區域法院（刑事）Deputy District Judge Colin Wong14/12/2023
DCCC821/2022
A A
B B
DCCC 821/2022
C [2023] HKDC1805 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 821 OF 2022
F F
G ---------------------------------------- G
HKSAR
H H
v
I WOO KA MING I
----------------------------------------
J J
K Before: Deputy District Judge Colin Wong K
Date: 15 December 2023
L L
Present: Ms Karinna Lai, Senior Public Prosecutor (Ag.), for
M HKSAR M
Mr Young Ngai Man Simon, instructed by Samuel Ho & Co ,
N N
assigned by the Director of Legal Aid , for the defendant
O Offences: [1] Claiming to be a member of a triad society (聲稱是三 O
P
合會社團的成員) P
[2] Common assault (普通襲擊)
Q Q
[3] Blackmail (勒索罪)
R R
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S S
REASONS FOR SENTENCE
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1. Defendant pleaded guilty to three charges: (1) Claiming to be
D D
a member of a triad society1; (2) Common assault2; and (3) Blackmail3.
E E
ADMITTED FACTS
F F
G 2. X had been running a vegetable stall (“Shop 1”) since 1991 G
and it was closed in 2011 due to the problem of working capital. All the
H H
outstanding debts of Shop 1 had been settled at the time it was closed. X
I and Y later started to operate another shop (“Shop 2”) in Sheung Wan in I
2013 and there was no outstanding debt for Shop 2.
J J
K 3. At around 1:00 p.m. on 3 September 2021, the defendant K
attended Shop 2 with his male friend Mr. FU (“FU”) and requested for
L L
payment of the debt of HK$155,500 owed to someone known as “黑鬼” or
M “大舊”. A total of 11 promissory cheques bearing the company chop of M
N Shop 1 and signature of X were shown to X. X refused to make any N
payment as he had already settled the debts owed to the person known as
O O
“黑鬼” or “大舊” back in 2012-2013.
P P
4. The defendant then stated to X “I am from number. Fuck you.
Q Q
Won’t you repay the money?” (我冧把嘅，屌你老母，你還唔還錢啊?)
R (Charges 1 & 3). The defendant then pushed X on his right chest with his R
right hand, causing X to lose balance and his right waist to bump into the
S S
1
Contrary to section 20(2) of the Societies Ordinance, Cap. 151
T 2 T
Contrary to Common Law and punishable under section 40 of the Offences against the Person
Ordinance, Cap. 212
3
Contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210
U U
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A A
B B
cabinet behind (Charge 2). Y then brought the defendant and FU outside
C Shop 2 and had a further discussion with them regarding the repayment of C
debts. Y eventually agreed to make the repayment as she was worried that
D D
the defendant and FU would hit X again and Y was not sure whether X had
E settled the debt yet. X did not seek medical treatment or report the case as E
he was afraid that the defendant and FU would seek revenge on them.
F F
G 5. In the morning of 6 September 2021, Y received a phone call G
from the defendant stating that he was going to Shop 2 and asking Y to
H H
prepare HK$30,000 for the repayment. The defendant later arrived at Shop
I 2 but Y requested the defendant to allow her some more time to prepare I
the money.
J J
K 6. At around 11:30 a.m. on 7 September 2021, Y received a K
phone call from the defendant again stating that he was going to Shop 2.
L L
The defendant arrived at Shop 2 shortly and Y handed the cash of
M HK$29,000 to the defendant. A written receipt was signed by the defendant. M
The defendant further requested Y to deposit HK$1,000 into the
N N
defendant’s Jockey Club account after work, which Y complied.
O O
7. It was the common practice for shop owners at the market to
P P
issue the promissory cheques for borrowing money from others and the
Q cheques would be returned to the borrower once the debts were repaid. Q
R R
ARREST AND CAUTION
S S
8. At around 9:34 p.m. on 10 September 2021, the defendant was
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arrested. Under caution, the defendant admitted pushing X once out of
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A A
B B
anger as X was approaching the defendant. The defendant claimed that he
C only intended to scare X and he was not a member of any triad society. C
D D
9. 3 cautioned VRIs were conducted with the defendant on 11
E September 2021 in which he stated, inter-alia, that : E
F F
i) He went to the material location with Fu for debt
G collection; G
H H
ii) The defendant pushed X in the area between
I chest and shoulder once; I
J J
iii) The defendant stated to X “I am from number.
K Fuck you.” (我冧把嘅，屌你老母) in the heat of the argument. K
The defendant only intended to scare X and the defendant
L L
actually did not have any triad-related background. To the
M defendant’s knowledge, number (冧把) means 14K which is M
N a triad society; N
O O
iv) The defendant went to the market in Sheung
P Wan on 6 and 7 September 2021 for debt collection ; P
Q Q
v) The defendant received $29,000 cash and $1,000
R transfer from Y. R
S S
CRIMINAL RECORD
T T
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A A
B B
10. The defendant has one criminal conviction for “Criminal
C Damage” on 5th February 2007. The defendant was bound over for 12 C
months.
D D
E MITIGATION E
F F
11. The incident occurred on 3 September 2021 at around 1 pm.
G The defendant was helping Mr Fu to collect a long-standing debt owed to G
Mr Fu’s father. Mr Fu brought along the 11 promissory cheques (total
H H
amount being HK$155,500) which X had signed for a loan he had obtained
I from Mr Fu’s father many years ago. As Mr Fu was still holding the I
promissory cheques, this meant the debt X owed to his father was still
J J
unpaid.
K K
12. The assault on X was momentary, sparked by the heat of the
L L
argument. It involved only a single push to the chest, causing X to lose his
M balance and bump into a cabinet. No injuries were sustained. It was also in M
this moment whilst emotions were still high that the defendant said the
N N
words, “I am number. Fuck you. Won’t you repay the money?” in Chinese.
O The defendant and Mr Fu almost immediately left the shop at that time. O
P P
13. Arrangements were then made for X and Y to make payments
Q on the loan. It should be noted that even before any offences that had taken Q
place, X and Y were prepared to repay some amount on the loan but the
R R
terms were not agreed.
S S
14. When the defendant was arrested on 10 September 2021, he
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readily admitted his guilt to the police under caution. Similarly, when he
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B B
provided three VRIs to the police on 11 September 2021, he sincerely and
C fully admitted his responsibility and acknowledged his wrongdoing. In his C
caution statements and VRIs, the defendant unequivocally denied he was a
D D
triad member; he said those words in the heat of the moment only to scare
E X. There is no evidence that the defendant is or has ever been a triad E
member.
F F
G CIRCUMSTANCES OF THE DEFENDANT G
H H
15. From the many letters of support the defendant has obtained,
I it is readily apparent that he is a devoted son and nephew and a person of I
good character. What happened in those few seconds on 3 September 2021
J J
was completely out of character and shocking to those who know him.
K K
16. The defendant has one previous conviction for criminal
L L
damage to property back in February 2007. Defence submitted this
M previous conviction was so dated and unrelated to the present offences that M
the defendant should be treated as a person of clear record and good
N N
character.
O O
17. The defendant was born in Hong Kong on 6 September 1983.
P P
The defendant experienced hardship whilst growing up. In 1995, the
Q family moved to England. His older brother moved earlier and started a Q
business there. However, things did not work out as planned. His parents
R R
moved back to Hong Kong in 1998. The defendant then lived with his
S brother but they had a poor relationship, and his brother would often S
physically beat the defendant. When the defendant could no longer stay
T T
with his brother, he moved out to live with an uncle who had eight children.
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B B
To support himself, the defendant began working in restaurants. He left
C high school after Grade 9 and started to work full-time as a chef in around C
January 1999. He worked in different Chinese restaurants in England.
D D
E 18. In 2011, the defendant’s father passed away. In the following E
year, he decided to return to Hong Kong to look after his mother. Without
F F
a high school diploma, the defendant struggled at first to make a living.
G From 2013 to 2019, he worked as an attendant at a licenced mahjong G
parlour. Then Covid-19 hit and he had to leave his job as the parlour
H H
became inoperable. Since then, he has been unable to hold down a
I permanent position; he has carried out HKTV Mall deliveries, become a I
licenced security guard, worked as a waiter, and finally now is working as
J J
a substitute chef in a cha chaan teng in Kowloon. His monthly income is
K roughly HK$12,000. K
L L
19. The 10 reference letters presented to the court all speak
M emphatically of the defendant’s filial piety and his genuine care and M
concern for others, especially the elderly. In his own letter to the court, the
N N
defendant says he learned a “profound lesson” from this incident. He
O recognises that he committed a “serious offence” and feels “very O
remorseful”. He swears he “will not commit offence again in future”; he
P P
hopes he “can return to society as soon as possible and take good care of
Q [his] parents and family”. Q
R R
SUBMISSIONS ON SENTENCE
S S
20. Defence submitted the present case is a little unusual in that it
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has qualities of two different kinds of blackmail cases commonly seen in
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A A
B B
the courts. The first kind is the protection money demand cases with triad
C overtones. The second kind is the cases involving a demand to repay a debt. C
These latter cases involve a legitimate demand for money but made using
D D
improper means. The first kind of cases involve no legitimate demand,
E being a naked extortion and appropriation of money. For this reason, the E
first kind of cases tend to be more serious than the second. Defence
F F
submitted the present case essentially comes within the second categorially
G but has the elements of triad overtone and use of force typically associated G
with the first kind of case.
H H
I 21. The Court of Appeal’s judgment in HKSAR v Fong King I
Choi4 provides useful guidance for blackmail cases of the first kind, i.e.
J J
protection money demand cases. In these types of cases, the Court noted
K that the following “factors bearing on the gravity of the offence”: - K
L “(1) the nature and amount of the demand; whether the L
demand was for a one-off payment or regular payments; (2)
M M
the nature and circumstances in and by which the demand
was made; whether the offender acted alone or with others;
N N
whether the demand was made on a single occasion or on
O repeated occasions; whether there was actual or threatened O
violence to a person or damage to property; whether there
P was an expressed or implied triad connection; whether it was P
part of a sustained campaign of intimidation against other
Q Q
victims; and (3) the consequences of the demand and the
R effect on the victim; whether the victim yielded to the R
demand for extortion money and whether any loss was
S suffered.” S
T T
4
[2020] 2 HKC 219
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A A
B B
22. When applied to the circumstances of that case, the Court of
C Appeal held that a 3-year imprisonment starting point was too high and that C
a more appropriate starting point was 21 months’ imprisonment.
D D
E 23. Turning to the blackmail cases of the second kind, defence E
submitted two District Court judgments of relevance. HKSAR v Khan
F F
Amjad (unreported, DCCC3/2012, 13 February 2012, Joseph To DDCJ)
G and HKSAR v Lau Ming Tsun (unreported, DCCC43/2015, 15 April 2015, G
G Lam DCJ).
H H
24. In respect of the present case, defence submitted it is one at
I I
the ‘lower end of the scale’ of culpability for the offence of blackmail. It
J was entirely motivated by a desire to help a friend collect a genuine debt. J
Thus, the present case does not have the aggravating qualities of ‘tor dei’
K K
protection money demand cases. However, physical force was used and a
L claim of being a triad member was made. Also, HK$30,000 was obtained L
from X and Y who paid the amount partly to pay off the loan and partly
M M
out of fear of being hit again. These are the aggravating features of the
N N
present case. Nonetheless, it is submitted these features must be viewed in
O
their proper context, that the force used and claim made were sudden O
actions arising only because there was a heated argument occurring at the
P P
time. Neither the defendant nor Mr Fu set out to use force or threats to
Q collect the loan. The defendant’s confessions to the police a few days later Q
clearly shows his regret and remorse for his actions. With reference to the
R R
authorities cited, defence submitted a starting point sentence of
S approximately 18 months’ imprisonment would be appropriate in the S
present case.
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25. Furthermore, it is submitted the defendant’s timely guilty plea
C and demonstration of genuine remorse warrant the usual one-third discount C
from the starting point sentence. The defendant also respectfully asks the
D D
court to take into account the positive evidence of his good character and
E the real need for him to take care of his elderly mother and aunt. E
Importantly, this will be his first ever experience of imprisonment. It has
F F
been held that as a general rule it is undesirable that a first sentence of
G immediate imprisonment should be very long, disproportionately to the G
gravity of the offence, and imposed for reasons of general deterrence5. In
H H
the present case, the defendant has clearly learned his lesson and it will not
I require a long sentence of imprisonment to deter him from future offending. I
The shame of these offences, having now informed his many family
J J
members and friends, will certainly keep him in check in the future, if not
K for the rest of his life. K
L L
26. Finally, as for totality, defence submitted that the sentences
M for the three offences should be ordered to be served concurrently. It is M
submitted the present case is, in substance, one single transaction of
N N
offences and the defendant should be sentenced accordingly.
O O
27. Background report was obtained and in general it supports the
P P
mitigation submitted. I will not repeat the contents herein. The defendant
Q has never been in prison before. From the mitigation letter he wrote, his Q
current remand has already taught him a great lesson.
R R
S ANALYSIS S
T T
5
R v Curran (1973) 57 Cr App R 948, 947-8 (CA), which has been cited with approval in several Hong
Kong authorities.
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B B
C 28. The offence of common assault carries maximum terms of C
6
imprisonment of one year . The offence of claiming to be a triad member
D D
has maximum terms of imprisonment of three years (for a first conviction) 7.
E The offence of blackmail has a maximum sentence of 14 years E
imprisonment8. There are no tariffs for these types of offences.
F F
G 29. Defence rightly pointed out that the present case has qualities G
of two different kinds of blackmail cases commonly seen in courts. The
H H
first being the protection money demand cases with triad overtones. The
I second is the cases involving a demand to repay a debt. I
J J
30. The two district court authorities submitted by defence
K K
relate to the second type of blackmails. For the first type, I have
L considered the following authorities. In the case of HKSAR v LUI Chun- L
yeung [2014] 2 HKLRD 993, the appellant threatened to collect a
M M
monthly protection fee at $300, if the victim refused to pay, to set her
N salon alight, as had happened to a nearby shop. Demands for protection N
money were considered to be mark of triad activity not least when the
O O
demand was for regular monthly instalments. The Court of Appeal
P considered the appropriate starting point to be 3 years and 3 months’ P
imprisonment.
Q Q
R R
31. The case of HKSAR v WONG Fu-wa & anor[1999] 1 HKC
S 363 concerned two appellants. The first appellant claimed himself to be S
T 6 T
S 40 of the Offences against the Person (Cap 212)
7
S 20(2)(a) of the Societies Ordinance (Cap 151)
8
S 23(3) of the Theft Ordinance (Cap 210)
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A A
B B
the local bully in the district and demanded from the proprietor of a bar a
C sum of $10,000 per month with threats. The second appellant was one of C
the first appellant’s ten or fifteen “brothers” present at the bar on the first
D D
occasion. The second appellant subsequently accompanied the first
E appellant on other occasions when the latter attended the bar. The Court E
of Appeal was with the view that even though the second appellant was
F F
lending support to the first appellant, there should be no disparity in
G sentence and considered a starting point of four years’ imprisonment was G
appropriate. The Court also held that “the sort of threats which were
H H
made either implicitly or explicitly caused fear and disquiet to
I victims. The court must take a serious view of it and demonstrate to I
offenders that this type of activity would not be tolerated.”
J J
K K
32. Both of the above authorities relate to protection money, and
L L
it shows how serious blackmail case with triad element is. I have also
M
considered the authorities submitted by defence, including HKSAR v Fong M
King Choi . However, the starting point of Fong King Choi of 21 months’
9
N N
imprisonment is due to the particular facts of the case, as the defendant in
O that case was drunk, acting alone and asked for $100 only. Also, the staff O
in that convenient store (the victims) were always in control of the situation.
P P
Q 33. Defence also relied on the case of HKSAR v Khan Amjad and Q
HKSAR v Lau Ming Tsun. However, the court noticed that the defendant
R R
in both cases never claimed or hinted that he was a member of triad society.
S In Khan Amjad, paragraph 23, the sentencing judge also said “And most S
importantly, the offences were not linked to triad activities”. Therefore,
T T
9
[2020] 2 HKC 219
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A A
B B
the rather low starting point in these authorities do not include triad
C elements. C
D D
34. In the present case, the defendant was asking for
E HK$155,500.00 from X and Y. The defendant did not come alone, but E
with Mr. Fu. Despite the defendant and Mr. Fu were claiming for a single
F F
loan repayment, the defendant went to Shop 2 twice afterwards to collect
G HK$30,000. At the time of offence, the defendant claimed to be a triad G
member and pushed X on his right chest, causing X to lose balance and
H H
bump his right waist into the cabinet behind. As a result, the victims gave
I HK$30,000 to the defendant. I
J J
35. Defence suggested that the defendant was helping to claim a
K genuine loan, which was a personal loan, rather than loan related to Shop K
1 and 2. Since they had the promissory note with no contradictory evidence,
L L
I accept defence assertion. I also accept this is not a case of protection
M money. M
N N
36. I also accept the defendant did not initially intend to use triad
O
background to collect the debt. From the conversations heard in the video, O
the offence date was not the first time the defendant was there. There is no
P P
evidence to suggest that he claimed to be a member of triad society before.
Q Only afterwards, when X refused to pay, did the defendant say the material Q
words. However, even if the triad membership claim came after X’s
R R
refusal, and it was resulted from the heat of argument, it is still a serious
S offence. Also, pushing against an elderly , X , made the offence worse. S
T T
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A A
B B
37. I do not accept the defendant was provoked. The defendant
C came in with full force to collect money, in an intimidating manner. X C
refused to cooperate under the defendant’s intimidation, I do not think X’s
D D
refusal can amount to provocation.
E E
38. From the video played in court, one can see they were arguing
F F
about the loan, which X, or Y, in particular, was willing to discuss to repay.
G However, the defendant was forcefully arguing, with mention of “我都唔 G
帶人落嚟”, which indicated he could have brought more people along to
H H
intimate X. Given the age of the victims, obviously the defendant was
I I
trying to intimate them.
J J
39. In gist, the defendant came with another person to collect a
K large sum of money, a genuine debt in an intimidating manner from X and K
Y. After X refused to pay, the defendant then claimed to be a triad member
L L
and pushed X. X was 71 years old at the time. The defendant later on
M received $30,000 from the victims. These are all aggravating factors. Even M
if the defendant, as claimed, was not a triad member, no matter how one
N N
looks at it, this is a serious offence. In the circumstances, I am of the view
O immediate imprisonment is the only sentencing option, and the following O
starting points should be adopted:
P P
Q Q
i) Charge 1 – 12 months’ imprisonment;
R R
ii) Charge 2 –3 months’ imprisonment; and
S iii) Charge 3 –2 years and 6 months’ imprisonment. S
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40. Given his timely plea, 1/3 discount is given. He has one
C criminal conviction in 2007, resulted from a minor domestic dispute. He C
had never been in prison prior to the current remand. I have also considered
D D
the mitigation submitted, in particular his good character praised by his
E references. I will give him 1 month, 1 week and 2 months’ discount E
respectively. Therefore, the sentence for each offence is:
F F
G i) Charge 1 – 7 months’ imprisonment; G
ii) Charge 2 –1 month and 3 weeks’ imprisonment;
H H
and
I iii) Charge 3 –18 months’ imprisonment. I
J J
41. I considered the three offences occurred at the same time, and
K are part and parcel of a single transaction. Therefore, I will order that all K
sentences to run concurrently. The defendant is sentenced to a total of 18
L L
months’ imprisonment.
M M
N N
O O
P P
(Colin Wong )
Deputy District Judge
Q Q
R R
S S
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A A
B B
DCCC 821/2022
C [2023] HKDC1805 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 821 OF 2022
F F
G ---------------------------------------- G
HKSAR
H H
v
I WOO KA MING I
----------------------------------------
J J
K Before: Deputy District Judge Colin Wong K
Date: 15 December 2023
L L
Present: Ms Karinna Lai, Senior Public Prosecutor (Ag.), for
M HKSAR M
Mr Young Ngai Man Simon, instructed by Samuel Ho & Co ,
N N
assigned by the Director of Legal Aid , for the defendant
O Offences: [1] Claiming to be a member of a triad society (聲稱是三 O
P
合會社團的成員) P
[2] Common assault (普通襲擊)
Q Q
[3] Blackmail (勒索罪)
R R
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S S
REASONS FOR SENTENCE
T T
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A A
B B
C C
1. Defendant pleaded guilty to three charges: (1) Claiming to be
D D
a member of a triad society1; (2) Common assault2; and (3) Blackmail3.
E E
ADMITTED FACTS
F F
G 2. X had been running a vegetable stall (“Shop 1”) since 1991 G
and it was closed in 2011 due to the problem of working capital. All the
H H
outstanding debts of Shop 1 had been settled at the time it was closed. X
I and Y later started to operate another shop (“Shop 2”) in Sheung Wan in I
2013 and there was no outstanding debt for Shop 2.
J J
K 3. At around 1:00 p.m. on 3 September 2021, the defendant K
attended Shop 2 with his male friend Mr. FU (“FU”) and requested for
L L
payment of the debt of HK$155,500 owed to someone known as “黑鬼” or
M “大舊”. A total of 11 promissory cheques bearing the company chop of M
N Shop 1 and signature of X were shown to X. X refused to make any N
payment as he had already settled the debts owed to the person known as
O O
“黑鬼” or “大舊” back in 2012-2013.
P P
4. The defendant then stated to X “I am from number. Fuck you.
Q Q
Won’t you repay the money?” (我冧把嘅，屌你老母，你還唔還錢啊?)
R (Charges 1 & 3). The defendant then pushed X on his right chest with his R
right hand, causing X to lose balance and his right waist to bump into the
S S
1
Contrary to section 20(2) of the Societies Ordinance, Cap. 151
T 2 T
Contrary to Common Law and punishable under section 40 of the Offences against the Person
Ordinance, Cap. 212
3
Contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210
U U
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A A
B B
cabinet behind (Charge 2). Y then brought the defendant and FU outside
C Shop 2 and had a further discussion with them regarding the repayment of C
debts. Y eventually agreed to make the repayment as she was worried that
D D
the defendant and FU would hit X again and Y was not sure whether X had
E settled the debt yet. X did not seek medical treatment or report the case as E
he was afraid that the defendant and FU would seek revenge on them.
F F
G 5. In the morning of 6 September 2021, Y received a phone call G
from the defendant stating that he was going to Shop 2 and asking Y to
H H
prepare HK$30,000 for the repayment. The defendant later arrived at Shop
I 2 but Y requested the defendant to allow her some more time to prepare I
the money.
J J
K 6. At around 11:30 a.m. on 7 September 2021, Y received a K
phone call from the defendant again stating that he was going to Shop 2.
L L
The defendant arrived at Shop 2 shortly and Y handed the cash of
M HK$29,000 to the defendant. A written receipt was signed by the defendant. M
The defendant further requested Y to deposit HK$1,000 into the
N N
defendant’s Jockey Club account after work, which Y complied.
O O
7. It was the common practice for shop owners at the market to
P P
issue the promissory cheques for borrowing money from others and the
Q cheques would be returned to the borrower once the debts were repaid. Q
R R
ARREST AND CAUTION
S S
8. At around 9:34 p.m. on 10 September 2021, the defendant was
T T
arrested. Under caution, the defendant admitted pushing X once out of
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A A
B B
anger as X was approaching the defendant. The defendant claimed that he
C only intended to scare X and he was not a member of any triad society. C
D D
9. 3 cautioned VRIs were conducted with the defendant on 11
E September 2021 in which he stated, inter-alia, that : E
F F
i) He went to the material location with Fu for debt
G collection; G
H H
ii) The defendant pushed X in the area between
I chest and shoulder once; I
J J
iii) The defendant stated to X “I am from number.
K Fuck you.” (我冧把嘅，屌你老母) in the heat of the argument. K
The defendant only intended to scare X and the defendant
L L
actually did not have any triad-related background. To the
M defendant’s knowledge, number (冧把) means 14K which is M
N a triad society; N
O O
iv) The defendant went to the market in Sheung
P Wan on 6 and 7 September 2021 for debt collection ; P
Q Q
v) The defendant received $29,000 cash and $1,000
R transfer from Y. R
S S
CRIMINAL RECORD
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A A
B B
10. The defendant has one criminal conviction for “Criminal
C Damage” on 5th February 2007. The defendant was bound over for 12 C
months.
D D
E MITIGATION E
F F
11. The incident occurred on 3 September 2021 at around 1 pm.
G The defendant was helping Mr Fu to collect a long-standing debt owed to G
Mr Fu’s father. Mr Fu brought along the 11 promissory cheques (total
H H
amount being HK$155,500) which X had signed for a loan he had obtained
I from Mr Fu’s father many years ago. As Mr Fu was still holding the I
promissory cheques, this meant the debt X owed to his father was still
J J
unpaid.
K K
12. The assault on X was momentary, sparked by the heat of the
L L
argument. It involved only a single push to the chest, causing X to lose his
M balance and bump into a cabinet. No injuries were sustained. It was also in M
this moment whilst emotions were still high that the defendant said the
N N
words, “I am number. Fuck you. Won’t you repay the money?” in Chinese.
O The defendant and Mr Fu almost immediately left the shop at that time. O
P P
13. Arrangements were then made for X and Y to make payments
Q on the loan. It should be noted that even before any offences that had taken Q
place, X and Y were prepared to repay some amount on the loan but the
R R
terms were not agreed.
S S
14. When the defendant was arrested on 10 September 2021, he
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readily admitted his guilt to the police under caution. Similarly, when he
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A A
B B
provided three VRIs to the police on 11 September 2021, he sincerely and
C fully admitted his responsibility and acknowledged his wrongdoing. In his C
caution statements and VRIs, the defendant unequivocally denied he was a
D D
triad member; he said those words in the heat of the moment only to scare
E X. There is no evidence that the defendant is or has ever been a triad E
member.
F F
G CIRCUMSTANCES OF THE DEFENDANT G
H H
15. From the many letters of support the defendant has obtained,
I it is readily apparent that he is a devoted son and nephew and a person of I
good character. What happened in those few seconds on 3 September 2021
J J
was completely out of character and shocking to those who know him.
K K
16. The defendant has one previous conviction for criminal
L L
damage to property back in February 2007. Defence submitted this
M previous conviction was so dated and unrelated to the present offences that M
the defendant should be treated as a person of clear record and good
N N
character.
O O
17. The defendant was born in Hong Kong on 6 September 1983.
P P
The defendant experienced hardship whilst growing up. In 1995, the
Q family moved to England. His older brother moved earlier and started a Q
business there. However, things did not work out as planned. His parents
R R
moved back to Hong Kong in 1998. The defendant then lived with his
S brother but they had a poor relationship, and his brother would often S
physically beat the defendant. When the defendant could no longer stay
T T
with his brother, he moved out to live with an uncle who had eight children.
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To support himself, the defendant began working in restaurants. He left
C high school after Grade 9 and started to work full-time as a chef in around C
January 1999. He worked in different Chinese restaurants in England.
D D
E 18. In 2011, the defendant’s father passed away. In the following E
year, he decided to return to Hong Kong to look after his mother. Without
F F
a high school diploma, the defendant struggled at first to make a living.
G From 2013 to 2019, he worked as an attendant at a licenced mahjong G
parlour. Then Covid-19 hit and he had to leave his job as the parlour
H H
became inoperable. Since then, he has been unable to hold down a
I permanent position; he has carried out HKTV Mall deliveries, become a I
licenced security guard, worked as a waiter, and finally now is working as
J J
a substitute chef in a cha chaan teng in Kowloon. His monthly income is
K roughly HK$12,000. K
L L
19. The 10 reference letters presented to the court all speak
M emphatically of the defendant’s filial piety and his genuine care and M
concern for others, especially the elderly. In his own letter to the court, the
N N
defendant says he learned a “profound lesson” from this incident. He
O recognises that he committed a “serious offence” and feels “very O
remorseful”. He swears he “will not commit offence again in future”; he
P P
hopes he “can return to society as soon as possible and take good care of
Q [his] parents and family”. Q
R R
SUBMISSIONS ON SENTENCE
S S
20. Defence submitted the present case is a little unusual in that it
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has qualities of two different kinds of blackmail cases commonly seen in
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A A
B B
the courts. The first kind is the protection money demand cases with triad
C overtones. The second kind is the cases involving a demand to repay a debt. C
These latter cases involve a legitimate demand for money but made using
D D
improper means. The first kind of cases involve no legitimate demand,
E being a naked extortion and appropriation of money. For this reason, the E
first kind of cases tend to be more serious than the second. Defence
F F
submitted the present case essentially comes within the second categorially
G but has the elements of triad overtone and use of force typically associated G
with the first kind of case.
H H
I 21. The Court of Appeal’s judgment in HKSAR v Fong King I
Choi4 provides useful guidance for blackmail cases of the first kind, i.e.
J J
protection money demand cases. In these types of cases, the Court noted
K that the following “factors bearing on the gravity of the offence”: - K
L “(1) the nature and amount of the demand; whether the L
demand was for a one-off payment or regular payments; (2)
M M
the nature and circumstances in and by which the demand
was made; whether the offender acted alone or with others;
N N
whether the demand was made on a single occasion or on
O repeated occasions; whether there was actual or threatened O
violence to a person or damage to property; whether there
P was an expressed or implied triad connection; whether it was P
part of a sustained campaign of intimidation against other
Q Q
victims; and (3) the consequences of the demand and the
R effect on the victim; whether the victim yielded to the R
demand for extortion money and whether any loss was
S suffered.” S
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4
[2020] 2 HKC 219
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B B
22. When applied to the circumstances of that case, the Court of
C Appeal held that a 3-year imprisonment starting point was too high and that C
a more appropriate starting point was 21 months’ imprisonment.
D D
E 23. Turning to the blackmail cases of the second kind, defence E
submitted two District Court judgments of relevance. HKSAR v Khan
F F
Amjad (unreported, DCCC3/2012, 13 February 2012, Joseph To DDCJ)
G and HKSAR v Lau Ming Tsun (unreported, DCCC43/2015, 15 April 2015, G
G Lam DCJ).
H H
24. In respect of the present case, defence submitted it is one at
I I
the ‘lower end of the scale’ of culpability for the offence of blackmail. It
J was entirely motivated by a desire to help a friend collect a genuine debt. J
Thus, the present case does not have the aggravating qualities of ‘tor dei’
K K
protection money demand cases. However, physical force was used and a
L claim of being a triad member was made. Also, HK$30,000 was obtained L
from X and Y who paid the amount partly to pay off the loan and partly
M M
out of fear of being hit again. These are the aggravating features of the
N N
present case. Nonetheless, it is submitted these features must be viewed in
O
their proper context, that the force used and claim made were sudden O
actions arising only because there was a heated argument occurring at the
P P
time. Neither the defendant nor Mr Fu set out to use force or threats to
Q collect the loan. The defendant’s confessions to the police a few days later Q
clearly shows his regret and remorse for his actions. With reference to the
R R
authorities cited, defence submitted a starting point sentence of
S approximately 18 months’ imprisonment would be appropriate in the S
present case.
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B B
25. Furthermore, it is submitted the defendant’s timely guilty plea
C and demonstration of genuine remorse warrant the usual one-third discount C
from the starting point sentence. The defendant also respectfully asks the
D D
court to take into account the positive evidence of his good character and
E the real need for him to take care of his elderly mother and aunt. E
Importantly, this will be his first ever experience of imprisonment. It has
F F
been held that as a general rule it is undesirable that a first sentence of
G immediate imprisonment should be very long, disproportionately to the G
gravity of the offence, and imposed for reasons of general deterrence5. In
H H
the present case, the defendant has clearly learned his lesson and it will not
I require a long sentence of imprisonment to deter him from future offending. I
The shame of these offences, having now informed his many family
J J
members and friends, will certainly keep him in check in the future, if not
K for the rest of his life. K
L L
26. Finally, as for totality, defence submitted that the sentences
M for the three offences should be ordered to be served concurrently. It is M
submitted the present case is, in substance, one single transaction of
N N
offences and the defendant should be sentenced accordingly.
O O
27. Background report was obtained and in general it supports the
P P
mitigation submitted. I will not repeat the contents herein. The defendant
Q has never been in prison before. From the mitigation letter he wrote, his Q
current remand has already taught him a great lesson.
R R
S ANALYSIS S
T T
5
R v Curran (1973) 57 Cr App R 948, 947-8 (CA), which has been cited with approval in several Hong
Kong authorities.
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A A
B B
C 28. The offence of common assault carries maximum terms of C
6
imprisonment of one year . The offence of claiming to be a triad member
D D
has maximum terms of imprisonment of three years (for a first conviction) 7.
E The offence of blackmail has a maximum sentence of 14 years E
imprisonment8. There are no tariffs for these types of offences.
F F
G 29. Defence rightly pointed out that the present case has qualities G
of two different kinds of blackmail cases commonly seen in courts. The
H H
first being the protection money demand cases with triad overtones. The
I second is the cases involving a demand to repay a debt. I
J J
30. The two district court authorities submitted by defence
K K
relate to the second type of blackmails. For the first type, I have
L considered the following authorities. In the case of HKSAR v LUI Chun- L
yeung [2014] 2 HKLRD 993, the appellant threatened to collect a
M M
monthly protection fee at $300, if the victim refused to pay, to set her
N salon alight, as had happened to a nearby shop. Demands for protection N
money were considered to be mark of triad activity not least when the
O O
demand was for regular monthly instalments. The Court of Appeal
P considered the appropriate starting point to be 3 years and 3 months’ P
imprisonment.
Q Q
R R
31. The case of HKSAR v WONG Fu-wa & anor[1999] 1 HKC
S 363 concerned two appellants. The first appellant claimed himself to be S
T 6 T
S 40 of the Offences against the Person (Cap 212)
7
S 20(2)(a) of the Societies Ordinance (Cap 151)
8
S 23(3) of the Theft Ordinance (Cap 210)
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A A
B B
the local bully in the district and demanded from the proprietor of a bar a
C sum of $10,000 per month with threats. The second appellant was one of C
the first appellant’s ten or fifteen “brothers” present at the bar on the first
D D
occasion. The second appellant subsequently accompanied the first
E appellant on other occasions when the latter attended the bar. The Court E
of Appeal was with the view that even though the second appellant was
F F
lending support to the first appellant, there should be no disparity in
G sentence and considered a starting point of four years’ imprisonment was G
appropriate. The Court also held that “the sort of threats which were
H H
made either implicitly or explicitly caused fear and disquiet to
I victims. The court must take a serious view of it and demonstrate to I
offenders that this type of activity would not be tolerated.”
J J
K K
32. Both of the above authorities relate to protection money, and
L L
it shows how serious blackmail case with triad element is. I have also
M
considered the authorities submitted by defence, including HKSAR v Fong M
King Choi . However, the starting point of Fong King Choi of 21 months’
9
N N
imprisonment is due to the particular facts of the case, as the defendant in
O that case was drunk, acting alone and asked for $100 only. Also, the staff O
in that convenient store (the victims) were always in control of the situation.
P P
Q 33. Defence also relied on the case of HKSAR v Khan Amjad and Q
HKSAR v Lau Ming Tsun. However, the court noticed that the defendant
R R
in both cases never claimed or hinted that he was a member of triad society.
S In Khan Amjad, paragraph 23, the sentencing judge also said “And most S
importantly, the offences were not linked to triad activities”. Therefore,
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[2020] 2 HKC 219
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A A
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the rather low starting point in these authorities do not include triad
C elements. C
D D
34. In the present case, the defendant was asking for
E HK$155,500.00 from X and Y. The defendant did not come alone, but E
with Mr. Fu. Despite the defendant and Mr. Fu were claiming for a single
F F
loan repayment, the defendant went to Shop 2 twice afterwards to collect
G HK$30,000. At the time of offence, the defendant claimed to be a triad G
member and pushed X on his right chest, causing X to lose balance and
H H
bump his right waist into the cabinet behind. As a result, the victims gave
I HK$30,000 to the defendant. I
J J
35. Defence suggested that the defendant was helping to claim a
K genuine loan, which was a personal loan, rather than loan related to Shop K
1 and 2. Since they had the promissory note with no contradictory evidence,
L L
I accept defence assertion. I also accept this is not a case of protection
M money. M
N N
36. I also accept the defendant did not initially intend to use triad
O
background to collect the debt. From the conversations heard in the video, O
the offence date was not the first time the defendant was there. There is no
P P
evidence to suggest that he claimed to be a member of triad society before.
Q Only afterwards, when X refused to pay, did the defendant say the material Q
words. However, even if the triad membership claim came after X’s
R R
refusal, and it was resulted from the heat of argument, it is still a serious
S offence. Also, pushing against an elderly , X , made the offence worse. S
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A A
B B
37. I do not accept the defendant was provoked. The defendant
C came in with full force to collect money, in an intimidating manner. X C
refused to cooperate under the defendant’s intimidation, I do not think X’s
D D
refusal can amount to provocation.
E E
38. From the video played in court, one can see they were arguing
F F
about the loan, which X, or Y, in particular, was willing to discuss to repay.
G However, the defendant was forcefully arguing, with mention of “我都唔 G
帶人落嚟”, which indicated he could have brought more people along to
H H
intimate X. Given the age of the victims, obviously the defendant was
I I
trying to intimate them.
J J
39. In gist, the defendant came with another person to collect a
K large sum of money, a genuine debt in an intimidating manner from X and K
Y. After X refused to pay, the defendant then claimed to be a triad member
L L
and pushed X. X was 71 years old at the time. The defendant later on
M received $30,000 from the victims. These are all aggravating factors. Even M
if the defendant, as claimed, was not a triad member, no matter how one
N N
looks at it, this is a serious offence. In the circumstances, I am of the view
O immediate imprisonment is the only sentencing option, and the following O
starting points should be adopted:
P P
Q Q
i) Charge 1 – 12 months’ imprisonment;
R R
ii) Charge 2 –3 months’ imprisonment; and
S iii) Charge 3 –2 years and 6 months’ imprisonment. S
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A A
B B
40. Given his timely plea, 1/3 discount is given. He has one
C criminal conviction in 2007, resulted from a minor domestic dispute. He C
had never been in prison prior to the current remand. I have also considered
D D
the mitigation submitted, in particular his good character praised by his
E references. I will give him 1 month, 1 week and 2 months’ discount E
respectively. Therefore, the sentence for each offence is:
F F
G i) Charge 1 – 7 months’ imprisonment; G
ii) Charge 2 –1 month and 3 weeks’ imprisonment;
H H
and
I iii) Charge 3 –18 months’ imprisonment. I
J J
41. I considered the three offences occurred at the same time, and
K are part and parcel of a single transaction. Therefore, I will order that all K
sentences to run concurrently. The defendant is sentenced to a total of 18
L L
months’ imprisonment.
M M
N N
O O
P P
(Colin Wong )
Deputy District Judge
Q Q
R R
S S
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