HKSAR v. Kwan Kam Seng

DCCC 174/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 174 OF 2017

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REASONS FOR SENTENCE

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1.The defendant was charged with one count of blackmail contrary to section 23(1) and (3) of the Theft Ordinance, and one count of claiming to be member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151.

2.The defendant pleaded guilty and admitted the facts.  He was convicted accordingly.

Summary of facts

3.X was the project manager of Hang Cheong Engineering Company, the contractor responsible for the building renovation project at Lung Teck Mansion and Po Teck Mansion.  The renovation work was between July 2016 and January 2017.  The name and telephone number of X and several others staffs of the contractor were posted up at the aforesaid building lobbies.  Since October 2016, X had been receiving calls for “protection fees”.

4.On 1 December 2016, at around 4:15 pm, X received a phone call (caller number: 6886 6437) from a man, who called him before on 22 October 2016 for “protection fee”.  That male claiming to be “Mr Lee” requested X to pay “protection fee” for their scaffolding at the site of Lung Teck Mansion and stated that the more they paid, the more protection they would get. 

5.Later on the same day at around 6:41 pm, X received a call from 6886 6437 again and “Mr Lee” requested for a “protection fee” in the sum of $30,000 to 50,000 as a one-off payment.  Between 7:13 pm and 7:28 pm, X and “Mr Lee” had several bargains over the phone and eventually agreed on to make a payment of $28,000 at Sai Yee Street Park area.

6.Time being X had reported the matter to the Police and the matter was under Police surveillance thereafter.  At around 8:58 pm, X arrived New To Yuen Restaurant (New To Yuen) with a police officer DPC 54573.  At around 9:00 pm, X called “Mr Lee” and asked him to meet up at New To Yuen.  At around 9:11 pm “Mr Lee” called X to confirm his sitting location.

7.Two minutes later, two teenagers, attended the restaurant and after confirming the identity of X, they took the opposite seats on the same table.  One of the teenagers passed his mobile phone to X and in the phone, “Mr Lee” said he was coming over.

8.At around 9:31 pm, X received phone call from “Mr Lee” requesting X to go outside to talk to him alone.  X complied and met the defendant outside.  After confirming the identity of X, the defendant admitted he was the “Mr Lee” who contacted him before.  Upon X request, the defendant instructed someone to call X by 6886 6437.  X also recognized the defendant’s voice as the same as that of the “Mr Lee”.

9.The defendant told X that he was a member of a triad society – “Sun Yee On”, Tsim Sha Tsui faction, and he was a follower of “Fei Jai” and “Tai Chuen”.  The defendant claimed that he was well-known in Tsim Sha Tsui.

10.The defendant promised X that after he paid the money, no one would cause trouble at the working site.  If any person caused any trouble thereat, X could call him at 5539 6368.  X used his mobile phone to dial 5539 6368 and the defendant’s iPhone rang immediately.

11.The defendant then told X to pass the money to the two teenagers inside the restaurant.  X went inside the restaurant and pass an envelope to one of the two teenagers.  The defendant was arrested thereafter.   

Mitigation

12.The defendant aged 21, born in Macao but moved to Hong Kong since the age of 7 and has obtained HKID.  He received education up to Form 3, he was unemployed with last employment as a transportation worker.  He used to live with his family in a public housing, and he lived with the father after the parents separated.  The defendant committed the crime because the father sustained an injury during work and lost his job.  He was arrested in December 2016 and was remanded since then. 

13.The defendant had one previous conviction with two counts and was put on probation for 18 months in November 2014, because of his breach of probation order, the order was extended for a further 6 months.  The extended Probation order had only expired for less than a month at the time the defendant committed the present offence.

14.In view of his age, a Detention Center Report was called for my consideration.  The report stated that the defendant was medically unfit for detention in a Detention Centre because of poor exercise tolerance.  The defendant was unsuitable for detention in a Detention Centre.

15.It transpired from the report that the defendant had affiliation with two triad societies.  He had addiction on drugs, he was arranged two residential drug treatment programme by his probation officer. However, he relapsed to Ketamine, “Ice” and cannabis after the extended probation order expired in November 2016 and he also remained idle since then.

16.It also transpired from the report that the defendant had a fair relationship with his family.  The father was interviewed and showed his concern towards the defendant.  The father indicated that the defendant was highly susceptible to his baneful peers, while he believed the defendant was remorseful for his misbehaviour.  The father hoped the defendant would secure a stable job and establish a well-regulated life in the future.

17.On the other hand, in the course of interview, the defendant showed little sense of remorse and did not have any concrete plan for his future rehabilitation.  The defendant wished to be sentenced to imprisonment instead of receiving disciplinary training in a Detention Centre.

Sentence

18.Mr Boyton representing the defendant submitted two authorities with similar factual background for my consideration.

19.In the case of HKSAR v LUI Chun-yeung [2014] 2 HKLRDE 993, the appellant threatened to collect a monthly protection fee at $300, if the victim refused to pay, to set her salon alight, as had happened to a nearby shop.  Demands for protection money were considered to be mark of triad activity not least when, as here, the demand was for regular monthly instalments.  The Court of Appeal considered the appropriate starting point to be 3 years and 3 months.

20.The case of HKSAR v WONG Fu-wa & anor[199] 1 HKC 363 concerned the two appellants.  The first appellant claimed himself to be the local bully in the district and demanded from the proprietor of a bar a sum of $10,000 per month with threats.  The second appellant was one of the first appellant’s ten or fifteen “brothers” present at the bar on the first occasion.  The second appellant subsequently accompanied the first appellant on other occasions when the latter attended the bar.  The Court of Appeal was with the view that even though the second appellant was lending support to the first appellant, there should be no disparity in sentence and considered a starting point of four years’ imprisonment was appropriate.  The Court also held that “the sort of threats which were made either implicitly or explicitly caused fear and disquiet to victims.  The court must take a serious view of it and demonstrate to offenders that this type of activity would not be tolerate.

21.The present case is also a typical triad related extortion exercise.  This was an premediated crime.  There were implicit threats made by saying to the victim more the money they paid, the more protection they would get and by claiming to be a member of triad society.  Two teenagers (aged 14 and 16 respectively) were arranged to meet and verify the identity of the victim and to collect the money from the victim in due course. The using of young persons in this extortion exercise made the case more serious.  I consider the appropriate starting point for charge 1 should be 3.5 years, while that for charge 2 to be one of 12 months’ imprisonment.

22.The defendant has been remanded since his arrest in December 2016.  With his background and character, I am not optimistic to his rehabilitation, I would have considered a Detention Centre Order should he medically fit for it.  However, he was unsuitable for detention in a detention center on medical ground.  The defendant indicated his plea before the case was set down for trial, he would be given 1/3 discount for that, and a further deduction of 2 months would be given for his age.

23.I do not consider there to be any mitigating factor that would call for further deduction.  However, having consider the overall criminality, I order the sentence of both charges to run concurrently, making a total of 26 months.   

Order

24.Charge 1   sentenced to 26 months’ imprisonment;

Charge 2 sentenced to 6 months’ imprisonment, concurrent to charge 1,

making a total of 26 months’ imprisonment.