HKSAR v. SO CHI WAH AND ANOTHER

DCCC1430/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1430 OF 2009

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Reasons for Sentence

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1.  Defendants, you have pleaded guilty to a charge of conspiracy to blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, and sections 159A and 159C of the Crimes Ordinance. You have admitted that between 2 September 2009 and 20 October 2009, in Hong Kong, with a view to gain for yourself or another or with intent to cause loss to another, you conspired together to make unwarranted demands of moneys from Chan Ho-wing with menaces.

2.  The victim, Chan Ho-wing, at the material time was in fact acting as an undercover police officer.  The undercover officer was directed in a police operation to go undercover against suspected criminal activities in Kowloon.  This operation commenced in December 2008 and turned overt on 9 November 2009, that being the date to which you, the 2nd defendant, were arrested, and, 3rd Defendant, you were arrested the day after.

3.  In this operation, the undercover officer obtained employment as a waiter in a restaurant in Fa Yuen Street, Mongkok, using an alias in April 2009.  Whilst working there, he came to know you, the 2nd defendant, in May 2009 and in August 2009 came to know you, the 3rd defendant.  3rd Defendant, you arranged for the undercover officer to open a mobile stall as a second-hand phone dealer.  This stall was set up on 28 August 2009.  The stall, as I am informed, is just really two boards which is placed on the street which are display boards saying that they are second-hand phone dealers.  The display boards were in fact given to the undercover officer by you, D3.  The stall was arranged to be set up outside the Mongkok Plaza at 36-42 Soy Street, Kowloon.

4.  A few days after the opening of the stall, D3, you had asked the undercover officer how much he had earned, and the officer told you about $200.  You then told the undercover officer to give you that amount of money.  Your reason and explanation to him was that if he did not pay you the money, he would not be able to operate the stall at that location and that the whole street in fact paid these “tor dei” for local bully fees in that way.  You told him you would come to collect these “tor dei” fees every Wednesday. 

5.  It transpired that you did eventually collect moneys on 10 September at $150, 20 September at $400, 5 October at $600, and 20 October at $300; the total amount of $1,650 from the undercover officer for these very purposes.

6.  3rd Defendant, you had told the undercover officer on 10 September that the money you were collecting was to be given to another person and that money was to be paid to Shing Wo, and for that reason, the undercover officer could operate his stall at that location.

7.  2nd Defendant, you had in fact seen the undercover officer on 20 September, and you had told the undercover officer that he was operating in “their street,” that is, your street, and that is how it is in your street.  You also told the undercover officer that you were collecting “tor dei” money for another person.  On that occasion, you were together with the 3rd defendant and the undercover officer.

8.  On 20 October, you again saw the undercover agent and you were with the other person.  You then on that day told the undercover officer that the 3rd defendant had reported to you that the undercover officer had not paid any money.  You told the undercover agent he had better pay money to the 3rd defendant that day and told the undercover agent to locate the 3rd defendant.

9.  Less than a month later, you both were arrested by the police and the operation turned overt.

10.  Defendants, I have taken into account the mitigation put forward by your counsel, Mr Alan So.  For you, the 2nd defendant, you are 40 years of age and have 19 previous convictions but none similar to the present offence.  Mr So has placed before me two letters.  One written by a district councillor, Mr Wong Yiu-choi, and the other a legislative councillor, Mr Wong Yuk-man, both informing me that you are a responsible and hardworking individual and married with two children, and which you are deeply remorseful for your crime and therefore pleaded guilty.  They ask me for your leniency.

11.  For the 3rd defendant, you are aged 59. You have two previous convictions but many years ago, about 40 years ago in 1961 and 1962.  You are unemployed and are suffering from kidney disease since 2006.  The medical appointment slip from the Kwong Wah Hospital has been submitted to me.

12.  Mr So, your counsel, has informed me that both of you are in fact second-hand phone dealers and operated in the same manner as the undercover agent.  3rd Defendant, you had become acquainted with the undercover agent, and as he had complained to you that he was facing a lot of pressure and working very hard for little money, you had kindly offered to help him operate a stall in the street.  You taught him about the trade and introduced him into it and provided him with the display boards.  He was paying you the protection fees merely for the purpose of you passing that on to the other person.

13.  Mr So informs me that both of you in fact had to pay the same protection fees as well for your own business or stall and that you received no benefit from the fees collected but only passed them on. Mr So asks me to look at this case in a very different light from the other blackmail-type cases.  The protection fee was not substantial.  There was no violence, and there were elements of entrapment.  Clearly, you received no benefit from the protection fee.

14.  Mr So has also submitted to me two cases. One of them is a magistracy appeal for blackmail which after trial demanding a “tor dei” fee of $10,000 from a hawker.  The magistrate imposed 18 months after trial, and on appeal, that sentence was not disturbed. 

15.  He has also produced to me another authority. That case was HKSAR v Wong Ching Ying HKMA474 of 2005.  And he has also produced to me another case called CACC565/1999, HKSAR v Wong Yan Ming (1st defendant) & Lo Li Yau, Joy (2nd defendant) in which one was charged of blackmail.  The defendants were sentenced to 3 years’ imprisonment.

16.  Clearly, there are no sentencing guidelines for blackmail.  Each case depends on its own facts.  I accept Mr So’s mitigation that this certainly is at the lower end of any blackmail case.  The protection fees were of a very small amount over a period of about six weeks, totalling $1,650.  I accept there was no actual violence involved.  There was, however, in this case reference to “tor dei” and also to a triad society of Shing Wo.  Any type of blackmail which has reference to these is taken very seriously.

17.  The stall itself was not a fixed shop, I accept that, and it was set up there really through the introduction of you, D3. This, however, does not give you any right to ask for protection money. Whatever you may have had to do does not mean you should impose that on other people.  As has been said in many of the previous cases, this practice of asking for “tor dei” or protection fees must be deterred.

18.  Defendants, this is not the most serious type of blackmail.  There was an element of entrapment albeit it was an undercover officer employed.  The protection fee, as I mentioned, was on the smaller scale.  In those circumstances, I take a starting point of 2 and a half years’ imprisonment, had I convicted you after trial, giving you full credit for your plea of guilty and the fact that you have shown the court your remorse, I reduce that term by one-third to 1 year and 8 months’ imprisonment.