross & Cheung, 7^th Ed 2015, p 621.

30.  Ms Cheung’s submissions may be summarized as follows.

31.  All close family members are in court to support Mr Kwok who would like to apologize most sincerely to PW1 and PW2.  Mr Kwok is deeply regretful for those threatening words and nasty conduct levelled against PW1 and PW2 which had caused anxiety, fear, insult and ill-feelings to them.  He would like the prosecution or the police to relate this important message to them so that they know Mr Kwok will not further indulge in this past conduct.

32.  Mr Kwok has been leading a law-abiding life for 60 years with a clear record.  He has a close connection to and family root in Macau; he was born and received education and was brought up there.  He had maintained employment by working as a fisherman with his father who had since passed away.  In 2000, the fishing vessel caught fire and they lost everything so he had to work as a marine oil refueler for a company stationed in Cheung Chau.  He had been working continuously in this industry for 17 years until arrest.  Before arrest, he was earning $25,000 a month but has since lost his job because of his detention.

33.  Mr Kwok had two marriages; both ended in divorce.  All his children (now in their thirties) were born out of his first marriage; Mr Kwok took care of all of them when the marriage dissolved in 1997.  That is why all three children respect Mr Kwok as a responsible and loving father.  At the time of arrest, Mr Kwok lived with his mother (87).  The three children would from time to time pay visit to his residence.

34.  It all started like this.  Mr Kwok met PW1 in a restaurant where the latter was working as a receptionist.  After about one year, they started a close relationship in 2012.  However, and this is according to the witness statement of PW1 (not produced), in 2013, she realized that there were character differences and conflicts between them.  So in that year, their relationship broke down.  However, they still maintained frequent contacts and intimate relationship with each other.  Mr Kwok was looking after her financially.  She was a single parent with a daughter.  Mr Kwok was buying her gifts and giving pocket money to her daughter.  In 2014, PW1’s mother was quite sick and she admitted in her statement that Mr Kwok had given her 20,000 RMB to pay for the medical expenses.  In PW2’s witness statement (not produced), she agreed that Mr Kwok had given her pocket money to the tune of $10,000 a year. PW2 also said that Mr Kwok had bought her an iPhone and given her a red packet of $5,000 in the Chinese New Year of 2017.

35.  According to Mr Kwok, he had paid 100,000 RMB as medical and funeral expenses for PW1’s mother.  According to PW1’s witness statement, she could only agree that Mr Kwok had paid 20,000 RMB for treatment of her mother.

36.  Also according to Mr Kwok’s instructions, he paid monthly pocket money to PW2 in the region of a few thousand dollars.  He also supported PW2 in all her private tuition fees which amounted to $3,000 to $4,000 per month.

37.  Although there are differences in amount between the two sides, the main point is even PW1 and PW2 agree there are regular and substantial financial contribution to them from Mr Kwok.

38.  That is the background with which Mr Kwok made the unwarranted demand of the break-up fee from PW1 when he realized that he could not save the relationship and he was drawn into a hopeless situation.  When he realized he was being dumped by PW1, he was desperate to get back compensation for hurt feelings.  It is accepted that he had no right to get back the compensation.

39.  There is no triad flavor in all the charges.  In the mitigation letters, he is described as a responsible father and caring son, a respectable elder brother, a helpful neighbor and a genuine friend.  The whole thing resulted only from emotional outbursts when a relationship had turned sour and he acted out of character.

40.  Although the 4 charges spanned between 2014 and 2017, it is submitted that the on and off relationship is partly due to the attitude and response of PW1 towards Mr Kwok.  She stated in her statement that she continued to have intimate relationship with Mr Kwok even though she accepted their relationship had broken down.  But of course this is not the excuse Mr Kwok could resort to for justifying those threatening words and nasty behaviour.  He is totally wrong.  It is submitted that Mr Kwok had used those threatening words and conduct in order to draw the attention of PW1 and PW2 to contact him.

41.  Looking back, Mr Kwok found himself foolish and acting like a coward. But now he has the courage to admit his wrongdoing in court; and all of his family members seek the forgiveness of the victims.

42.  Ms Cheung refers to the facts of HKSAR v Sri Atmi (supra) and the reasoning of Judge Yau therein in particular his reference to the case of R v Tsang Yuk Kwong (supra) and his citing of a passage of that case in para 23 of Sri.

43.  Ms Cheung emphasized that in Tsang, the appellate court was of the opinion that suspended sentence should have been imposed; however, because the appellant there had already been in custody for some two months, on appeal he was given a prison term which allowed for his immediate release.

44.  Ms Cheung submits that the facts of Sri bear some resemblance to the facts of this case and invites me to impose a suspended sentence on Mr Kwok as Judge Yau had done in Sri.

45.  Ms Cheung reminded me that Mr Kwok has been detained for almost one year since his arrest on 26 April 2017.

46.  Ms Cheung refers to the case of HKSAR v Cheng Pui Man Dicky, HCMA 765/2009, in passing because that case was mentioned in Sri.  With reference to that case, she submits that for a case with triad flavour or with more serious features, the length of imprisonment would be 12 months or less.

47.  Ms Cheung refers to page 621 of Cross and Cheung’s book (supra) and submits that for cases involving triad flavour or use of weapons or guns, it would be more serious and a long term of imprisonment would be expected.

48.  Next, Ms Cheung refers to the case of Raymond Yan Kai Yip v HKSAR (supra), also a case mentioned in Sri.  The appellate court there substituted a sentence of conditional discharge for 12 months (with a requirement that the appellant enter into a recognizance to be of good behavior in the sum of $1,000).

49.  It is submitted that, with his strong family support, it is highly unlikely that Mr Kwok would re-offend.  A suspended sentence is a fairly effective measure to alert him that he should not commit any offence again.  It also provides an opportunity for him to reform himself.  In this respect, his children and siblings all have family connections in Macau and he could relocate himself there such that there will be a total break with his previous connections with PW1.

50.  If the court thinks it suitable, it may like to call for a CSO report before sentencing.  Alternatively, if the court is not minded to give a CSO or suspended sentence, the court is invited to give a short term of imprisonment so that Mr Kwok could be released in the near future.  The basis for this is that there are special features in Mr Kwok’s case.  The court is asked to consider all relevant factors and to give him a chance.

51.  It is submitted that the case submitted by the prosecution namely, HKSAR v Tsang Wai Man (infra), is not relevant.

52.  Mr Kwok sent the photos and video to PW2 because, as he said, he felt that PW1 had been playing with his affection and he was disturbed at that time.

53.  In PW2’s statement, she stated that after looking at the first 2 photos of PW1, she immediately deleted the remaining photos.  As regards the video, PW2 had just seen the part where Mr Kwok and PW1 were merely talking in the living room without seeing any nasty images; she immediately deleted the whole video.  According to Mr Kwok, the video only lasted one minute.  Because of the early deletion, it is submitted that the injury to PW1 and/or PW2 was minimal.

Sentence

54.  The maximum sentence for a criminal intimidation offence is 5 years’ imprisonment.  There are no sentencing guidelines for this offence because the circumstances of commission can vary so greatly.

55.  I have considered the very full mitigation submissions made by and the sentencing authorities submitted by Ms Emily Cheung.

56.  I have considered the contents of the mitigation letters submitted on behalf of Mr Kwok.  There is no need for me to go over them because Ms Cheung has exhaustively gone into the details of each and every of those letters in mitigation.

57.  I have taken on board Ms Cheung’s submission that this case has special features in that there is no triad undertone, that Mr Kwok is a person of previously good character, and he enjoys the full support of his extended family members.

58.  I will give Mr Kwok full credit for his early pleas of guilty and an additional credit for his previous clear record.  There are no other mitigating factors of sufficient weight to warrant a further discount.

59.  I say at the outset that the case of HKSAR v Tsang Wai Man [2017] 5 HKLRD 887 submitted by the prosecution is not helpful because the central facet of that case was about threats made to disseminate images of sexual intercourse between the applicant and the victim which facet is clearly missing in the present case.

60.  As regards the submission that Mr Kwok had acted out of character, I have some reservations about that for the simple reason that a person does not act out of character for 4 times over a period of 3 years.  Similarly, I cannot accept a person of Mr Kwok’s seniority could act simply out of emotional outbursts for a continuous period of 3 years on and off, unless there is something seriously wrong about his emotions.  In this latter respect, this case differs from the case of Sri, Tsang Yuk Kwong, and Raymond Yan Kai Yip which all involved single incidents.

61.  The four charges differ in seriousness by the contents of the threats and the surrounding circumstances.

62.  Charge 1 involves not merely a threat to cause personal injuries but a threat to kill which is the capital crime in this and many other jurisdictions.  The surrounding facts are also serious because Mr Kwok further threatened to kill PW1’s only daughter after killing PW1.  In a way, this is worse than triad-related threats because even triads do not lightly utter threats to kill.  I am satisfied that only a man of violent disposition would utter such threats and this is another reason why I do not accept that Mr Kwok had acted out of character.  The point is it doesn’t matter whether Mr Kwok had the intention to carry out these threats.  The fact of the matter is PW1 was frightened as a result and she believed that Mr Kwok could carry out these threats because he knew where the PWs lived and worked.

63.  Charge 2 involves a second time when the threat to kill PW1 was uttered.  Although this occurred almost 3 years after the first threat to kill was made, it took place in the midst of other harassments made towards PW1.  A second threat to kill must be viewed as an aggravating factor in itself.

64.  The threat under Charge 4 may be said not to have involved a threat to kill, at least not without doubt.  However, this offence is aggravated by two surrounding circumstances, namely the sending to PW2 of photos and video showing sexual intercourse between Mr Kwok and her mother and a demand for $200,000 break-up fee.  The first circumstance is disgusting in the highest degree especially when Mr Kwok knew as a fact that PW1 and PW2 were mother and daughter; and the second circumstance is wholly unwarranted even taking into account what was said in mitigation.

65.  Charge 5 involves a threat to seriously injure someone close to PW1 and is aggravated by two surrounding circumstances, namely the display of weapons (two one-foot long metal pipes each with a sharpened end) and a second asking for the break-up fee.

66.  All in all, this case has a lot more serious features than first appears.  In order to show the court’s strong disapproval of how Mr Kwok has dealt with the situation of being “dumped” by an ex-lover, I am of the view that an immediate custodial sentence is the only appropriate sentencing option here.

67.  In determining the starting points (including the global starting point), I have also taken into account the fact that Mr Kwok is now 61 and he has a mother of 87 with whom he wishes to re-unite at the earliest opportunity.

68.  For Charge 1, I adopt a starting point 12 months’ imprisonment.

69.  For Charge 2, I adopt a starting point of 13 month’s imprisonment to reflect the aggravation.

70.  For Charge 4, I adopt a starting point of 15 months’ imprisonment to reflect the two elements of aggravation.

71.  For Charge 5, I again adopt a starting point of 15 months’ imprisonment to reflect the two corresponding elements of aggravation.

72.  Since the offences subject of the charges occurred at different times spanning over almost 3 years, and at different places, the sentences ought to be served consecutively subject only to the principle of totality.

73.  After considering totality, I consider that, in order to meet the criminality of the offences, a global starting point of 2 years 4 months’ imprisonment would be justified.  For Mr Kwok’s clear record, I will first knock off one month.  The starting point becomes 2 years 3 months.

74.  Giving Mr Kwok the 1/3 discount from the individual starting points, I impose the following sentences.

(Mr Kwok, please stand)

75.  For Charge 1, Mr Kwok will go to prison for 8 months.

76.  For Charge 2, he will go to prison for 8 months and 20 days.

77.  For Charge 4, he will go to prison for 10 months.

78.  For Charge 5, he will go to prison for 10 months.

79.  To achieve an overall sentence of 18 month’s imprisonment after plea, I make the following orders regarding the running of the sentences.

80.  Two and a half months of each of the sentences for Charges 1 & 2, and 3 months of the sentence for Charge 4, are to run consecutively among themselves, giving an initial aggregate of 8 months.  This initial aggregate of 8 months is to run consecutively to the 10 months’ sentence for Charge 5. Hence, the total sentence for Mr Kwok is 18 months’ imprisonment.