HKSAR v. YAM KOON FAI

DCCC 328/1994

[2024] HKDC 1781

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 328 OF 1994

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REASONS FOR SENTENCE

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1.  The 2^nd defendant (“D2”)  pleads guilty to six offences, namely two offences of robbery (charge 2 and charge 4), two offences of blackmail (charge 3 and charge 8), one charge of claiming to be a member of a triad society (charge 6)  and one charge of criminal intimidation (charge 7). Charge 1 has been withdrawn by the Prosecution.

Facts

2.  PW1 and PW2 were the directors and shareholders of Surewell International Limited (“Surewell”).  In about June 1993, Surewell entered into a contract of sale of goods with Wah Hing Trading Company (“Wah Hing”), pursuant to which Wah Hing paid a total deposit of HK$1.6 million to Surewell (“the deposit”).  Wah Hing failed to complete the contract and Surewell forfeited the deposit.  The proprietor of Wah Hing, Yip Kiu-leung (“Yip”), repeatedly demanded PW1 and PW2 to return the deposit.

Charge 2

3.  On 6 December 1993, PW1 and PW2 attended a meeting with Yip at the office of Starco Enterprise Limited (“Starco”).  On arrival, PW1 and PW2 were introduced by Yip to a male known as “Cheung Chai”.  Yip and Cheung Chai in turn demanded PW1 and PW2 to return the deposit.  PW1 and PW2 refused.  Cheung Chai then made a number of phone calls.  Shortly after, some 10 to 12 unknown males including D2 arrived.  Cheung Chai then threatened PW1 and PW2.  PW1 and PW2 were frightened and agreed to repay part of the deposit.  PW2 was then escorted back to Surewell’s office by two of the unknown males to collect the company cheque book and chop. 

4.  Meanwhile PW1 was detained in Starco’s office.  At that time, D2 made some remarks to PW1 and punched him once on his chest. 

5.  After PW2 returned, PW1 and PW2 issued the two cheques amounting to HK$600,000 in total, as particularized in Charge 2, and gave them to Cheung Chai.  The two cheques belonged to Surewell.  PW1 and PW2 also wrote out and gave to Cheung Chai an authorization letter for him to collect from Surewell’s supplier that part of the deposit which had been paid to the supplier.  Cheung Chai then took down the personal details of PW1 and PW2 before PW1 and PW2 were allowed to leave.

6.  After the incident at Starco’s office, PW1 and PW2 contacted PW3 who was a friend of Yip.  PW1 and PW2 requested PW3 to help to resolve the matter.  PW3 then contacted Yip and Cheung Chai.

Charge 3

7.  In about mid-December 1993, PW1, PW2 and PW3 attended Koon Fuk Restaurant to meet Yip and Cheung Chai.  On arrival, they saw Yip, Cheung Chai, D2 together with five to six unknown males.  PW3 then walked to one side with Yip and Cheung Chai and had a discussion.  Cheung Chai told PW3 that he demanded HK$250,000 as tea money.  At that time, PW1 and PW2 remained with D2 and the unknown males and were demanded to put all valuables on the table.  As PW1 and PW2 were frightened, they did as demanded.  PW3 then returned with Cheung Chai and told PW1 and PW2 of Cheung Chai’s demand.  As PW1 and PW2 were frightened, they agreed to Cheung Chai’s demand.  Cheung Chai then took away PW1 to PW2’s cash (HK$15,000)  which was on the table.  Before PW1 and PW2 were allowed to leave, D2 warned PW1 and PW2 to honour the payment. 

8.  PW1 and PW2 later arranged with PW3 and handed over to Cheung Chai four cheques amounting to HK$250,000.

9.  After the incident at Koon Fuk Restaurant, PW1 and PW2 contacted Yip and held discussions with him to settle the deposit matter.  On 11 January 1994, a formal agreement was signed between the parties to settle the dispute.  Then PW1 and PW2 stopped payments for three of the cheques which had been handed over to Cheung Chai (“the three cheques”).

Charges 4, 6 and 7

10.  On 18 February 1994, when PW2 was alone in Surewell’s office, Wu Shiu-cheung, Peter (D1)  and D2 appeared.  D2 showed PW2 the three cheques, which payment had been stopped, and asked PW2 to settle the payment thereof. D1 then kicked PW2’s hand, punched PW2’s head, pushed PW2 over and kicked PW2’s body.  D2 then claimed that he belonged to “Wo On Lok” and made some remarks to PW2.  D1 then searched PW2’s wallet, took out HK$2,000 cash and took down PW2’s personal details.  D2 then punched PW2 on his chest and took PW2’s “Rolex” watch and platinum ring.  D1 then threatened PW2 and took PW2’s platinum necklace.  The total value of the robbed properties amount to approximately HK$56,000.  D2 then demanded PW2 to have the money ready.  D2 then threatened if PW2 reported the matter to the police D2 would burn PW2’s home after serving his sentence in jail.  During the incident, D1 also claimed that he belonged to “Wo On Lok”.  D1 and D2 then left and PW2 reported the matter to the police.

Charge 8

11.  From 21 to 22 February 1994, PW1 and PW2 received a number of telephone calls from a male person demanding further payment of HK$100,000.  During those telephone calls, the male made certain threats to PW1 and PW2.  PW2 identified that the voice of the male belonged to D2.  One such telephone call was taped by PW2.

12.  On 22 February 1994, another male telephoned PW2 to arrange for the pickup of the money demanded.  PW2 identified that the voice of this second male belonged to D1.  PW2 then arranged with the police for the arrest.  PW2 then went to look for D1 at the arranged pickup place.

The arrest

13.  D1 was later stopped by PW4 and upon search a photocopy of the three cheques was found from D1.  PW2 arrived at the scene of arrest and identified D1 to be one of the two males who had robbed him on 18 February 1994.  D1 subsequently made three statements under caution relating to this matter. Following enquiries, D2 was later arrested by PW5.  D2 subsequently made two statements under caution relating to this matter.

Identification parade

14.  At the formal identification parade held by the police on 7 March 1994, PW1 and PW2 positively identified D2. 

15.  It is the Prosecution case that in respect of charges 2 and 3 D2 acted in joint enterprise with Cheung Chai.

Criminal record

16.  D2 has no criminal record.

Background and mitigation

17.  D2 is single, turning 55 in a few days’ time.  He was born in Hong Kong and received education up to secondary level. 

18.  In 1993, he was arrested, charged with the present offence and granted bail.  However, he jumped bail in 1994 and did not surface again until October 2023, when owing to poor health he surrendered to the police.  He has since that time been held in custody during which time he has attended hospitals regularly to receive treatments for ongoing medical problems relating to a stroke which he suffered in early 2022. 

19.  D2 now requires the assistance of a wheelchair because of his limited mobility.  His poor health makes his life in prison worse than it is for the able and healthy prisoners.

20.  At the time of the offending, D2 was only 24 years of age, he was unemployed.  He had great difficulties in securing a permanent job and was offered an opportunity with others to make some money quickly so that he could repay his debts and hence his involvement in the relevant offences.  He has ruined his life trying to hide away from the police and has compromised his lifestyle, marital prospects, social relationships and employment opportunities.  Although D2 has brought his own difficulties very much upon his own head, he invites the court not to disregard his difficult past and medically challenged present and implores a sentence as leniently as possible.

21.  Mr McGuinniety produces a sentencing authority[1] in respect of the offence of robbery and a medical report dated 3 October 2024 of D2. 

22.  D2’s family members are in court to support him.

Sentence

23.  I have carefully considered all the written and oral submissions made by Mr McGuinniety in mitigation on behalf of D2. 

24.  In Mo Kwong Sang, the Court of Appeal held that, after trial, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon, which he displayed to his victim, should normally be 5 years.  If the robbery involved an invasion of private premises, which included domestic and business premises and the common parts of premises such as lifts and staircases, a sentence of 6 years would be appropriate.  These guidelines should be adjusted to reflect the aggravating factors and in accordance with the particular facts of the case and/or the accused’s age, record and other personal circumstances.  Little account could be given to an offender’s previous clear record. 

25.  The Defence accepts that D2 is going to be sentenced to a lengthy custodial sentence and the fact that threats were made during the course of the offending and that there was the presence of more than one person during the offending timeframe would be regarded as aggravating factors. 

26.  As revealed in the facts relating to charge 2, PW1 and PW2 were frightened because of the threats made to them by Cheung Chai.  Shortly after a number of phone calls made by Cheung Chai, D2 together with other males attended the scene.  D2 used violence on PW1 while PW1 was being detained thereat.  The total sum of money of the cheques involved was substantial. 

27.  Regarding charge 4, the offence took place in Surewell’s business premises,  while PW2 was alone inside. both D1 and D2 assaulted and threatened PW2.  A relatively high value of robbed properties was involved. 

28.  No weapon was used in both offences. 

29.  Both robberies were, in my view, premeditated with planning.  For each offence, I am satisfied that a 5-year starting point is appropriate.

30.  As for the two offences of blackmail, charges 3 and 8, each was premeditated with planning and involved a demand for a relatively large sum of money.  I am satisfied that a 3-year starting point is appropriate for each offence.

31.  As to charge 6 and charge 7, I am satisfied that a 9-month starting point is appropriate for each offence.

32.  D2 failed to appear in court for trial on 6 April 1995.  The Prosecution accepts that the new sentencing guidelines in Ngo Van Nam[2] do not apply.  In any event, the Court of Appeal made it clear that the said new sentencing guidelines were subject to the overriding discretion of the sentencing judge. 

33.  Both the Prosecution and the Defence have had the benefit of reading the Reasons for Sentence relating to D1.  D1 indicated and entered his guilty plea on the first day of trial on 6 April 1995.  Guilty plea discounts ranging from 25 per cent to one-third were given to D1 in respect of the charges against him.

34.  D2’s guilty plea, albeit late, not only saves considerable time and expenses but also spares the victims’ stress and inconvenience of testifying and reliving terrifying memories.  I am prepared to deal with D2 leniently and give him a full one-third guilty plea discount on each charge and the Prosecution does not object to this.  The sentence in respect of each charge is reduced accordingly as follows:

- Charge 2, 40 months;

- Charge 3, 24 months;

- Charge 4, 40 months;

- Charge 6, 6 months;

- Charge 7, 6 months;

- Charge 8, 24 months

35.  The Prosecution accepts that D2 voluntarily surrendered to the police. I therefore reduce the sentence for each charge by 3 months. So:

- Charge 2, 37 months

- Charge 3, 21 months

- Charge 4, 37 months

- Charge 6, 3 months

- Charge 7, 3 months

- Charge 8, 21 months

36.  A prisoner’s medical condition is not a matter to which the court will have regard for mitigation of a proper sentence save in the rarest cases, R v Ho Mei Lin[3]. I have read the medical report of D2 and I have no doubt that D2’s health condition will be adequately dealt with through the medical facilities operated by the Correctional Services Department. 

37.  I do not see any other mitigating factors which justify any further reduction.

38.  As each additional offence leads to additional culpability of the defendant, the sentences could in principle be made consecutive.  However, taking into account all the circumstances of the six offences and the totality principle, I consider that a global starting point for the six offences should be 76½ months which is reduced to 51 months for his guilty pleas and is further reduced by 3 months for his voluntary surrender to 48 months. 

39.  To achieve the resulting sentence of 48 months, I order:

•  the sentences on charge 4, charge 6, charge 7 and 8, to run concurrently with each other, making a combined sentence of 37 months;

•  the sentences on charge 2 and charge 3 to run concurrently with each other, making a combined sentence of 37 months. 11 months out of this combined sentence to run consecutively to the combined sentence on charge 4, charge 6 to 8 and the remainder is to run concurrently, thus making a total of 48 months.

40.  D2 has to serve a total term of 48 months’ imprisonment.