HKSAR v. TANG CHEUK WING

DCCC 1168/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1168 OF 2012

----------------------------

----------------------------

REASONS FOR SENTENCE

----------------------------

1.  This afternoon the defendant appeared before me and pleaded guilty to a charge of “Blackmail”, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210 and also a remaining charge of “Failing to surrender to custody without reasonable cause”, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

2.  The Blackmail charge dated back in 30 November 2000 which is some 13 years ago, the reason being that after the defendant was arrested, he subsequently absconded in 2003 and jumped bail and he was only intercepted by the police on 5 November 2012 when he tried to cross the Lowu Border Control Point.

The Facts

3.  The facts surrounding the blackmail charge is simple and straightforward.  On the day in question, the defendant and a man surnamed Wong entered a cooked food stall which was located at Wong Chuk Hang, Aberdeen, whereupon Wong identified himself as a “tor di” and told the proprietor of the cooked food stall that he and his big brother (the defendant) would protect the establishment. 

4.  Wong told one of the proprietors that they had been collecting $5,000 “tor di” fee from each stall here.  Finally, the defendant and Wong agreed that they would settle for $3,000 per month and would collect the money on the first day of each month.  The defendant and Wong further intimated to the proprietor that they would later send a “lan chai”, i.e. “a follower” of them to collect the money on the next day.

5.  One of the proprietors of the cooked food stall then reported the matter to the police.  The police decided to lay ambush in the vicinity of the cooked food stall and asked the proprietors there to prepare cash in the sum of 3,000 and to record the serial numbers of the banknotes.

6.  Subsequently, in the afternoon of 1 December 2000, a young person Poon approached the stall and represented to the proprietors there that he was there to collect the money for the defendant and Wong who had come to the stall the day before.  Poon was subsequently arrested by the police after he received $3,000 from the proprietors.  Wong was also arrested later by the police on the same day. 

7.  Under caution, both Poon and Wong admitted the offence and confessed their being a member of Fuk Yee Hing triad society.  Wong further said that both of them were indeed instructed by the defendant in the blackmail incident.  In fact, the defendant had left the territory two days after the arrest of Poon and Wong and the police was unable to locate his whereabouts. 

8.  It was only about 2½ years later that the police was able to stop and arrest the defendant at Lok Ma Chau Border Control Point when the defendant returned to Hong Kong. 

9.  On 30 October 2003 the defendant was charged with “Blackmail” but as said earlier, he then jumped court bail and failed to appear at the Western Magistracy on 4 November 2003 as appointed (Case No.WSCC 1559/2003).  A warrant of arrest was issued by the court.

Criminal Records and the Background of the Defendant

10.  The defendant is now aged 45.  When he committed the offence, he was aged 33.  He had only one previous criminal record of “Theft from vehicle” in 1981 whereupon he was sentenced to serve one year Probation Order.  For the purpose of the present sentence, I shall therefore treat him as a person of a clear record as his conviction was clearly spent already.

11.  The defendant had attained only Form 2 education level in Hong Kong.  He had worked as an electrical technician trainee after school and he was then employed as a delivery man in the Western Wholesale Food Market between 1981 to 1988. 

12.  During the time when this offence took place and after he had absconded to the mainland, he was first engaged in vehicle parts trading in the mainland.  In the last two or three years, he had been working as a waiter in a bar and also in a restaurant. 

13.  While the defendant was in the mainland he was cohabitating with a girlfriend and they have a newborn baby girl who is now only 5 months’ old. 

14.  The defendant has two elder brothers but they have both married and live separately with the parents.  The parents are both at their 70s and 60s and the father reportedly suffered from some elderly men illness and the mother was also suffering from a broken arm earlier this year and both parents are relying on the defendant for support. 

Mitigations

15.  In mitigation, Mr Chow, the solicitor appearing for the defendant, had submitted to court three mitigation letters written separately by the defendant himself, the common law wife of the defendant as well as his parents. 

16.  I am not minded to go into the details of these letters, suffice it to say that the defendant has expressed remorse and the girlfriend of the defendant of course asks for lenient treatment to the defendant so that she and the baby girl can be taken care of by the defendant.  It was the wish and it remains the wishes of the parents of the defendant that the defendant would be reunited with the family and take care of them after he had served his time. 

17.  As far as the mitigation is concerned, Mr Chow reminded the court the fact that the defendant had suffered a lot of hardships during the time when he had absconded.  Because the defendant did not have a proper status to remain in the mainland, I was told he had to work secretly and therefore earning very low income.  Owing to the welfare consideration of the girlfriend and the newborn baby, the defendant decided to come back to Hong Kong and to face the reality so that he can resume his status as a Hong Kong citizen and support the family.

18.  Mr Chow urged the court to take into account the fact that the defendant voluntarily surrendered himself.  Insofar as the blackmail charge is concerned, while acknowledging the fact that it was a very serious charge and also with triad background, Mr Chow can only urge the court to be as lenient as possible.  In so doing, Mr Chow had reminded the court that Wong, the co-defendant which is named in Charge 1, had pleaded guilty to “Blackmail” in the District Court in 2001 where he received only a sentence of 26 months’ imprisonment. 

Sentencing Considerations

19.  In passing the sentence, I take into account the fact that the defendant had pleaded guilty to both charges and the fact that the defendant had in law a clear record and everything that had been urged on his behalf by Mr Chow.

20.  Having said that, in Charge 1, we are dealing with “Blackmail” which is a serious offence, especially in this case with triad connotation.

21.  In The Queen v Lo Wai Keung and Others CACC 159/1996, the Court of Appeal had said that 4 years would be a wholly appropriate sentence to impose on offenders for this type of offence even without previous conviction in circumstances such as the present case.  The Court of Appeal described that these were vicious offences which should be relentlessly pursued.  Such offenders could expect sentences which reflected not only the abhorrence of the society but which also carried a deterrent element. 

22.  In another case which has been supplied by the prosecution for my consideration, HKSAR v Cheung Wan Ing CACC118/2000, the Court of Appeal also reaffirmed that a starting point of 4 years for the present offence was not to be said to be excessive.  Affirming the sentence, the Court of Appeal said that it was not a case of a single man holding himself out to be a local bully boy in order to extort a few hundred dollars from shopkeepers and significant sums were demanded on a regular basis and there was a threat of violence.

23.  In this case, although there was no explicit threat of violence, the Court of Appeal had commented that when there was a triad element involved and that there were triad members spoke of business, this kind of triad threat would contain an implied threat of violence.

24.  Although the co-defendant Wong who had pleaded guilty received only a sentence of 26 months and hence a notional starting point of 39 months, I consider that the role assumed by the defendant, who was the big brother of both Wong and Poon, should be more serious and therefore a starting point of 4 years is more appropriate.

25.  I have of course sympathy with the family circumstances of the defendant whose father and mother are both in their 70s and 60s, a baby girl who is 5 months old and also the girlfriend, all of whom were looking for the defendant for support.  However, the Court of Appeal had repeatedly said in the past in numerous authorities that family circumstances is not something which the court can consider especially in cases of serious offences.

26.  Moreover, what the defendant has said that he had suffered a lot during the time when he was on the run is not something which he can reasonably expect the court to sympathize and rely in mitigation of the sentence.  Frankly speaking, he only had himself to blame if he did suffer as a fugitive. 

27.  Finally, the defendant through his lawyer, Mr Chow, had asked the court to consider the fact that he had voluntarily surrendered himself.  In the case of The Queen v Fung Nai Mo [1986] HKC 305 and 306, the Court of Appeal had already said that:-

“If the accused who has no realistic option but to turn himself he may not be able to rely on surrender as mitigation to any great extent.”

28.  As Bokhary J (as he then was) said as early as in 1997 in another case, The Queen v Lam Kuen [1997] 4 HKC 429:-

“The applicant absconded which is to his discredit. He later surrendered which is to his credit. The two things cancelled each other out.”

29.  Finally, one must not lose sight of the fact that the defendant had absconded nearly for 10 years which is of course a very lengthy period indeed.

30.  For the second offence, the maximum sentence is 12 months’ imprisonment.  As I have said, the defendant has absconded for a very lengthy period.  However, I will not use the maximum as the starting point and I decided to use 9 months instead.

31.  In respect of Charge 1, I shall adopt 4 years or 48 months as the starting point.  Because of the plea, the defendant is entitled to one-third discount and therefore the sentence is reduced to 32 months’ imprisonment.  For Charge 2, I would adopt 9 months as the starting point.  Because of the plea, the sentence is thereby reduced to 6 months. 

32.  Charge 2 is a separate and distinct offence to Charge 1 which deserves a wholly separate sentence.  I order that the sentence of the 6 months is wholly consecutive to the sentence of the 32 months, making a total of the two sentences one of 38 months’ imprisonment.