HKSAR v. CHEONG CHI SENG

 DCCC1089/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1089 OF 2009

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Reasons for Sentence

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1.  I convicted the defendant after trial of five charges of blackmail. The offences occurred between December 2007 and 22 November 2008. The victim in each case was a lady who has been referred to as Madam X, and the total amount obtained from this lady was $200,000.

2.  At the material time, Madam X, who is 51 years of age, was a restaurant worker. She was married and had five children who were aged 18 to 25. Her husband has not worked since the mid‑1990s and has been suffering from cancer from that time. She lives in Fanling.

3.  She got to know the defendant between 2002 and 2005 when she worked at a restaurant called the Chun Fo Food Centre. In 2005, she left that employment and started to work at the Wah Yiu Canteen. The defendant also at about that time left the restaurant and opened his own restaurant in Tin Shui Wai. Whilst PW1 was working at Wah Yiu, she asked the defendant if he would pretend to be her employer to issue a cheque in the sum of $3,600 as proof of her income. The purpose of this was to her to perpetrate a fraud on the Social Welfare Department in order to make a fraudulent claim for CSSA.

4.  From September onwards, while PW1 was working in the Kin Hong Restaurant at Fotan for a Mr Yip Kwan-ching, who I refer to as PW2, the defendant asked PW1 to lend him various sums amounting to a total of $200,000. She maintained that apart from the first two occasions, for the other four occasions on which she lent him money, she did so because the defendant had threatened her.

5.  In September 2007, the victim received a call from the defendant who asked to borrow $30,000 as he was required to pay a penalty arising from his restaurant business. He agreed to pay interest of $2,000 for every $10,000 borrowed. PW1 eventually agreed and handed over the cash at the Sheung Shui Railway Station.

6.  In November 2007, he requested a further $30,000. Initially, she refused and she said she only agreed because the defendant threatened that if she did not pay him the loan, he would not repay the previous loan. He was back again for more money in December 2007, this time asking for $40,000. He said he had opened a restaurant on the mainland. Initially, she refused and she claimed - and I accepted her claim - that he then threatened that if she did not lend him the money, he would take her daughter, and it was in those circumstances that she handed him over $40,000, and an IOU was prepared on that occasion and signed by the defendant.

7.  In March 2008, the defendant called her again, asking for a further loan. He asked for $50,000 and said that if she refused, he would chop her and make sure that she lost her job and he would harass her employer and burn down his shop. The victim was scared and requested a loan from her employer. The defendant went to her place of work and eventually was paid a total of $20,000, and the IOU was endorsed to that effect.

8.  On 17 November, the defendant requested a further $30,000, claiming that he was going to open a restaurant in Macau. She refused and he made further threats against her. Eventually, she agreed to pay him $30,000. Immediately after that, he wanted a further $50,000 and uttered the same threats, and again she agreed on this occasion because of those threats, and the IOU was altered to the amount of $200,000.

9.  A few days later, the defendant demanded $100,000. The victim told the court that she told the defendant that she had no money. He made further threats and she said she felt very concerned about the situation. She told her daughter and eventually a report was made to the police. The defendant was later arrested and interviewed by the police. He admitted that he had lent $200,000 from the victim but denied making any threats against her.

10.  I note the defendant has only one conviction. That is on 23 January 2006 for supplying liquor without a licence. He was fined $3,000. The defendant is 33. He was born in Macau. He finished Primary 5 education in Macau. He has had a number of jobs since leaving school. He was divorced in 2009 and now lives with his parents in Tuen Mun. His two sons, who are aged 8 and 5, live with his ex-wife. He works as a casual vehicle attendant, earning some $300 per day.

11.  I was told in mitigation that his business problems started when he started his own business in Tin Shui Wai in the middle of 2005. The business failed and had to be closed down in 2008. At that time, he incurred debts of between five hundred and six hundred thousand dollars which are still outstanding. Some of that indebtedness was as a result of loans from loan sharks and he has been harassed by them to make repayments. He was unable to manage his business affairs and his marriage broke down.

12.  In mitigation, I was told that unlike many of the offences that come before this court, there is no triad element at all involved in these offences, and I accept that. I also accept the further matter in mitigation that was placed before the court that this was not a sophisticated operation. The defendant acted alone and he gave his correct details in the two IOUs that were produced.

13.  However, there is no doubt in the court’s mind that the defendant took advantage over this foolish lady. I do not accept that at any time he intended to repay these moneys. She placed herself in a difficult situation when she asked the defendant for the cheque of $3,600 in order to defraud the Department of Social Welfare, and the defendant exploited her. The sum of money he received from the victim is an enormous amount of money considering the means and the income of the victim, and it is that that makes this such a serious offence. The suggestion that she had made these loans out of pity for the defendant is ludicrous.

14.  In considering sentence, it seems to me that a starting point of 2 years’ imprisonment would be appropriate in this case for each offence. I have considered the question of totality and decided that the sentence of 2 years should run concurrently.