HKSAR v. LUO YOUHAO

DCCC1065/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1065 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to three charges. The 1st charge is conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap.210 and sections 159A and C of the Crimes Ordinance, Cap.200. That offence was committed on June 2010 in Hong Kong, together with X.

2.  The second offence, but the 3rd charge on the indictment, is a charge of blackmail, contrary to section 23(1)and (3) of the Theft Ordinance.  That offence was committed  on 19 July 2010 when you blackmailed X with menaces and had made an unwarranted demand of $26,400 of her.

3.  The third offence to which you pleaded guilty, the 4th charge on the indictment, is a charge of perverting the course of public justice, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance. That offence was committed on 28 July 2010 in Hong Kong with intent to pervert the course of justice, you sent a letter to X urging her to withdraw her complaint that she had made to the police.

Charge 1

4.  X was your lover in an extra-marital affair as you and X were both married. 

5.  Madam X worked as a shop assistant in a personal care chain store in Hong Kong.  She came to know you as a usual customer of the shop.  You are from Mainland China and are a two-way permit holder.

6.  Your affair with Madam X developed in May 2010. X had subscribed a mobile phone number for you, as well as rented premises for you by disguising herself as your wife and entered into a tenancy agreement on your behalf with the landlord.  That was your rendezvous or love-nest.

7.  About a month after you developed your relationship, in June 2010 you conspired with Madam X to steal goods from the shop that she worked at so that you could resell the goods in Mainland China for a profit.  At the very beginning she refused to do so; however, she later agreed with you and carried out your proposals.

8.  Between June and July 2010, when you went to make purchases at the shop, she only counted some of the items you purchased and some of the items were therefore not counted by not rung up on the till.  Those goods which were not rung up were the goods that you went on to make the profit from.

9.  On four occasions she failed to ring up certain items that you purchased, and the total amount, therefore, of the stolen items was $3,467.50.

10.  On 14 July 2010, Madam X indicated to you that she did not want to steal for you anymore.

Charge 3 - the blackmail charge

11.  Five days later, on 19 July, you waited for Madam X, outside the shop when she came off duty.  You demanded her to continue to assist you in stealing goods from the shop or else she would have to pay you compensation of $26,400, $20,000 of which was for psychiatric damages and $6,400 for rent.  You told her that if she failed to pay the money on or before 23 July, some four days later, you would cause a nuisance to her family and even stab her to death.

12.  On the very following day, Madam X surrendered herself to the police and asked for assistance.

13.  On 22 July, you were arrested.  At the time of arrest, the tenancy agreement of the premises signed by Madam X and Madam X’s duty schedule were seized from your wallet.

14.  Under caution and in the subsequent records of interview, you denied the offences; and you claimed you were just an ordinary friend of Madam X, and not her lover.  It was Madam X who framed you up because you had an argument regarding the renting of the premises.

15.  As to the 4th charge of intending to pervert the course of justice, after your arrest you were detained in the Lai Chi Kok Reception Centre.

16.  On 9 August 2010, Madam X went to the Sheung Shui Police Station with the letter.  The letter was dated 28 July 2010, and was sent to the address of the shop where she worked and addressed to Madam X.  The letter was written and sent by you when you were in the Lai Chi Kok Reception Centre.  In the letter you expressed that you still loved Madam X and asked her to forgive you.  You also asked Madam X to assist you and to forget the incidents that she reported to the police for which you would compensate her any loss that she might have suffered.

17.  Ms Monica Chow, your counsel, has mitigated very thoroughly and eloquently on your behalf.  She has urged the court to pass as lenient a sentence as is possible and appropriate in regard to the mitigation that she has advanced.

18.  You are aged 35, and, I am told, have a clear record both in China and in Hong Kong.

19.  You have a son, aged 5, and a mother in her early 70s.  You are the sole breadwinner of your family.

20.  In early 2010 your mother’s health deteriorated and, in order to provide for her expenses, you commenced working as a parallel importer, purchasing milk powder in Hong Kong and reselling it in China for a profit.  Your mother, in April 2010, suffered a heart attack and was hospitalised, resulting in a $70,000 bill.  As there were insufficient funds, you had to borrow from relatives and friends.  In June, when she was discharged, you had to repay your friends.  As a result of the pressure to at least repay some of the loans, you became desperate and therefore asked Madam X to commit the stealing offence, and eventually committed the blackmail offence.

21.  In a nutshell, after being in custody, you were overcome and concerned about the well-being of your mother and son, and under those circumstances, wrote the letter to Madam X thus was intending to pervert the course of justice.

22.  Ms Chow has asked me to look at these offences as simple and unsophisticated, and arose as a result of the pressure caused on you by the repayment of the debt triggered by the medical bill. 

23.  As you, I am sure, have been well-informed and advised by Ms Chow, the offences concerned, particularly the blackmail offence, is a very serious offence indeed.  Deterrence is warranted.

24.  You had developed a relationship with Madam X, and she had done much for you in the way of renting the love-nest, and eventually stealing for you.  That theft charge, if it had been her on her own, is, of course, a very serious one of breach of trust as she was stealing from her employers.

25.  In respect of the blackmail charge, you knew that she was married and any threat to cause nuisance to her family would have caused immense concern and, perhaps the breakdown of her family.  You threat to stab her to death clearly caused her much grief and concern as the very following day she surrendered herself to the police and asked for assistance.  Those threats were not minor threats.  Those threats to stab her to death or to kill someone is probably one of the worst threats one can make.

26.  For the offence of intending to pervert the course of justice, you had changed your tone completely and tried to gain her assistance by telling her you still loved her and asked her to forgive you, if she would withdraw the complaint.  No doubt this would have caused some emotional reaction to her, but nevertheless, she still continued with her complaint.

27.  I accept Ms Chow’s mitigation that there was no triad element in this blackmail.  That, of course, would be a matter which would put this type of blackmail in a very much more serious light.

28.  In considering all the circumstances of this case, the strongest mitigating factor on your behalf is, of course, your plea of guilty and the fact that this was indicated to the prosecution so that Madam X could be released of her attendance to court and spared from giving evidence.

29.  Defendant, for the 1st charge, I take a starting point of 12 months’ imprisonment had I convicted you after trial, and giving you full credit for your plea, that term shall be reduced to 8 months’ imprisonment.

30.  On Charge 3, I take a starting point of 3 years’ imprisonment and give you full credit for your plea, and reduce that to 2 years’ imprisonment.

31.  On Charge 4, I take a starting point of 9 months’ imprisonment, and reduce that term to one of 6 months’ imprisonment.

32.  I have taken into account the principle of totality.  The offences are distinct and separate in nature.  They were committed on different dates.  Although they arose because of Charge 1, the victim not agreeing to continue to steal, I do consider that some of the sentence should be served partly consecutively.

33.  I consider a total term of 2 years 3 months to be appropriate. 

34.  I order 2 months of Charge 1, and 1 month of Charge 4, to run consecutive to that of Charge 3, making a total term of 2 years 3 months’ imprisonment.