HKSAR v. Cheung Hon Lai

DCCC 83/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 83 OF 2017

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REASONS FOR SENTENCE

The defendant faces a charge of "Blackmail" (Charge 1) and a charge of "Criminal intimidation" (Charge 2). He pleaded guilty to Charge 1. The prosecution applied to leave Charge 2 in the court file; not to be proceeded against him without leave of court. I granted the application.

Summary of Facts

2.Mr. CHAN (PW1) was the proprietor of a joss stick shop situated at the address particularized in Charge 1 ("the Shop").

3.About 6:30 p.m. on 25 June 2016, the Shop was still open for business.  A male (subsequently confirmed to be the defendant) came into the Shop and walked up to the cashier counter.  He demanded PW1 to give him "Lai See" and protection fees.  PW1 was scared and shouted at the defendant telling him to leave the Shop.

4.As the defendant was leaving, PW1 was afraid that he would return to cause trouble.  PW1 therefore grabbed the defendant's arm and told him that he would call the Police.  The defendant tried to push off PW1 but failed.  During the struggle, the defendant grabbed a cutter from the cashier counter and waved it at PW1.  PW1 then twisted the defendant's arm and he dropped the cutter.  The defendant continued to resist and grabbed a hammer from underneath the cashier counter.  PW1 twisted the defendant's arm again and he dropped the hammer.  PW1 finally subdued the defendant and called the Police.

5.The Police soon arrived at the Shop and arrested the defendant.  Under caution, he remained silent.

6.PW1 did not sustain any injury and no damage was caused to the Shop.  Only PW1's shirt was torn during the struggle with the defendant.

Mitigation & Sentence

7.The defendant is 70 and single.  He has 39 conviction records, which included 4 offences of "Blackmail" (3 dated 1996 and 1 dated 2003) and multiple drug-related offences (mainly "simple possession").  His most recent conviction was "Possession of an obscene article for the purpose of publication", for which he was sentenced to 8 months' imprisonment in 2011.  His conviction history is typical of a long-term drug addict.

8.In mitigation, defence counsel Ms. LAI submitted that the defendant started his drug habit at the age of 22.  Part of his stomach was removed in 1996.  Recently, he was found having a right upper lobe nodule in his lungs. He has difficulty walking and is unable to work.  He relies on social welfare.  Ms. LAI further submitted that the defendant foolishly committed the present offence because he was in need of money.  When he made his demand, he did not claim to be triad member.  He was leaving the Shop when his demand for money was unsuccessful.  The defendant had no intention to hurt PW1.  He merely grabbed what he could to ward off PW1's restraint.  Fortunately, PW1 did not suffer any injury.

9.Lugar-Mawson J in HKSAR v AU Wing Yat HCMA 891/2004 held "However it is committed, blackmail is a serious offence.  The circumstances of its commission, however, can vary widely and the sentence to be imposed upon the offender depends very much on the particular facts of the case." [1]

10.In the present case, I accept that the defendant's physical appearance was unlikely to have posed a serious threat to PW1.  Given his age and physical condition, it also doubtful as to his actual ability to cause serious harm to PW1 or damage to the Shop. What he did was sad and pathetic.  It was plainly a feeble and desperate attempt to obtain money to feed his drug habit.  I am also aware that the defendant did not ask PW1 for a specific sum and that a one-off demand rather than a demand for regular payment of protection fees was made.

11.I adopt a starting point of 2 years' imprisonment for Charge 1.  With the indication of a guilty plea before trial, I grant a 25% discount, reducing the sentence to 18 months[2]. Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 18 months' imprisonment.

12.The court can only do so much in deterring an offender with a long history of convictions (of various types of offence) by way of a heavy penalty.  Whilst the sentence must carry a deterrent effect, it cannot go out of proportion.  I accept that there are limits in our penal system.  If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.