HKSAR v. WONG WAI PING AND OTHERS

DCCC 1014/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1014 OF 2014

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Reasons for Sentence

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1.  1st, 2nd and 4th defendants have plead guilty to one count of blackmail, contrary to Section 23(1) and (3) of the Theft Ordinance, Cap 210.

2.  The particulars are that between 1 August and 16 September 2014, with a view to gain for themselves, they made an unwarranted demand of HK$200,000 from staff members of a construction company with menaces.

3.  This particular construction company had bought some land in Tong Hang Tsuen, Sheung Shui.  The purpose was to store construction material. 

4.  In mid-August 2014, the manager of this company received a call from the 4th defendant on his own telephone, requesting a meeting.  The manager asked his subordinate, PW2, to deal with the request and he called him back and a meeting was arranged later on that day.

5.  This meeting was arranged at the village office of Tong Hang Tsuen.  Three staff members of that construction company went to that meeting and met the 1st, 2nd and 4th defendant.  All requested a “protection money” of $200,000 for this company to work in that village.  1st defendant told these staff members that he was a “tor dei” of the indigenous villagers. No police report was made and nothing was done about this demand.

6.  A few weeks later, the company found that a gate to the property had been glued and the entrance blocked by two private cars. The company decided to take action and made a police report.  A sting operation was set up.

7.  PW2 called the 4th defendant on a mobile provided by the police.  Over the phone, the 4th defendant suggested a one-off payment of $150,000 or a payment of $30,000 with a monthly instalment of $10,000 thereafter.

8.  The next day, the subordinate, PW2, called the 4th defendant again and agreed to the second proposal and a meeting was arranged for that evening.  The 4th defendant promised that the cars would be moved immediately.

9.  PW2 was given $30,000 in marked money by the police and several officers accompanied him, disguised as his own staff.

10.  In a restaurant, the 1st and 2nd defendant and another person met PW2’s party, but the 4th defendant was said to be on his way there.  The 1st defendant confirmed with PW2 the payment proposal agreed and the marked money was given to him.  He told PW2 that the 4th defendant would ensure that they had no trouble.

11.  The police operation turned overt and the 1st and 2nd defendant were arrested. 

12.  The 4th defendant was arrested some two weeks later.

13.  The three defendants’ best mitigation is their plea of guilty. 

14.  None of them have clear records, but I have to say that 1st defendant, despite having three previous, his last conviction was in 2003. 

15.  The 2nd defendant has seven previous, but his last conviction of note was in 1999.  However, only three weeks ago, on 1 April this year, he was sentenced to 9 months’ imprisonment for a fraud committed against the Social Welfare Department.  He was sentenced in Tuen Mun Magistracy. 

16.  The 4th defendant has four previous convictions, none of them again similar, and his last conviction was in 2001 where, as a 19-year-old, he obstructed the police.

17.  After the pleas on the last occasion, I adjourned for background reports.  They have certainly given me a full picture of all defendants’ backgrounds.

18.  All have grown up in the New Territories. 

19.  The 1st defendant is now 43 years old and is divorced with a 17-year-old daughter whom he is very close to.  I have been told that he committed this offence for financial reasons, wanting to save some money for university fees for his daughter.

20.  It has been submitted in mitigation that there is no real triad element in this offence.  The nuisance was obstruction by vehicles.  There were no physical threats or threats of violence to anyone.  It has been submitted that, for a serious offence, the facts here are not the worst for an offence of this nature.

21.  The 1st defendant was very frank with the probation officer and admitted that when he was very young he was a triad member, but has not been active for many, many years, and he, as well as the other defendants, have no convictions that suggest triad-related offences.

22.  The 1st defendant does suggest that the village head, who was a distant relation, got him involved in this offence, but he was not forthcoming with full details, perhaps because the village head is a relative.  There may very well be some truth in that, as the initial meeting was held in the village head’s office.

23.  The 2nd defendant is 54 years old, married with a young son.  I have had two mitigation letters from the 2nd defendant’s wife and son.

24.  I will also note that I have had a mitigation letter from the 1st defendant as well.

25.  The 2nd defendant, as I have said, grew up in the New Territories in a farming family.  He too frankly admitted to the probation officer that he was a triad for three years when he was 16 years old, but moved away from any triad association thereafter.

26.  From the report, I can see that he is very close to his son, and his wife is not of great health - she is of poor health - and, as is usual in these cases, the family will suffer from the defendant’s incarceration.  She has now had to give up work and has to rely on CSSA to support herself and her son.

27.  4th defendant is the youngest of all three defendants.  He is 33 years old.  I have been told that he has steady employment as a photographer, earning $20,000 a month.  He is happily married with two young children:  a 4-year-old and a 5-year-old.  His wife works full time.  In fact, she works longer hours than the defendant and, as a result, the defendant spends a lot of time with the children.

28.  From the report, I can tell that he is a family-orientated man.

29.  This defendant was also brought up in the New Territories and, in fact, still lives in the family home and, in fact, despite leaving school at 15, has worked consistently since then.

30.  There is no real explanation as to how he got involved in this offence, but it seems that there was peer pressure and, under the influence of others, he thought this was a good idea to make some money.

31.  I have full details of the defendants’ background and mitigation.

32.  I have to say that all the defendants do not come across as the usual blackmailers.  No defendant has any previous or similar conviction for blackmail or triad-related offences.   There is no evidence of any triad activity recently carried out by the defendants. 

33.  On the facts, it seems that the defendants thought this was an opportunistic chance to extract or extort some money from a company that set up in their village.  It is very telling that the initial meeting was held in the village head’s office.  It indicates a sense of entitlement or arrogance or confidence on the part of the defendants as villagers, as opposed to triads seeking “tor dei” in the usual sense of the word.

34.  Nevertheless, this is a serious offence and that can be seen from the 14-year maximum sentence that can be imposed.   

35.  There are no tariffs for this offence, but imprisonment is inevitable and often in excess of 3 years’ imprisonment.  In fact, the Court of Appeal is of the view that a 4-year starting point is appropriate, where there is triad involvement or triad language.

36.  Mr McGuinniety has submitted an authority, HKSAR v Wong Yin Chak, CACC 126/2004.  I will not repeat the details, but a 4-year term of imprisonment was reduced to 3 years.  I have taken that authority into account.

37.  Other relevant factors are that the money demanded was significant, but it was a single-occasion request.

38.  No actual threats were made to any person nor were there any out-and-out claims of triad membership by any defendant.

39.  Defendants, please stand up.

40.  Having considered all those factors relevant as well as all the mitigation put forward and the contents of the reports I obtained, I will take a 3-year starting point for this offence.

41.  You have all pleaded guilty.  You are entitled to a discount of one-third.

42.  After that discount, each defendant is sentenced to 2 years’ imprisonment.

COURT: Do you all understand that sentence?

INTERPRETER: All understood.

43.  The 2nd defendant is currently serving a 9-month term of imprisonment.  I intend to order both sentences to be served concurrently.