HKSAR v. WONG CHUN KIT

DCCC 836/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 836 OF 2002

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 2 charges of "Blackmail" (Charges 1 and 3); 2 charges of "Theft" (Charges 2 and 4); and a charge of "Failing to surrender to custody without reasonable cause" (Charge 5).

Summary of Facts

Background

2.  Mr. CHUNG (PW1) was living in a unit at Hing Wah (II) Estate in Chai Wan ("the Flat").

3.  On 3 June 2002, in response to a newspaper advertisement, PW1 made a phone call in the Flat to a male requesting for massage and prostitution service at $600.  Shortly after he gave his address to the male (about 1:15 am on 4 June), 2 females went to the Flat.

4.  PW1 was not satisfied with the appearance of the 2 females.  He told them that he did not need their service any more.  The 2 females still demanded $600 from PW1, which he paid them.  After receiving the money, one of the 2 females made a phone call and asked PW1 to speak to a male (later known as the defendant).

Charge 1

5.  In the phone conversation, the defendant claimed that both females were underage.  He demanded PW1 to pay $6,000 in a fierce manner; or otherwise the defendant would go to the Flat to chop PW1.  PW1 said he only had $5,700 in his bank account.  The defendant demanded PW1 to withdraw the money from the bank.

Charge 2

6.  Escorted by the 2 females, PW1 went to a nearby ATM.  One of the females gave him a phone and asked him to talk to the defendant.  The defendant told PW1 a bank account number and directed him to transfer $5,700 to that account.  PW1 did so.

7.  After making the transfer, PW1 was allowed to leave.  He returned to the Flat and made a report to the Police.

Charge 3

8.  About 1:00 am on 6 June (i.e. 2 days later), PW1 received a phone call from the defendant, who claimed himself to be "Ah Biu'.  He asked PW1 to make an additional payment in relation to the incident on 4 June; and his "big brother" would give PW1 a call later.

9.  About 1:50 am, PW1 received a phone call from a male named "Fat Gor", who demanded PW1 to pay compensation in the sum of $20,000 as settlement of the matter occurred on 4 June; or otherwise he would send his "brothers" to cause trouble to PW1.  Fat Gor also claimed himself to be a member of the 14K triad society.

10.  Before hanging up, Fat Gor gave PW1 the defendant's phone number and directed PW1 to contact the defendant.  PW1 phoned the defendant and was told to prepare the money.  PW1 was scared and reported the matter to the Police.

11.  Later, DSPC 21178 (PW2) and other police officers laid ambush at the Flat.  Marked money in the sum of $10,000 was prepared.  PW1 called the defendant asking him to collect $10,000. The defendant threatened to chop PW1 and warned him to prepare $20,000.  He also threatened PW1 that he would publicize PW1's act of soliciting sexual services from prostitutes if PW1 refuses to pay $20,000.

12.  After some negotiation, the defendant agreed to accept $10,000 as compensation.  Their phone conversation was recorded by the Police.

13.  PW2 posed as PW1 and stayed at the Flat.  WDPC 55242 was assigned to pose as PW1's elder sister.  About an hour later, a female (FONG) arrived at the Flat.

Charge 4

14.  PW2 opened the door and let FONG into the Flat.  PW2 told FONG that his elder sister would bring her the money.  Moments later, WDPC 55242 arrived at the Flat and gave the marked money to PW2, who then handed it to FONG.

15.  PW2 and his colleagues revealed their police identities and arrested FONG.  FONG denied any knowledge of the offences and agreed to cooperate with the Police.  FONG was allowed to call the defendant.  He instructed FONG to bring the money to Sincere House, Mongkok and told her to keep $1,300 of the money she collected.

16.  When FONG arrived at Sincere House, another female appeared and led her to a shoe shop in the building, where they met the defendant.  FONG handed the marked money ($8,700) to the defendant.

17.  Having received the marked money, the defendant went to a mobile phone shop and spent $700 repairing his phone.  PW2 intercepted the defendant when he came out of the mobile phone shop.  Upon search, marked money in the sum of $8,000 was found on the defendant.  Under caution, he admitted having committed the offences.  In his video recorded interview, the defendant made full admissions of the offences as outlined at paragraph 20 of the Summary of Facts.

Charge 5

18.  Charges 1 to 4 were brought against the defendant and he was due to appear in the District Court for trial on 13 and 14 November 2002.  He failed to attend the trial.  A warrant of arrest was issued against him.

19.  On 28 April 2014, the defendant surrendered to the Police.  He was interviewed in relation to Charge 5.  He remained silent under caution.

Mitigation & Sentence

20.  The defendant is now 42 and single.  He has 6 conviction records, of which 2 offences are related to dishonesty.  Defence counsel Mr. CHENG gave a detailed account of the defendant's personal history.  In short, the defendant did not even complete F.2.  After leaving school, he started working in the hair-dressing field.  In the mid/late 1990s, the defendant became involved in the prostitution arranging circle.  The present case arose from that type of illegal activities.

21.  In respect of the more serious offences (namely Charges 3 and 4), Mr. CHENG submitted that according to the Summary of Facts, it was "Fat Gor" who demanded $20,000 from PW1 and instructed PW1 to contact the defendant.  It is therefore reasonable to assume that there was someone higher up behind the defendant.

22.  Regarding the reasons for absconding, Mr. CHENG also gave a detailed account.  First, the defendant wanted to look after his stepmother, who was very close to him.  She had cancer when she was young but was cured.  Unfortunately, the cancer recurred in the late 1990s and her health deteriorated due to other complications.  She passed away in 2006.

23.  The 2^nd reason was in 2002, the defendant's daughter was only 6 years old.  The defendant was never married but has a daughter with a Spanish woman.  Not long after his arrest for the present offences, the Spanish woman returned to Spain, leaving their daughter behind with the defendant.  Fortunately, in 2004/2005, the Spanish woman was willing to look after their daughter in Spain, but the defendant was responsible for her school fees and expenses.

24.  The 3^rd reason was the defendant's father almost broke down after his stepmother's death, and had a stroke 3 months later.  Half of his body was paralyzed and he has been staying in a nursing home since.

25.  For the above reasons, the defendant foolishly felt that he could not go to jail.  As a fugitive, he remained in Hong Kong but could only take up manual labour jobs to earn a living.  Mr. CHENG stressed that the above reasons also motivated the defendant to work hard; he took up several jobs at the same time in order to provide for his stepmother, daughter and father.

26.  Mr. CHENG submitted that the defendant recently realized that he cannot hide forever.  He has been going steady with his girlfriend for 4 to 5 years and they intend to get married. She has been very supportive of the defendant when he revealed the truth to her earlier this year.  She would wait for him when he serves his sentence.  The defendant's daughter is now 18 and is about to enter university in Spain.  He feels that the burden is off.  Furthermore, the defendant has reformed himself during the absconding period; he became involved in charity work (such as cutting hair for elderly people and making financial donations to a library in the mainland).

27.  I will deal with the sentences for Charges 1 to 4 first.

28.  Mr. CHENG has helpfully submitted 2 sentencing decisions by the Court of Appeal for my reference (namely HKSAR v CHEN Wei Li CACC 402/2004 and HKSAR v XIE Chun Mei [2004] 1 HKLRD 865).  The facts in CHEN Wei Li bear many similarities to those in the present case (both involved prostitutes and accomplices blackmailing clients in order to extort money from them).  The Court of Appeal in CHEN Wei Li upheld the starting point of 2.5 years' imprisonment for the blackmail charges.  I see no reason why I should depart from the said starting point.  Hence, for Charges 1 and 3, I adopt a starting point of 2.5 years' imprisonment each.

29.  For the "Theft" charges (Charges 2 and 4), I adopt a starting point of 12 months' imprisonment each.

30.  Regarding the discount for guilty pleas, in HKSAR v LEUNG Wai Shan CACC 521/2002, Stuart-Moore VP held that a 25% discount (instead of the usual one-third) was the very most one could expect from a late plea of guilty (as a result of absconding from bail).

31.  In other words, for the blackmail charges (Charges 1 and 3), with the 25% discount for the guilty pleas, the sentences are reduced to 22 months each.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, except for Charge 1 (which I will discuss further below), I sentence the defendant to 22 months' imprisonment for Charge 3.

32.  For the "Theft" charges (Charges 2 and 4), with the 25% discount for the guilty pleas, the sentences are reduced to 9 months each.  Apart from this, I see no other mitigating factors which warrant any further discount.  Hence, I sentence the defendant to 9 months' imprisonment for each charge.

33.  Charges 1 and 2; Charges 3 and 4 come in pairs.  The sentences for each pair should run concurrently.  I am aware that in relation to Charge 2, the defendant has repaid PW1 $5,700.  A further discount should be given to reflect the element of compensation; however, a reduction in the sentence for Charge 2 would not be meaningful.  In order to give proper credit to the defendant for compensating PW1, I would reduce the sentence for Charge 1 to 20 months' imprisonment instead.

34.  Although arising from the same origin, Charges 3 and 4 (the 2^nd pair) are clearly independent of Charges 1 and 2 (the 1^st pair).  In other words, the sentences for the 2^nd pair should run consecutive to the 1^st pair, subject to the totality principle.

35.  For Charge 5, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[1]. The defendant has absconded for nearly 12 years, which is a long time by any standard.  In HKSAR v WONG Chi Hung CACC 300/2010 (Chinese judgment), the Court of Appeal upheld that a starting point of 3 months' imprisonment for a person who has absconded for 28 days.  I will adopt a starting point 6 months' imprisonment; reduce it by one-third to 4 months, which shall be the sentence for Charge 5.

36.  The defendant has no one but himself to blame for being wanted for nearly 12 years. The matter could have been resolved long time ago had he been responsible enough to come to court to stand trial.  Now he must face the consequences of his own absconding.  Charge 5 is separate and distinct from Charges 1 to 4.  The sentence for Charge 5 should run consecutive to the other 4 charges.  I must also mention that for whatever reasons, the defendant is most fortunate today that he is able to avoid the application for enhancement of sentence in relation to Charges 1 to 4.  In my view, he has unjustly gained by absconding.

37.  Having considered the overall criminality of the defendant in this case, all relevant mitigating factors and the totality principle, I order the sentences to run in the following manner :-

(i) Charges 3 and 4, concurrent;

(ii) Charges 1 and 2, concurrent; but 8 months consecutive to Charges 3 and 4;

(iii) Charge 5, consecutive to Charges 1 to 4.

Thus, arriving at a total prison term of 34 months.