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DCCC896/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 896 OF 2009
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| Date: |
31 December 2009 at 10.31 am |
| Present: |
Ms Ranee Khubchandawl, PP of the Department of Justice, for HKSAR
Mr Richard David Donald, instructed by Francis Kong & Co., assigned by the Director of Legal Aid, for the Defendant |
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Reasons for Sentence
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1. The defendant has pleaded guilty to a charge of blackmail. The particulars of the offence are that on 29 June 2009, he went to a shop at the ground floor of the Lei Muk Shue Estate in Hong Kong and blackmailed the owner of the shop. The facts admitted by the defendant disclose that the shop itself is a grocery shop. The owner of the shop is referred to in the Summary of Facts as PW1, and there was a member of staff on the premises at the time of the offence, and he is referred to PW2.
2. At 10.45 on the evening of 29 June, the defendant entered the store. He pointed to the computer monitor at the cashier’s desk. He said that the proprietor was engaging in illegal gambling on soccer games. The defendant said that he was the “Tor Dei” and belonged to the Wo Shing Wo Grease Dung and said he collected “Tor Dei.” He said further that Kam Do in block 4 had already given “Tor Dei” to him. He said his followers had given the proprietor a lot of business and that if the proprietor gave him “Tor Dei,” there would be no problem for him to do business there. He said that there would also be no problem for him to do bookmaking of soccer games and horseracing.
3. What the defendant said to PW1 was overheard by PW2. The defendant told the proprietor, PW1, that he should give the defendant a red packet every month, and he identified himself as Ah Wing.
4. 20 minutes later, the defendant returned to the store. He asked the proprietor how it was going, and PW1 told the defendant he would not pay any “Tor Dei.” The incident was reported to the police by PW1 on 1 July. The events of 29 June were recorded on the CCTV at the store, and this was provided to the police for the purposes of their investigation. The defendant was arrested the following day and denied committing any offence. A T-shirt was recovered from the residence of the defendant and it was similar to the one worn by the defendant and recorded and captured on the CCTV recording.
5. The police conducted an ID parade the following week and both PW1 and PW2 positively identified the defendant.
6. The defendant has eight previous court appearances and they cover a variety of offences, the majority of which are drug related. I noted that in 2007, the defendant was convicted of an offence of blackmail. I also noted that that was dealt with at the magistrates’ level by way of a fine of $10,000 and compensation of $3,000.
7. In mitigation, I was told that the defendant is 25 years of age. He was born in Hong Kong, and at the time of his arrest, he was employed as a driver earning approximately $10,000 per month. His father is 65 and a retired construction site worker and his mother is 60. She is a housewife. He has an elder brother and an elder sister who are both in employment.
8. With regard to the offence, it was pointed out that the offence took place at the estate where the defendant lives and is well-known. The defendant was aware that the owner of the store where the offence took place was involved in illegal bookmaking. It was urged upon the court that this was an offence committed on the spur of the moment. The defendant was under the influence of ketamine and was not thinking properly.
9. I was told that the defendant’s assertion that he was already collecting “Tor Dei” from somebody called Kam Do in block 4 was an outright lie and that the defendant had no followers. I was told that the defendant is not in fact a triad member and that is borne out also by the defendant’s record.
10. It was urged upon me again in mitigation, and this was not contradicted by the prosecution, that the defendant wrote down his own mobile telephone number and gave it to the store owner and that the store owner rang the number in the presence of the defendant and the defendant’s mobile rang.
11. Counsel for the defendant has also submitted to the court a letter from the defendant himself and one from his family. The defendant in his letter to the court says that whilst he has been on remand, he has reflected deeply and he feels remorseful for what he has done. He understands the seriousness of the offence and hopes that the victim and his family will forgive him. He said that at the time of the offence, he was being pursued in connection with a loan of $100,000 and he was stressed because of the pressure being put on him to repay that loan. He said that notwithstanding this offence, he still has the support of his family. He promises to reform and asks for leniency.
12. The letter from his family also asks for leniency. They say that since he was last released from prison, he has been pursued by persons in connection with the loan and has been in physical and mental agony. He is the breadwinner of the family and hid his debts from the family, and they confirm he has no triad affiliations.
13. A letter was also produced in connection with the loan from a firm called Gold Partners which states that they had been instructed to handle the overdue account. I am told that the defendant took out the loan in order for renovations to be carried out at the family home.
14. A number of authorities have been submitted concerning blackmail cases. Dealing with them in date order, the first case is the case of HKSAR v Lim Hay Bun Benny CACC213 of 99. The defendant in that case faced charges of false imprisonment and blackmail. This was the very common scenario where the victim had gone to Macau to gamble and incurred loans. He was subsequently brought back to Hong Kong and pressure was put on him in connection with the loans. The court in that case took a starting point for that type of blackmail of 4 years’ imprisonment.
15. The next case was the case of HKSAR v Wong Fu Wah & Another [1999] 1 HKC 363. In that case, the applicant claimed that he was a local bully in the district and demanded money from the proprietor of a bar the sum of $10,000 per month with threats. He was accompanied by 10 or 15 “brothers” at the bar. The court in that case took a starting point of 4 and a half years’ imprisonment. I noted in that case that the counsel for the applicant referred the court to the case of R v Chan Wing Cheong Cr App 98 of 87 where it was held that 3 years after trial was appropriate starting point for offences of that nature. The court observed in that case, however, that since that case, heavier sentences had been passed because of the prevalence of this type of offence.
16. The last case I was referred to was the case of HKSAR v Cheung Wan Ing [2003] HKC 762. The facts were that the applicant and four men entered a restaurant and the applicant identified himself as a local bully. The applicant intimated that they could protect the restaurant if it was not already protected by anybody else. Subsequently, the applicant went to the restaurant on his own and informed an undercover police officer that he was a triad member and demanded $5,000 per month as protection money. The starting point in that case was 3 years and 9 months.
17. The court observed in that case that it is clear that this type of offence is quite prevalent, and there is no doubt that a serious view has to be taken of it. The sort of threats which are made, either implicitly or explicitly, cause fear and disquiet to victims. The court must demonstrate to offenders that this type of activity will not be tolerated.
18. Obviously, the facts in all the cases are slightly different and each case must be dealt with on its own peculiar facts. This case is distinguishable from the cases cited. It is different from the type of case where a person has been duped into loaning money in Macau. I noted that with the local-bully-boy cases the defendants had gone to the premises where they were to exact protection money together with a number of other persons as a show of strength.
19. It is urged upon me that when comparing the facts of this particular case with those offences, this is a very unsophisticated type of attempted extortion. The defendant had gone to the store on his own. That he had taken drugs is not an excuse but it explains perhaps why he did what he did. The defendant not only goes to the store alone, he makes the demand in the presence of a witness and it is recorded on CCTV. The defendant lives in the area. Apparently, he gave the store owner his correct mobile number, and it seems to me that all these features distinguish this particular case from some of the cases which have been cited to me.
20. However, I note that the defendant does have a list of previous convictions, including convictions for wounding and for blackmail. The blackmail offence was obviously a less serious offence than this offence which is before the court today because it was dealt with at the magistrates’ court level and it was dealt with by way of fine. However, this conviction must have brought home to the defendant the seriousness of this type of offence.
21. Taking into account all the issues that have been urged upon me, I have decided that the starting point on the particular facts of this case should be 3 years’ imprisonment. The defendant will be allowed the full discount for his guilty plea. The sentence that will be served by the defendant will be one of 2 years’ imprisonment.
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