HKSAR v. CHAN CHEUK HONG

DCCC 396/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 396 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 23), appeared before me and was convicted on his own plea of “Claiming to be a member of a triad society” (Charge 1), “Blackmail” (Charge 2 & Charge 4), “Theft” (Charge 3 & Charge 5), “Trafficking in a dangerous drug” (Charge 6) and, lastly, “Failing to surrender to custody without reasonable cause” (Charge 7).

2.  These seven charges involve two blackmail incidents, one trafficking in dangerous drugs, and the defendant absconded when his case was transferred to the District Court in August 2014.

Facts

3.  And the charges (except Charge 7) were as a result of a decoy operation launched by police since June 2011 targeting triad and drug-trafficking activities in Sheung Shui, New Territories.  In the operation, a decoy police officer, PC4116 (PW1), disguised himself as a casual transportation worker and drug addict and was deployed to collect evidence against a triad society, Wo Shing Wo, active in Sheung Shui area.

Charges 1 to 3: The first blackmail incident

4.  On 4 August 2011, at around 1:20 pm, PW1 was briefed by his senior on operation matters and, as a result, at around 6:05 pm, he went to the pavement outside Shek Wu Hui Jockey Club Clinic, Ground Floor, Nos 108-130 Jockey Club Road, Sheung Shui to gamble with the people playing cards thereat.

5.  At around 6:30 pm, 4 males, including the defendant, approached PW1, telling him that he was called “Cheuk Si Hong” of Sheung Shui Wo Shing Wo, line of “Big Nose”.  He then told PW1 that there were rules to play cards there which were to pay money to his followers. 

6.  PW1 complied and he took out a marked HK$100 banknote and gave it to one of the three followers who took it and confirmed receipt correct with the defendant.  The four males then left together.

Charges 4 & 5: The second blackmail incident

7.  At about six weeks later, on 16 September 2011, at around 5 pm, PW1 was briefed again by his senior to go to the same location outside Shek Wu Hui Jockey Club Clinic to gamble with the people thereat.

8.  At around 7 pm, the defendant emerged and approached PW1 again and asked him if he had paid the protection money, saying that he had to pay HK$100 if he wanted to play cards there.  PW1 also complied and gave the defendant another marked HK$100 banknote.  The defendant then left with the marked money.

Charge 6: The drug trafficking incident

9.  On 13 October 2011, at around 1:20 pm, PW1 was briefed by his senior on operational matters.  At around 9 pm on the same day, PW1 received a call from the defendant who claimed himself to be “Ah Wai” and working for one person known as “Ngau Chai”.  He offered PW1 to sell him cocaine and also “Ice”. 

10.  PW1 replied that he wanted 10 “drops” of cocaine and then the defendant told him to prepare HK$5,000 and they were appointed to meet up later in Choi Yuen Estate. 

11.  At around 9:30 pm, PW1 saw the defendant driving a private vehicle outside MTR Fanling Station, Fanling Station Road.  The defendant then gestured PW1 to get into the car.  PW1 complied, and then the defendant gave a cigarette box with 10 small plastic bags containing suspected cocaine inside.  PW1 then handed over HK$5,000 marked banknotes to the defendant.

12.  Those 10 small plastic bags containing suspected dangerous drugs were subsequently examined by the government chemist and found to contain a total of 2.63 grammes of a solid containing 2.01 grammes of cocaine.

13.  The decoyed operation turned overt on 14 November 2011 but it was not until 17 January 2014 that the defendant was arrested by the police at his home at Choi Yuen Estate.

14.  In an identification parade, PW1 positively identified the defendant as the person who twice blackmailed him and took $100 from him as protection money on 4 August and 19 September 2011 and also as the person who sold him the cocaine on 13 October 2011.

15.  The triad expert confirmed that Sheung Shui Wo Shing Wo is a triad group active in Sheung Shui area and the line of “Big  Nose” means a faction of the triad group under a person nicknamed “Big Nose”.

Charge 7: The absconding charge

16.  The defendant was granted court bail on 2 June 2014 when he was charged in the magistracy.  He was ordered to attend the District Court on 20 August 2014.  However, he failed to surrender to the custody as was appointed by the court without reasonable cause.  About a year later, on 3 August 2015, the defendant was re-arrested during a stop-and-search investigation on the street. 

The defendant’s criminal record and his background

17.  The defendant has one previous criminal record of “Assault occasioning actual bodily harm” in 2009 for which he was sentenced to 80 hours of community service.

18.  The defendant is still single.  He was educated up to Form 1 secondary education in Hong Kong.  He is the youngest son of the family.  According to mitigation, he has an elder brother and an elder sister.  Both are working now.  His father is now aged 53 and his mother is a housewife.

Mitigation

19.  In mitigation, it was submitted that the reason why the defendant committed the present offences was because he was under the bad influence of his peers after he had left the school.  At the time of the offence, he was unemployed but before that, he used to work as a transportation worker earning about HK$7,000 to HK$8,000 a month.

20.  I was told that the defendant was very remorseful and he wanted to turn a new leaf.  He was feeling ashamed to his parents for what he had done and asked the court to give him the last chance to get back to the right track.  I was further told that the defendant had been involved in the triad society Wo Shing Wo for the last two to three years before the present offences.

21.  It was also submitted for my consideration letters prepared by the defendant, his elder sister and also two district councillors.  I am not here to repeat the full content of the letters.  Suffice it to say that the letters all spoke of the defendant of a good nature but was lured by his dubious peers to commit the offences.  All the authors of the letters, including the defendant, ask the court to give him the very last chance.

22.  As to the reason why he absconded and did not appear in the District Court, I was told that the defendant simply did not have the courage to face the consequences of what he had done.  In the defendant’s own letter, he said he was very worried and feeling uneasy during the absconding period and was all the time afraid of being caught, and at one time, he even thought of committing suicide.  In any event, it was submitted that he eventually pleaded guilty and now has the courage to face the consequences of what he has done. 

23.  It was finally submitted that the court, when considering passing the sentences in respect of all these seven charges, I should take into account the totality principle and give a lenient sentence so that the defendant can be released from the prison as soon as possible to get back with his family.

Sentencing considerations

24.  The present offences involved four separate incidents.  The two blackmail incidents committed in the space of about six weeks.  The first blackmail incident related to Charges 1 to 3 while the second blackmail incident related to Charges 4 to 5.  The third incident of course is another separate offence which involves the defendant’s selling of cocaine to PW1 and that relates to Charge 6.  The last separate incident is of course the absconding offence in Charge 7 when the defendant was appointed to appear in the District Court but he simply absconded.

Charge 1: Claiming MOTS

25.  In relation to Charge 1, “Claiming to be a member of a triad society”, the defence has properly acknowledged that the usual range of sentence for this offence is between 12 to 18 months’ imprisonment. (see HKSAR v Tse Yiu Ming, CACC 75/2007, unreported)

26.  Here, the defendant was not just claiming to be a member of triad society in a social context by introducing himself but with a view to threaten PW1.  Obviously, he made the claim that he was a member of a triad society to instil fear so as to obtain protection money.  In my view, the proper starting point should be 15 months.  

Charge 2: Blackmail

27.  The demand for protection money in this Charge has the hallmarks of a triad society.  It was particularly serious when the defendant had already claimed himself to be a triad member.  Also, in this first incident, he demanded the money in the presence of another three male persons, a group of thugs. 

28.  However, I take into account that the demand was only one-off as opposed to the periodic payments that are more serious in this type of offence.  Also, the sum demanded is only HK$100.  In the more serious cases, the Court of Appeal has said that a starting point as high as 4 years would be appropriate. (see HKSAR v Tam Yun Chuen [2009] CU 1357)  Because of the reasons I have spelt out in this charge, I therefore consider that a suitable starting point should be one of 3 years.

Charge 3: Theft

29.  A theft charge will usually appear side by side with a blackmail charge.  It was in relation to the same incident.  Although the money involved is only small, HK$100, the amount of the money is not the only factor in deciding the level of the sentence.  As a matter of principle, I still consider that a starting point of 9 months is suitable.

Charge 4: Second blackmail incident

30.  The same features appear in this charge as in Charge 2 except that it was a repeated offence targeted on the same victim, PW1, only about six weeks later.  Normally, a higher starting point should be appropriate.  In this case, however, I took into account that the defendant acted alone and did not expressly mention his triad background which probably was due to the fact that the victim had been warned the first time previously.  In any event, even without mentioning of the triad background, the word “protection money” is by itself already a hallmark of triad activity. Therefore, in the end, I still consider that the same starting point 3 years should be appropriate in this charge.

Charge 5: Theft

31.  For this theft charge, as the same rationale in Charge 3, I will also adopt 9 months as the starting point.

Charge6: Trafficking in DD

32.  According to the Court of Appeal, the sentencing guidelines for heroin are applicable to cocaine. (see AG v Rojas [1994] 1 HKC 342).  In R v Lau Tak Ming & Others [1990] 2 HKLR 370, the tariff for heroin has laid down that up to 10 grammes of the dangerous drugs, the starting point should be 2 to 5 years.

33.  In this charge, the amount involved is 2.01 grammes of cocaine.  Applying the tariff, therefore I consider that the starting point should be 2 years.

Charge7: Absconding Charge

34.  I take into account the fact that the defendant has been absconded for almost a year.  I therefore use 6 months as a starting point. 

1/3 Discount

35.  In sentencing, I therefore in summary adopt the following starting points in each charge and reduce them by one-third because of the defendant’s plea.  I adopt a starting point for Charge 1 of 15 months and reduce it to 10 months; for Charge 2 of 3 years and reduce it to 24 months; for Charge 3, 9 months and reduce it to 6 months; for Charge 4 of 3 years and reduce it to 24 months; for Charge 5 of 9 months and reduce it to 6 months; for Charge 6 for 2 years and reduce it to 16 months; and lastly on Charge 7 of 6 months and reduce it to 4 months.

Totality

36.  In respect of all these seven charges, obviously, there is some overlapping, and the principle of totality requires me to adjust the sentences accordingly. 

37.  In respect of each blackmail incident, it is true that it is separate and distinct offence.  Thus, it would not be right to order concurrent sentences in respect of these two blackmailing incidents.  In the first blackmail incident, it involves Charges 1 to 3.  I order the sentence on Charge 3 to run concurrently with Charge 2, and I order that 2 months of the Charge 1 to run consecutively to the sentences on Charge 2 and Charge 3, therefore making a total of these three charges 26 months’ imprisonment.

38.  In the second blackmail incident, I order that the sentences on Charge 4 and Charge 5 to run concurrently, making a total of 24 months’ imprisonment. 

39.  Although, as said, the two blackmail incidents are separate and distinct offences targeting at the same victim, I will still order that two-thirds of the sentence on the second blackmail incident ie 16 months shall run concurrently with the first blackmail incident, and that is the sentences of Charges 1 to 3.  In other words, the total sentences on Charges 1 to 5 will be a total of 34 months (26 months + 8 months).

40.  As for the remaining two other charges and that is the trafficking and also the absconding charge (Charges 6 & 7), I take the view that these two are separate offences and were distinct in nature. Even taking into account the principle of totality, I have to order that the sentences of these two charges to run wholly consecutively to the sentence that I have ordered in respect of Charges 1 to 5 (34 months + 16 months + 4 months).

Order

41.  The total sentences therefore for these seven charges is therefore 54 months’ imprisonment and that is 4 years and 6 months.