HKSAR v. FONG KING CHOI

CACC 319/2018

[2019] HKCA 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 319 OF 2018

(ON APPEAL FROM DCCC NO 90 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

1.  In the early morning of 30 October 2017, the applicant entered a 7-Eleven store, claiming to a female member of staff that he was collecting protection money, “tor tei”, while thumping the cashier table. He did this repeatedly when the female store manager confronted him. He demanded that she hand over to him $100 which she refused to do. He left the store shouting loudly and kicking things on the street outside. Throughout his outburst, customers were present or entering the store. He returned to the store and shouted at the manager, swearing and threatening her, saying that he would come back another time. He then took two cans of beer and knocked them down on the cashier table. As he was about to walk out of the store, the manager insisted that he pay for the beer. He put $20 on a shelf and walked out of the store shouting and swearing at the manager. The actual cost of the two cans of beer was $12.90. He remained outside the store, shouting loudly abusive comments at the manager. At one stage, he claimed he would bring his friends to the store, but the manager and her staff ignored him as he walked off and loitered outside the store.

2.  The duration of this incident was from 6:19am to 6:25am, and at 6:28am he was intercepted and arrested by the police.  The incident was captured on the store’s CCTV camera.

3.  On 9 October 2018, the applicant pleaded guilty to the offence of blackmail in relation to this incident before District Court Judge E Yip (“the judge”).  It was alleged that he made an unwarranted demand of $100 from the manager with menaces. 

4.  In mitigation, it was submitted on the applicant’s behalf that he was 36 years of age and residing with his parents.  It was explained that he had consumed a lot of alcohol prior to the incident because he was upset with his girlfriend.  It was further submitted that there was no actual violence or threat of violence, and that he acted alone without causing any damage to property.  The applicant had a criminal record in relation to offences that did not include blackmail, for which he either received a probation order or a fine, although there was one occasion where he was sentenced to attend a drug addiction treatment centre for possession of a dangerous drug.

5.  Counsel on the applicant’s behalf submitted HKSAR v Wong Yin Chak, CACC 126/2004, 17 December 2004, unreported, and invited the judge to adopt a starting point lower than 3 years’ imprisonment.

6.  The judge noted that the applicant had only visited the store on a single day, and the incident involved a demand for a one-off payment of a small sum of money.  He compared the applicant’s case with a more serious case of blackmail, Wong Yin Chak, where the Court of Appeal in the circumstances of that case regarded an overall starting point of 3 years’ imprisonment as being appropriate in relation to two offences of blackmail.  In that case, the appellant together with another person made continuous demands for protection money, “tor tei”, in the sum of $1,000 from a man and later his wife who operated a newspaper stall.  The first demand was made when the man was operating the stall at 3:05am.  The man challenged them about their demand and as a result they splashed Coca-cola over his stock and ran away.  At 6:15am, they returned when the man’s wife had taken over operation of the stall.  The appellant again demanded protection money from her.  He told her that if she made the payment there would be no trouble and that she should confirm with her neighbours that they were paying “tor tei”.  She told them that she was not the boss and they should return at noontime.  However, they did not return that day but came back two days later at 6:15am.  The woman was alone at the stall at the time.   They asked her if she had spoken to her boss, and if she had confirmed with her neighbours that they had paid “tor tei”.  She replied that she had, and none of them had said that a payment had been made.  The two men left but returned about 10 minutes later, and the appellant opened a can of Coca-cola and spilt the contents of it over the newspapers on display at the stall.  A report was made to the police and the two men was later arrested.

7.  Even though the judge acknowledged that Wong Yin Chak was a more serious case than the one before him, it is arguable that he treated it as providing a sentencing guideline of 3 years’ imprisonment after trial for cases of this type where there were no aggravating features.  In reference to Wong Yin Chak, he said: “The Court of Appeal regarded an overall starting point of 3 years appropriate.  It commented that the usual starting point of 3 years would be called for where no aggravating features such as triad affiliation, violence, or demand for regular payment or of large amount, were present.”[1] However, the Court of Appeal in Wong Yin Chak expressly noted that there were no guidelines laid down for this type of offence.[2]  The Court went on to state that despite the fact that the appellant was accompanied by another person and damaged the stall’s stock, his case fell into the lower category of offenders.  The Court noted that: “He made no threats of physical violence towards either of the stallholders; neither did he claim to have a triad connection.  He made a one-off demand rather than a demand for the regular payment of protection fees.”[3]  It was on this basis that the Court was of the view that a starting point of 3 years’ imprisonment was appropriate for his offence.

8.  It is arguable that the judge was guided by the starting point of 3 years’ imprisonment in Wong Yin Chak and adopted a starting point of 2 years and 6 months’ imprisonment in the present case which he reduced by one third for the applicant’s guilty plea to 20 months’ imprisonment.

9.  By notice dated 31 October 2018, the applicant applies for leave to appeal against his sentence on the basis that it is manifestly excessive in the circumstances, however, he acknowledges that he behaved badly at the 7-Eleven store.  He attributes his behavior to being intoxicated and emotionally distraught because he was upset with his girlfriend.  He noted that at the time he had paid for the two cans of beer and that he had not caused injury to anyone or damage to any property. 

10.  From the admitted facts and the CCTV footage, the applicant was abusive and threatening to the staff of the store.  He intimated that his friends would come to the store to back up his demand for “tor tei”.  On the other hand, it appears that he was under the influence of alcohol, and behaving erratically.  Notwithstanding the belligerent manner of the applicant, the staff of the store were able to deal with him, even to the point of making him pay for the two cans of beer before he left the store.  He was behaving like this in open view of other persons who were either inside or outside the store.

11.  I am of the view that in light of the circumstances of this case, it is reasonably arguable that the starting point was manifestly excessive and wrong in principle, and I therefore grant the applicant leave to appeal against his sentence.

12.  I also grant the applicant legal aid in the conduct of his appeal pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.

[1] Appeal Bundle, page 9M-O.

[2] At paragraph 11.

[3] At paragraph 13.