HKSAR v. HARPAL SINGH AND ANOTHER

DCCC 1018 & 1027/2016(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1018 & 1027 OF 2016

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REASONS FOR SENTENCE

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1.  D1 and D2 are jointly charged with one count of Blackmail (Charge 1), contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210. D1 is further charged with another count of Blackmail (Charge 2). Both D1 and D2 pleaded not guilty to the charges. After the trial, D1 was convicted of both Charge 1 and Charge 2 while D2 was convicted of Charge 1.

Summary of facts

2.  I have set out the facts of the case in some detail in my Reasons for Verdict so I shall not repeat here.  In essence, I found that on the date of Charge 1, ie 15 June 2016, D1 and D2 made verbal demands to PW1 to pay them HK$800,000 as protection fee.  D1 and D2 threatened PW1 that if he did not pay them money, he and his shops would be in trouble and would not be safe.

3.  I also found as a matter of fact that D1 made the same demand to PW1 again on the next day, ie 16 June 2016.  On that occasion, he also threatened PW1 that if he failed to pay the money, something might happen to him.

Mitigation

4.  D1 is 28 years old and was recently married with a young child.  He came from India and is now staying in Hong Kong as a Form 8 holder.  He received Form 6 education in India.  He is unemployed and is receiving assistance from the International Social Service Hong Kong for living.  He has two previous convictions and both are of different nature to this case.

5.  D2 is 44 years old and is married to a Hong Kong resident.  He also came from India and is also a Form 8 holder in Hong Kong.  He received secondary education in India.  He is unemployed in Hong Kong and is relying on his savings for living.  He has five previous convictions including three wounding convictions.

6.  Defence submitted that there is no sentencing tariff for blackmail.  Both defence counsel submitted that though both defendants have some previous convictions but none was of similar nature to blackmail.  Defence also submitted that though PW1 was attacked a few days after the dates of the two blackmail incidents, there was no evidence to suggest that the attack was in any way related to this case.  Defence emphasized that this case is purely a case of blackmail and the threats uttered by the defendants were not carried out.  All in all, defence urged the court to impose a lenient sentence.

Sentencing consideration

7.  Time and again, the Court of Appeal has indicated that blackmail is a very serious offence and substantial term of imprisonment is always called for.  The experience of being extorted is always extremely frightening for the victim. In this case, though it seems to be a one-off demand, the amount of money demanded is substantial. 

8.  I have considered two judgments of the Court of Appeal in which the sentence of blackmail had been discussed.  In HKSAR v Singh Gurmail, CACC 495/2012, the Court of Appeal held that a sentence of 3 years’ imprisonment is appropriate where the applicant made an unwarranted demand of $1,000 per month as protection fee from the proprietor of an internet café.  In HKSAR v Lui Chun Yeung, CACC 310/2013, the Court of Appeal indicated that a starting point of 3 years 3 months’ imprisonment is appropriate for a similar case where the applicant demanded $500 protection fee from the owner of a salon.  The court took the view that it was not a triad-related extortion incident therefore a lower starting point was adopted.  If it was triad-related, the starting point would be in the region of 4 years.

9.  Counsel for D1 today referred to me the Reasons for sentence of a District Court case, HKSAR v Wong Ngan Ying, DCCC 392/2010 where the defendant was given a suspended sentence after pleading guilty to one count of blackmail.  After consideration, I am of the view that the circumstances of that case are wholly different from the present case and there is nothing in common between the two cases except the charge.  In fact, the learnt judge said the suitable sentence should be 2 to 3 years’ imprisonment but she decided to suspend the sentence because of the exceptional circumstances of that case.  

10.  There is no evidence that this case is in any way related to Triad activities. However, the amount of money demanded is much larger than the two Court of Appeal cases.  Considered all the circumstances of the case, personal background of the defendants, their criminal records, the mitigation put forward and all the new materials that defence counsel very diligently put before the court today, for both charges, I am of the view that 3 years is the appropriate starting point.  The defendants were convicted after trial so there is no sentencing discount.  As a result, for Charge 1, both D1 and D2 are sentenced to 3 years’ imprisonment.  For Charge 2, D1 is also sentenced to 3 years’ imprisonment and I order the sentence of the two charges to be served concurrently.