HKSAR v. LAU MING TSUN

DCCC 43/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 43 OF 2015

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REASONS FOR SENTENCE

1.The defendant faces 5 charges of "Blackmail" (Charges 1 to 5). He pleaded guilty to Charges 4 and 5. Upon application by the prosecution, I ordered Charges 1 to 3 be left in the court file; not to be proceeded against him without leave of court.

Summary of Facts

2. Madam YEUNG (PW1) is one of the owners of a frozen meat company situated at Ground Floor, No.1063 Canton Road, Mongkok ("the Shop").

Charge 4

3. On 13 November 2014, the defendant went to the Shop and asked for $8,000.  PW1 refused to pay.  He then took out a fruit knife from his recycle bag, holding it in front of his chest and pointing it at the ceiling, and said "I have a knife.  If you do not give me money, I will stab your husband to death."

4. PW1 was scared and did not respond.  The defendant turned around, put the knife back in his recycle bag and left.

Charge 5

5. About 3:30 pm on 16 November, the defendant went to the Shop again.  He rudely asked PW1 for $8,000 but she refused.  The defendant left without saying anything.

6. About 5:30 pm on the same day, the defendant returned to the Shop and rudely asked PW1 for $8,000.  He said "Now you don't give me money?"  PW1 lied to the defendant that she had already called the Police.  The defendant took out a fruit knife, holding it in front of his chest and pointing it at the ceiling, and said "I have a knife".  He then turned around, put the knife back in his recycle bag and left.

7. About 6:45 pm, the defendant called the Shop and PW1 answered.  PW1 saw him standing outside the Shop.  They could see each other as they spoke on the phone.  The defendant said "You have called the Police.  You will be in trouble after you called the Police."

Arrest and Admissions

8. On 18 November, the defendant went to the Shop and asked for $500.  He told PW1 that this would be the last time and he would surrender to the Police afterwards.  PW1 instructed one of her employees to give him $500.  With the defendant's consent, PW1 photographed him for record.

9. The defendant was arrested by the Police on 20 November.  Under caution, he said he blackmailed PW1 because he had no money.

10. In his video-recorded interview, the defendant admitted having committed the offences in Charges 4 and 5.  Regarding the fruit knife, he claimed that he picked it up on the street.  He also claimed that he did not take out the knife on 13 November; he only opened his recycle bag to let PW1 see the knife inside.  After the incident on 16 November, he discarded the knife in Mongkok.

Mitigation & Sentence

11. The defendant is 44.  He is married but resides alone.  His wife is in the mainland and he has lost contact with her for over 10 years.  The defendant has 29 conviction records, which include 1 offence of "Blackmail" (dated 1993) and numerous drug-related offences (both "possession" and "trafficking").  His most recent conviction was "Theft", for which he was sentenced to 4 months' imprisonment in November 2014.  His conviction history is typical of a long-term drug addict.

12. In mitigation, defence counsel Mr. CHENG submitted that the defendant was in dire dead end of his financial state.  He had asked PW1 for money before and was given $100 to $200 a few times.  Regarding Charge 4, Mr. CHENG submitted that the defendant was wanted for a "Theft" offence and was absconding from court bail.  He needed more money to stay away from being caught.  He knew that he could not hide indefinitely.  He asked for $8,000 but was unsuccessful.

13. In view of the rather unusual modus operandi with which the defendant made his demands and how PW1 reacted to such demands, I called for 2 Psychiatric Reports to assist me in sentencing.  The Reports revealed that the defendant suffers from opioid dependence syndrome, but has no psychiatric illness.  He has also disclosed to the psychiatrists the reasons why he demanded money from PW1.  I need not repeat those reasons, suffice it to say that if the defendant's account of the events is true, PW1 does not come entirely with clean hands.

14. Initially, Mr. CHENG accepted that the nature of the present offences are akin to those which involve asking for "tor dei" (protection) money, except without any triad element.  But it now transpires that the offences may well be related to debt collection by illegal means, which Mr. CHENG accepts today.

15. In any event, even if the defendant was indeed collecting his "debts" owed by PW1, irrespective of the legitimacy of such "debts", the law does not allow any debt collection by illegal means (such as splashing red paint at the door of someone's home or making threatening phone calls, needless to say threatening to injure someone with a knife).  The defendant might have had grievances against PW1, what he did was plainly wrong and he must be punished accordingly.  Furthermore, he used a knife to increase the degree of threat in his demands, which is no doubt an aggravating factor. 

16. Lugar-Mawson J in HKSAR v AU Wing Yat HCMA 891/2004 held "However it is committed, blackmail is a serious offence.  The circumstances of its commission, however, can vary widely and the sentence to be imposed upon the offender depends very much on the particular facts of the case." [1]

17. In the present case, I adopt a starting point of 2 years' imprisonment for each charge.  With the guilty plea, the sentence is reduced to 16 months.  Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 16 months' imprisonment each for Charges 4 and 5.

18. Despite PW1's refusal to pay, the defendant made repeated demands for money against her within a time span of a few days.  I consider this an aggravating factor too.  Bearing in mind the totality principle, I order 4 months in Charge 5 to run consecutive to Charge 4.  Thus, arriving at a total prison term of 20 months.