HKSAR v. LUI CHUN YEUNG

CACC 310/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 310 OF 2013

(ON APPEAL FROM DCCC NO. 640 OF 2013)

________________________

BETWEEN

________________________

__________________________________

__________________________________

Hon Stock VP (giving the Reasons for Judgment of the Court):

1.  The applicant pleaded guilty before Judge Remedios in the District Court on 20 August 2013 to an offence of blackmail. He was sentenced to 2 years six months’ imprisonment and sought leave to appeal that sentence.

2.  On 21 March 2014, we granted leave to appeal, treated the hearing of the application as the hearing of the appeal, allowed the appeal, set aside the sentence, and substituted a sentence of 23 months’ imprisonment. We said we would provide reasons later; and these are our reasons.

3.  The offence was committed on 19 May 2013.  The facts are conveniently summarised by the judge in her Reasons for Sentence:

“3. On the day in question, X was the owner of the salon at that location. At 8.30 pm whilst she was working there you went into the salon and asked her to follow you out. She did as you asked. When you were outside you demanded $500 protection fee from X. X said she was scared and that you looked and sounded fierce. X told you she did not have much money and you eventually agreed to reduce it to $300. You threatened X by saying that you would collect protection fees from her every month thereafter. You further told X that if she refused to pay you $300 a month, you would set fire to the salon like what happened to the nearby shop a few months ago.

4. As X was afraid that you would injure her or cause harassment to the salon, she complied with your demand and handed you $300.

5. She then made a report to the police on the same day.

6. On the following day, she received a phone call from an unidentified male who claimed to be a friend of yours. That male told her not to pursue the matter with the police. However, X ignored him and hung up.

7. A CCTV video recording placed outside the salon captured you on that night with the victim outside the salon. Through the police intelligence they were thereafter trying to locate you for this offence.

8. Four days after you committed the offence on 23 May however you surrendered yourself to the Tuen Mun police station.  You were immediately arrested.”

4.  At the date of sentence, the applicant was aged 26 years.  He had several previous convictions mostly connected with drugs but none similar to the present offence.  The applicant was in full-time employment at the time of the offence and it was said in mitigation that at the time he committed the offence he was much the worse for drink, having consumed several bottles of beer because he had quarrelled with a colleague and because his relationship with his girlfriend had just ended; and that he spent the money he was given by the complainant ($300) on drink. 

5.  The judge categorised the case as a typical extortion exercise and took the view, quite rightly, that the experience must have been extremely frightening for the complainant not least because another store nearby had in fact been set fire some time before.  The judge said that it was clear to her that this was a triad related blackmail and that it warranted a starting point of 4 years’ imprisonment.  She gave full credit for the plea of guilty which took her to a sentence of 2 years 8 months’ imprisonment and gave two months further discount for his surrender to the police.  That is how the sentence imposed came to be 2 years 6 months’ imprisonment.

6.  Mr McGowan complains that it was wrong for the judge to conclude that this was in fact a triad related blackmail.  If the judge meant it literally, in the sense that it was a threat by triads or a triad group, the evidence was not sufficient for that conclusion and the act of the applicant in surrendering himself, as well as his record, rather suggests that he was not part of some triad group.  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.

7.  That said, the present case can be distinguished from others in which similar starting points have been adopted in that the demands in many of the other cases are made by or in the presence of a group of thugs, a fact which is intended to give greater weight to the threat; the sums demanded tend to be significantly greater than in this case; and there are often repeat visits.  None of this is to suggest that this offence was not in itself serious; the nature of the threat was indeed serious particularly by reference to an earlier fire in the neighbourhood but nonetheless it is different from the several cases to which we were referred where starting points in the region of four years were adopted.  One further significant difference, which distinguishes the case markedly from the normal triad related protection fee demand, was the behaviour of the blackmailer, shortly after the offence was committed, in surrendering himself to the police; hardly the behaviour of a true thug.

8.  We took the view in all the circumstances that the judge had erred.

9.  We took a starting point to 3 years 3 months’ imprisonment, reduced that to 26 months’ imprisonment to give credit for the plea of guilty; and reduced that further by three months because of the act of surrender, resulting in a sentence of 23 months’ imprisonment.