HKSAR v. Li Da and Another

DCCC 1075/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1075 OF 2016

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Reasons for Sentence

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Charge

1.D1 and D2 plead guilty to a charge of blackmail in the course of trial. 

Facts

2.Pursuant to their pleas of guilty, a Summary of Facts dated 24/5/2017 was put to and agreed by them. 

3.In the afternoon on 7/11/2015, proprietor X of a new fishing supplies store was not in the store.  Storekeeper Y there was approached by D2 to seek out X.  D2 left the store after leaving Y a note stating the mobile phone number of one “Ah Ming” for X to contact.  Soon the store’s phone got a phone call from that mobile phone number.  The caller said, “If your boss is not going to find me, your shop would not be able to open for business.”  Y gave the caller the mobile phone number of X.  Y believed it was related to protection money and someone would disturb the business if the money was not paid. 

4.X received a call from D2’s mobile phone number.  The caller told X that X had opened the store without greeting the local gods.  X asked the caller to come to the store later on the same day to sort out the matter.  X believed that “not greeting the local gods” meant he had not paid protection money to the Tor Dei.

5.At 8 pm, X returned to the store to set up his mobile phone for audio and video recording to capture the meeting to take place between him and the people of the caller.

6.At 8:12 pm, the store’s phone rang.  X asked the caller to come to the store to discuss the matter. 

7.Within 10 seconds, D1 and D2 entered the store.  D1 demanded X to pay them $5,000 per month.  D1 indicated to X that Ah Ming was D2.  D1 told X that every shop in that area was paying the money to them and if other groups asked for the money, X should find D1 to take care of it.  X asked for time to consider their demand.  X understood that they were demanding protection money.  He felt threatened to pay them so as to continue with his business. 

8.On 9/11/2015, D2 rang X’s phone to ask when X would pay.  X pretended to have to negotiate for a rent reduction with the landlord.  D2 said he would call X the following day.  In fear of the safety of himself and Y and the store, X reported the matter to the police.

9.On 16/11/2015, the police arrested D1 and D2. 

10.Phone call records confirmed the contacts of D1, D2, X, and the store, as the case may be.  

11.CCTV footages of the store confirmed the encounters of D1, D2, X, and Y, as the case may be.

12.Audio and video clips from X’s mobile phone confirmed the encounter of D1, D2, and X in the store. 

Juncture of guilty pleas tendered

13.The trial was scheduled for 3 days.  Y had finished his evidence.  X was still giving evidence-in-chief at near mid-noon on Day 2 when defence counsel for D1 and D2 asked for pleas to be re-taken.  D1 and D2 then pleaded guilty to the charge.

14.X’s evidence was most pivotal to the prosecution case. 

Personal background and mitigation

15.According to his Background Report, D1 is 22 years of age, of F. 1 education level.  He last worked as a kitchen worker.  His father had left home upon divorce long ago, present whereabouts unknown.  He lived with his mother, also a kitchen worker. She suffered from thyroid disorder.  He took care of her.  He had a record for assault occasioning actual bodily harm.  He was put on 12 months’ probation. 

16.Possible owing to some misunderstanding on his part, D2 has not provided any information for a Background Report I order of him.  According to his antecedents statement, he is 26 years of age, of F. 3 education level.  He has a clear record. 

17.Counsel for D1 and D2 both accept that D1 and D2 were equally culpable in the offence although their roles somewhat differed. 

Sentencing considerations

18.There are no sentencing guidelines.  Some assistance may be had from similar cases but most cases involved triad elements. 

19.A comparable one is HKSAR v Lui Chun-yeung [2014] HKCA 152.  There the defendant made a single visit to a salon to demand the proprietress to pay a protection fee of $500 per month to avoid someone setting fire to her premises like what happened to a shop nearby a few months ago.  She bargained it down to $300 per month and paid $300 forthwith.  She then made a report to the police.  On the following day, a caller claiming to be the defendant’s friend asked her not to pursue the matter with the police, she ignored the caller.  The defendant surrendered himself to the police 4 days later.  The Court of Appeal reduced the starting point from 4 years to 3 years 3 months.  The defendant was to be given one-third discount for the plea of guilty and an extra 3 months off for his surrender to the police. 

20.Stock VP had this to say:

7. …[T]the present case can be distinguished from others in which similar starting points have been adopted in that the demands in many of the other cases are made by or in the presence of a group of thugs, a fact which is intended to give greater weight to the threat; the sums demanded tend to be significantly greater than in this case; and there are often repeat visits. None of this is to suggest that this offence was not in itself serious; the nature of the threat was indeed serious particularly by reference to an earlier fire in the neighbourhood but nonetheless it is different from the several cases to which we were referred where starting points in the region of four years were adopted. (My emphasis)

Sentencing D1 and D2

21.There were 2 people demanding X to pay $5,000 per month, which was a substantial regular payment, as protection money.  The threat not to allow X in business was not uttered in a fierce manner but in my view it did not have to be fierce to be effective.  The presence of two males in their prime years at a small shop with often a single staff member in attendance was more than sufficient to give full adverse expression to what might go amiss.  It did not take much imagination to assign to the demand a concern for the safety of oneself, one’s colleague, and one’s business as X did, whereupon he made a report to the police.  

22.D1 and D2 are equally culpable.  They divided labour complementary to each other.  I regard them no less culpable than Lui Chun-yeung (above) as there were two of them and they demanded even a much larger sum than that single offender, albeit not yet receiving any payment when arrested.  I take a starting point of 3 years 3 months (or 39 months). 

23.The suggestion by the Court of Appeal in HKSAR v Ngo Van Nam [2016] HKCA 396 is a 20% discount for a plea of guilty before evidence is called on the first day of trial.  D1 and D2 are to be given a near 18% discount (ie 7 months) for their pleas of guilty tendered before X finished evidence-in-chief.  There are no other mitigating factors.  Each gets 32 months.