HKSAR v. KWAN MING HO

DCCC 824/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 824 OF 2016

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Reasons for Sentence

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1.  The defendant pleaded guilty to one count of “Claiming to be a member of a triad society” (charge 1), one count of “Blackmail” (charge 3), two counts of “Theft” (charges 4 and 5, $19,200 and $19,500 respectively). He pleaded not guilty to one count of False Imprisonment (charge 2), which was ordered to be kept on file, not to be proceeded with without the leave of court.

Summary of facts

The First Incident

2.  Events of the First Incident led to the defendant’s prosecution for the offences under charges 1, 3 and 4.

3.  At around 1:45am on 6 November 2015, while PW1 (male aged 30) was walking alone across the road in Wanchai, the defendant deliberately bumped into his back when they walked past each other. PW1 apologized but the defendant and the man who was with him were not satisfied. They told PW1 that they were members of a triad society, that they had many followers, and that Wanchai was within their circle of control. They told PW1 that their followers were coming and that PW1 could not leave Wanchai.

4.  PW1 got scared and followed them to a nearby convenience store and bought them coffee as compensation upon their request.

5.  Outside the convenience store, the man that was with the defendant gave PW1 two boxes of cigarettes to hold. The man then told PW1 that they contained the dangerous drug ‘coke’ worth over $100,000, and that PW1 had now left his fingerprints on the boxes.

6.  The defendant and the man then brought PW1 to a McDonald’s restaurant in Causeway Bay to meet with one of their followers ‘Brother Sing”. PW1 was scared and followed them.

7.  While in the restaurant, the defendant and the man repeatedly told PW1 that they were triad bosses and forced PW1 to tell them about his family and occupation.

8.  The defendant and the man had left the restaurant in turn. They then told PW1 that the two cigarette boxes had been passed to ‘Brother Sing’, and that PW1 had to pay them $28,000 to settle the matter. PW1 believed them and was scared, but he told them that he had no money.

9.  The defendant and the man then brought PW1 to the banking Centre next to the restaurant where PW1 checked his bank account balance in front of them. They then brought PW1 back to the restaurant and told him that ‘Brother Sing’ had already helped PW1 “settled” the boxes. They said PW1 should show gratitude by transferring $420 to Brother Sing via the ATM.

10.  The three of them returned to the banking centre. PW1 inserted his ATM card and keyed in the Personal Identification Number (“PIN”). The defendant was left alone in the centre while the other man took PW1 to wait outside. The defendant came out after a short while and then left with the man by taxi.

11.  PW1 immediately checked his account and saw that $19,200 had just been withdrawn by the defendant.

12.  The CCTV systems in the restaurant and banking centre captured the relevant events depicted above.

The Second incident

13.  Events of the Second Incident led to the defendant’s prosecution for the offence under charge 5, being the theft of $19,500.

14.  18 days after the First Incident, at around 3am on 24 November 2015, PW2 Mr Lo was walking alone in Wanchai when an unknown Chinese male went up to him and asked if he was a triad member. When Mr Lo told him he was not, the man said that his protector was an ‘Ah Leung’ from “14”, and that Ah Leung’s girlfriend had been beaten by someone, asking Mr Lo if it was he who did it. Again, Mr Lo answered in the negative.

15.  The man told Mr Lo to follow him to see the protector in Mongkok. Mr Lo was scared and followed the man onto a minibus to Mongkok, arriving at around 3:30am.

16.  They got off the minibus near Kansu Street at around 3:30am and walked towards the direction of Tsim Sha Tsui. The defendant met up with them at the entrance of a department store.

17.  At around 4:45am, the defendant asked Mr Lo for his ATM card so that he could make a transfer of $200 to his friend. Since Mr Lo knew that ‘14’ is a triad society and since he was scared that he would be beaten up if he did not comply with the defendant’s request, he went with the defendant and the man to an ATM outside Hang Shing Building.

18.  Mr Lo inserted his ATM card and keyed in the PIN. He then walked away from the ATM and stood with the other man, while the defendant went up to operate the ATM. One minute later, the defendant told Mr Lo that the bankcard had been taken by the ATM and asked to borrow Mr Lo’s phone so that he could call his friend.

19.  When the defendant was appearing to be making a phone call, he suddenly ran away with the phone and boarded a taxi. Mr Lo gave chase but to no avail. He returned to the ATM and found that the other man was also gone. Bank records later showed that the defendant had withdrawn $19,500 from Mr Lo’s bank account.

20.  CCTV outside Hang Shing Building captured the defendant operating the ATM alone after Mr Lo was told to move away.

21.  The defendant was arrested about 4 months later on 30^th March 2016. Both PW1 and PW2 identified the defendant at identification parades later held.

Previous convictions

22.  The defendant was sentenced on 18 occasions, resulting in 28 convictions. The latest conviction was on 8^th May 2017, a Criminal Intimidation case when he was sentenced to 9 months’ imprisonment, a sentence which he had already served.

23.  The defendant has 3 convictions for Claiming to be a member of a triad society, the last one was in 2007. There is also one previous conviction for blackmail, 3 thefts/attempted theft, and 3 other convictions involving dishonesty. He also has a conviction for inviting others to become members of a triad society.

Mitigation

24.  The defendant was born in Hong Kong and is 44 years old. He was educated up to Form 2 level. At the time of arrest, he was working as a part-time transport, construction site and decoration worker.

25.  The defendant is in good health. He is single and without children.

26.  Mr Leung for the defendant made the following plea in mitigation.

27.  At the time of the commission of the present offences, the defendant had not yet been convicted of any of the offences that took place in 2016, as set out in items 17 and 18 of the defendant’s Criminal Record Summary.

28.  The defendant had only been sentenced twice to immediate custodial sentence. All the other offences were dealt with by way of non-custodial sentences in the magistracies.

29.  The defendant has 3 previous convictions for Claiming to be a member of a triad society, but the last one was 10 years ago in 2007. The previous conviction for blackmail was further back in 1996, 21 years ago. They should not be viewed as an aggravating factor. I agree with Mr Leung on this. 

30.  A letter written by the defendant is submitted. The defendant points out in his letter that no violence or weapons were used in this case in either of the incidents.

31.  The defendant had given a non-prejudicial statement to the Police dated 10^th May 2017. The accomplice in both incidents are the same person and the defendant had given information to the Police on that.

32.  The Department of Justice said they will not be taking further action because of insufficient information contained in the defendant’s statement.

33.  The accomplice was the first person who was arrested by the Police but the victims were not able to identify that person and so no charges were laid against that person. It is Mr Leung’s submission that, with the assistance of the defendant’s evidence that person can be charged.

34.  Despite the prosecution’s decision to not proceed to charge the accomplice, the defendant has tried his best to assist the authority and credit should be given.

Sentence

35.  The offence of blackmail, particularly when committed in the context of triads, is a serious offence[1].

36.  The blackmail was premeditated, involved two culprits and within a triad context. The blackmail was well planned and executed. The victim was an innocent target, picked out on the streets of Wanchai randomly by the defendant and his accomplice. The ordeal lasted for some 2 hours for the victim, no doubt causing him great distress.

37.  The blackmail was, however, a one-off incident. That would make it less serious than cases where protection money was demanded to be paid periodically over a long period of time.

38.  I find that an appropriate starting point for the blackmail is that of 3 and a half years’ imprisonment.

39.  As for the claiming to be a member of triad society and the related theft charge (charges 1 and 4), I will adopt a 12-month starting point for each of the two offences.

40.  The defendant’s commission of the offences under charges 1, 3 and 4 should be regarded as arising from one incident. The defendant claimed to be a triad member to instil fear into the victim, providing the groundwork for the subsequent demand for money. The theft of the $19,200 was the end result of the blackmail.

41.  The sentences for these three charges should, therefore, be served concurrently[2].

42.  The defendant had entered a timely guilty plea to all the charges and should be given the full one-third discount, resulting in a sentence of 28 months’ imprisonment for these three counts.

Charge 5: The theft charge arising out of the Second Incident

43.  The theft of the $19,500 and the mobile phone worth $6,500 from Mr Lo in charge 5 took place just 18 days after the defendant’s commission of the earlier offences. The victim was asked to travel with the defendant’s accomplice from Wanchai to Mongkok. There is a heavy triad undertone in the matter. The theft was committed by the defendant with the assistance of another. The ordeal lasted some two hours. The commission of the theft was premeditated. The theft was well planned and executed. The circumstances surrounding the theft are serious.

44.  I find that an appropriate starting point for this theft is that of 15 months’ imprisonment, which is reduced to 10 months’ imprisonment after the one-third discount for his guilty plea.

Totality

45.  The theft in the Second Incident that took place 18 days after the first set of offences was unconnected to the earlier offences. Taking a step back, I find that 9 months of the sentence in charge 5 should be served consecutively to the 28 months sentence for charges 1, 3 and 4, the balance to be served concurrently, resulting in a sentence of 37 months’ imprisonment.

Conviction record not an aggravating factor

46.  As at the time of the commission of the present offences in November 2015, the defendant had 23 convictions from 14 court appearances. His then latest convictions were on 10 May 2013 and 6 October 2014. He was convicted of resisting a Police officer and fined $3,000 in May 2013; and of possession of dangerous drugs, theft and possession of equipment for smoking a dangerous drug on the same day in October 2014, when he was sentenced to a total of 6 months’ imprisonment.

47.  The offences were minor, as suggested by the relatively light sentences, and of a different nature. I do not hold the defendant’s then record against him and do not consider it to be an aggravating factor.

Mitigating factor

48.  The defendant had provided a non-prejudicial statement to the prosecution in May 2017. In the statement, the defendant named the accomplice in the two incidents. This accomplice was actually also arrested by the Police, but the victims had failed to identify this accomplice in the identification parades.

49.  Although the prosecution decided that the defendant’s statement would be insufficient to secure a conviction against the accomplice, no doubt having in mind the victims’ inability to identify him, I find that some credit should be given for the defendant’s willingness and attempt to assist the Police in identifying the accomplice.

50.  For this mitigating factor, I will reduce the defendant’s sentence by 2 months.

51.  The sentence after applying this two month discount is 35 months’ imprisonment.

Whether there should be further discount based on totality

52.  The defendant was last sentenced for an offence of Criminal Intimidation on 8^th May 2017, which is 46 days from the present sentencing exercise, in the District Court case of DCCC 629/2016.

53.  Had the two cases been dealt with together, the court will have to apply the principle of totality accordingly and decide how the sentences in that and the present case should be served.

54.  Since the defendant had already served the sentence in the earlier case, the only way to apply the principle of totality would be for the present sentence to be discounted accordingly, should it be decided that part of the sentences should be served concurrently.

55.  Mr Leung very helpfully, and fairly, informed the court that the defendant’s commission of the earlier offence is entirely unconnected to any of the offences in the present case. They were committed on different days and under different situations.

56.  Having applied my mind to the matter, I find that given the lack of any connection between the two cases, had they been dealt with together, I would have ordered the sentence of the earlier case to be served wholly consecutively to the sentence in the present case.

57.  I also find that the resulting sentence of 44 months’ imprisonment would not have a crushing effect on the defendant and would be a fair and proper sentence for the two cases.

58.  I will, therefore, not grant the defendant any discount in the present case on this basis.

59.  The defendant is, therefore, sentenced to 35 months’ imprisonment for the present case.