HKSAR v. CHAN HEI LUN

DCCC 769/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 769 OF 2014

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

---------------------
Reasons for Sentence
---------------------

1.  The defendant has been convicted after trial of one offence of conspiracy to commit blackmail. The facts that have been proved in the case show that the defendant entered into an agreement to blackmail a pharmacy in Sheung Shui. His involvement was limited to collecting the protection money from the police. There is no evidence in the trial of further participation by using of threats or the like, and the total amount of money that was demanded was $28,000.

2.  The defendant’s antecedents have been proved in the case.  They show that he has one previous conviction in 2007 for possession of a dangerous drug.  He was subject to a probation order which was eventually extended whilst he underwent treatment.  But the report I have obtained appears to show that he has rid himself of his previous addiction.  

3.  Prior to sentencing, I obtained a background report on the defendant.  He is now 25 years old.  Prior to his incarceration, for the background report, he was in regular employment with a company called Prova Inspection and Testing and had been so since December 2011.

4.  The background report showed the defendant had abused drugs, had relapsed into drug abuse and had undergone withdrawal treatment twice from October 2008 to July 2010, and it was after that that he was able to start work with Prova.  He is described as hardworking, willing to learn, relates well to colleagues, described by his employer as honest.  He has a girlfriend, a Miss Chung, and they had subject or prior to this, his conviction, proposed to become married at a later stage.

5.  Overall, the defendant is described as simple-minded and easily influenced by undesirable peers so that that led to his present law-breaking behaviour, and the defendant finally realised that the undesirable peers’ influence led to the commission of the present offence.  He is described as being willing to take up the legal consequences of his act and asks for leniency.

6.  The overall import of the background report is that the defendant is a person who has experienced difficulties in the past particularly with addiction.  He has overcome that and managed to take up a responsible place in society.  However, he is subject to I think what the other word that could be used is a degree of naivety and a lack of appreciation of the legal consequences of his actions.

7.  As far as the offence is concerned, it can be described as a serious offence.  It involves the demand of money, unwarranted threats and the use of triad language and argot which suggests triad involvement in the demand that was made. 

8.  There is no guideline sentence for this particular offence but there are similar cases where sentences of up to 4 years’ imprisonment have been adopted as a starting point.  I refer particularly to HKSAR v Wong Fu Wa [1998] HKCA 174 where that original figure was posited as a result of evidence those offences or those kind of offences were increasing, and that was confirmed in the case of HKSAR v Tam Yun Chuen at HKCA 317 [2009] because it can be summarised that where demands for significant sums of money are made on a regular basis coupled with threats or suggestions of violence or triad involvement, a starting point for sentence of 4 years’ imprisonment could be appropriate.

9.  I have been referred to the case of HKSAR v Wong Yin Chak where a lower starting point of 3 years’ imprisonment was adopted. 

10.  In determining the sentence for this case, I note the defendant is involved in at the completion of the blackmail and it is evident that he is easily led and acted foolishly.  Of some significance in sentencing is his lack of triad background or previous involvement before this case.  The defendant is still a young man and prior to his involvement in this offence had a responsible job and was planning to start his own family unit.

11.  In respect of this particular defendant, having regard to the facts of the case and his personal mitigating circumstances, I consider that the normal adopted sentence can be tempered somewhat, and the sentence I will impose in respect of this offence is one of 3 years’ imprisonment.