HKSAR v. SHREESH MADAN AND ANOTHER

DCCC 162/2020

[2020] HKDC 786

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 162 OF 2020

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REASONS FOR SENTENCE

1.  The defendants plead guilty to one joint charge of blackmailing X, the owner of a convenient store in Yuen Long, contrary to section 23 (1) and (3) of the Theft Ordinance[1].

2.  Full particulars of the offence are set out in the facts admitted by the defendants today. In summary between 7 February and 11 February this year D1 and D2 visited X’s store and demanded protection money.

7 February

3.  At about 10 p.m. on 7 February D1 and D2 together with six other men approached X in his store.  D1 demanded X to pay $3,000 a month as protection fee.  When X asked why he should pay D1 replied that it was for X’s safety protection.  D2 added that upon payment X would be protected.  When X refused to pay D1 said that they would return the next day and would cause trouble to X’s store if he did not pay up. 

4.  X reported the case to the police the next day.

10 February

5.  At about 4 p.m. on 10 February two men visited the store and asked X’s wife for the mobile phone contact of X.  X’s wife gave the two men the contact number.

11 February

6.  At about 9 p.m. on 11 February D1 and D2 went to the store again.  When D2 asked whether the $3,000 was ready police officers, who were laying ambush nearby, went into the store and arrested D1 and D2.

7.  Under caution D1, inter alia, admitted asking X for money and claimed that he did so in order to consign movie tickets for X’s store and to protect X’s store from being harassed by others who also wanted to consign movie tickets there.  D1 also admitted that he went to X’s store and asked X’s wife for X’s mobile phone number.

Mitigation

D1

8.  In passing sentence, I have carefully considered the oral and written submissions of Mr Hotten on behalf of D1, who is 29, single, unemployed and lives with his family in Yuen Long[2].  

9.  I take into account that D1 has a clear record. 

D2

10.  I have carefully considered the oral and written submissions of Ms Alva on behalf of D2, who is 23 and works as a casual construction site worker.  D2 is married with one son aged 7 months.  The wife and son are now living in Nepal[3].

11.  I have read D2’s mitigation letter in which he apologises to X and his wife for going to his shop and threatening him, promises never to commit anything similar in the future and asks for forgiveness.

12.  I take into account that D2 has no previous convictions for blackmail.  D2 was however sentenced to 4 months’ imprisonment for criminal damage in 2018.

Starting point

13.  There are no guidelines for blackmail, each case depending on its own facts and circumstances.  I have considered the cases submitted by Mr Hotten and Ms Alva[4].

14.  This is a typical extortion demand for money accompanied by threats of disturbance to the store if payment was not made. 

15.  In HKSAR v Fong King Choi the Court of Appeal listed a number of factors bearing on the gravity of the offence including (1) the nature and amount of the demand; whether the demand was for a one-off payment or regular payments; (2) the nature and circumstances in and by which the demand was made; whether the offender acted alone or with others; whether the demand was made on a single occasion or on repeated occasions; whether there was actual or threatened violence to a person or damage to property; whether there was an expressed or implied triad connection; whether it was part of a sustained campaign of intimidation against other victims; and (3) the consequences of the demand and the effect on the victim; whether the victim yielded to the demand for extortion money and whether any loss was suffered[5].

16.  Depending on the circumstances sentences have tended to range between 3 – 4 years’ imprisonment[6]. Where the amount is very low, for example $100 as in HKSAR v Fong King Choi and there are none of the aggravating features usually seen in a crime of this type, a starting point lower than 3 years may be appropriate.

17.  Mr Hotten submits that there is no suggestion by the prosecution that this case is linked to any triad activity[7].  Similarly, Ms Alva submits that there is no expressed or implied triad connection[8]. 

18.  In HKSAR v Lui Chun Yeung the Court of Appeal in addressing the submission the judge was wrong to conclude the case was a triad related blackmail when the evidence was not sufficient to conclude the threat was a threat by triads or a triad group said:[9]

“But the point has in it a degree of artificiality in that the offence carried certain triad blackmail overtones. Demands for protection money are the mark of triad activity not least when, as in this case, the demand was not just for a one-off payment but for regular monthly instalments; and in addition, there was the threat of serious violence to the property. It little avails a defendant who makes demands of this character to say that he is not in fact a triad, when the circumstances of the offence convey those hallmarks.”

19.  The demand was made when D1 and D2 were accompanied by six other men; the demand was not just for a one-off payment but for regular monthly payments and X was told if he did not pay trouble would be caused to his store. 

20.  I am satisfied the circumstances of the offence convey the hallmarks of triad activity.  I do however accept the submission of Mr Hotten that where there is, as in this case, no evidence the defendants were triads there should still be a distinction in sentence.  This will of course depend on the circumstances as can be seen in HKSAR v Lui Chun Yeung by the fact that on appeal the starting point was reduced from 4 years to 3 years and 3 months’ imprisonment.

21.  Both Mr Hotten and Ms Alva place reliance on HKSAR v Lui Chun Yeung.  Although in that case the owner of a salon paid $300 and was told if she did not pay $300 per month her salon would be set on fire, I am satisfied the present case is more serious.  The amount of the demand was much greater and was made in the presence of six other men whereas in HKSAR v Lui Chun Yeung the applicant acted alone and surrendered to the police. 

Sentence

22.  Although X did not yield to the demand for extortion money and no trouble was caused to the store, in all the circumstances I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate. 

23.  I am satisfied no distinction is to be drawn between the roles of the defendants.  The facts in HKSAR v Singh Gurmail, relied on by Ms Alva, which led to the court distinguishing between the roles of the defendants are very different to the facts of this case. 

24.  D2 was present when the demand was made on 7 February and was not called to the scene after X refused to pay.  D2 also returned to the store together with D1 on 11 February and was the one who asked whether the $3,000 was ready.    

25.  Giving the defendants full credit for their pleas of guilty they are convicted and sentenced to 2 years and 4 months’ imprisonment.