R. v. LEE KENG KWONG

HEADNOTE

Blackmail threats of a triad nature - sentence of two years and nine months cannot be criticized.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced four counts: one of claiming to be a member of a triad society, two of blackmail and one of theft. The particulars of the counts indicated that on 31st July 1991, at the Chow Kee Herbal Tea Shop, Ground Floor, 1B Chun Fat Street, Kowloon City, Kowloon, he claimed to be a member of a triad society, namely the 14K Triad Society, that at the same time and place.he made an unwarranted demand for money from Mr. CHAU Wai-chi, who was the proprietor of the tea shop, and that at the time and place he obtained $200, the proceeds o?the alleged theft. The second blackmail charge was that at a date unknown in September 1991 at the same tea shop he made a further unwarranted demand for money from Mr. Chau with menaces.

3. The facts are distressingly familiar. On 31st July 1991 while the victim Mr. Chau was preparing to open his new tea shop he was approached by the applicant who said that he was "Toi Dais 14 of 13 Streets" and demanded a packet of Li Sze on the basis that all newly opened shops had to pay. There was no dispute that "14" referred to the 14K Triad Society. The victim, afraid of the consequence of refusing, handed over $200. The applicant then indicated that no one else would demand money. On a day in mid-September, the applicant returned again saying that he was the Toi Dais who managed the 13 Streets and again demanded money for the MidAutumn Festival. The victim refused to pay and reported the matter to the police. On 8th October, the applicant was stopped by police officers and arrested and he admitted asking for lucky money from the victim.

4. The applicant pleaded guilty to three of the charges, it appears that the Crown did not pursue the theft charge and he was sentenced to three months on the charge of claiming to be a member of a triad society and two years and nine months on each of the blackmail charges.

5. The trial judge said when sentencing:

    "These offences of Blackmail involving protection money demands are prevalent in Hong Kong. Reaching epidemic proportions. Only a relatively small number get to Court. Curse on the society of Hong Kong. Public and victims must be protected when these cases are detected and conviction ensues.

    Defendant has a shocking record and is aged 36 years. 17 previous convictions 3 for . blackmail. I can give a considerable discount for plea.

    Starting point 3 years 6 months. Discount of 9 months.

    Offences involved same victim consider totality count one part and parcel of the offence. All the offences may be concurrent."

6. The grounds of appeal argued before us are that the trial judge failed to take into account a number of factors to which he should have given weight. It was submitted that there were no threats of violence, there was no evidence of actual violence, that the applicant had only made these demands on two occasions, that there was no evidence to establish that the applicant was part of an organized triad protection racket, that the total amount involved was only $200, and, finally, that the victim was not, at least on the second occasion, intimidated as he had reported the matter to the police.

7. As to the suggestion that there was no threats of violence, we cannot help but say that any triad threat contains an implied threat of violence that triad retribution will be wreaked upon the victim if he does not comply. Victims undoubtedly understand and are meant to understand that such a threat is implicit in the words that were spoken and because of this are prepared to make payment as did the victim in the present case.

8. As to the second matter it is true that there was no actual violence. It was not necessary.

9. The third matter raised was that it occurred on only two occasions. This is true and it is equally true that there were only two charges. There was no opportunity for any further misconduct as the matter was reported to the police and the applicant was apprehended.

10. It was fourthly suggested that there was no evidence to establish that the applicant was part of any organized triad group. That may be so. Whether or not, however, he was in fact part of any such group he was certainly relying upon the implicit threat that he was a member of such a group and that he had others standing behind him who would enforce his demands if they were not met. This is the light in which such threats are seen by the person being threatened.

11. The fifth matter urged is that only $200 was involved. That is also true but the amount involved in cases of this kind is often small. This is part of the modus operandi. Small demands are likely to be met and to be met upon a repeated basis.

12. It was next alleged that the victim was not intimidated. This is clearly only partly true if it is true at all. The victim was intimidated when first approached as he handed over the $200. There is nothing to indicate how frightened he may have been on the second occasion, it is known why that he had sufficient courage to report the matter to the police.

13. The appeal is in our view without merit. The observations of the trial judge which were not challenged were entirely appropriate and his assessment of sentence cannot be properly criticized.

14. The application for leave to appeal against sentence is therefore dismissed.