HKSAR v. Yau Shun Shing

DCCC 719/2017

[2018] HKDC 272

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 719 OF 2017

----------------------------

----------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.Defendant was convicted on his own plea to a charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210.

2.According to the agreed summary of facts, PW1, a vegetable stall operator, came to know the defendant, a driver, in the year 2010. They later became business partners and operated a stall in the wholesale market.  Although the business operated at a loss, PW1 did not recover half of the loss from the defendant.  After PW1 resigned from the partnership, the defendant took over the operation.  There was no official transfer of the ownership of the business and the bank account was still under the name of PW1. 

3.On 27 February 2015, PW1 and defendant went to a bank.  Defendant told PW1 that when he visited his godfather, a man showed a photo of PW1’s son, aged 21, in the man’s mobile phone.  The said man alleged that PW1’s son was talkative and arrogant.  Three men said they would pay HK$20,000 to have PW1’s son beaten up on 5 March 2015. Feeling scared, PW1 did not disclose the matter to anyone.

4.On 3 March 2015, defendant again phoned PW1 with his mobile phone and asked PW1 what she planned to do about the matter.  PW1 could not decide and asked defendant what she ought to do.  Defendant said she could settle the matter by paying money, otherwise, her son would be beaten up until he had to use a wheelchair.  PW1 was terrified and did not dare to disclose the matter to anyone else.

5.Again on 5 March 2015, defendant visited PW1 and asked PW1 what she had planned to do about the matter, whether she planned to pay money or let her son be beaten up until he required a wheelchair.  PW1 said she needed time to consider and to discuss with her husband.  Defendant told PW1 not to let her husband know and to give him her reply by 3 pm on the same day.  PW1 was terrified and disclosed the matter to the husband.

6.At around 2.30 on the same day, PW1 rang defendant and asked defendant how much money would be required to settle the matter.  Defendant later called back and said HK$15,000 was required to ensure her son’s safety and no one would beat up her son.  He asked that HK$10,000 be paid into a designated bank account within half an hour and the balance HK$5,000 be paid in a red packet for collection later.  The case was reported to police and the money was never paid by PW1.

7.It was agreed that before the incident, PW1 had a good relationship with the defendant.  She treated the defendant as her younger brother and defendant treated her like an elder sister.  PW1 had been lending hundreds of dollars to defendant every few months and defendant never repaid.  There was no dispute between them prior to the incident, PW1 never demanded half of the loss from the operation of the business from the defendant as well.

8.Under caution, defendant said that he did so because he was in need of money.  He admitted under caution at subsequent interview that, he owed some money, therefore he made up the story that someone wanted to beat up PW1’s son to blackmail PW1 for money.

9.Subsequent to the arrest of the defendant, he was granted police bail.  He failed to report to police on 12 June 2015 and was put on the wanted list.  On 24 July 2017, he was stopped by police and his wanted status was revealed and he was arrested.

10.Defendant had three previous convictions, none similar, all relating to violence. 

11.Mr Tang speaking on behalf of the defendant said defendant is a man aged 46.  He is single and worked as a construction site worker from mid-2015 to the time of arrest in July 2017. 

12.Mr Tang said this case does not involve triad.  Although the agreed facts of the case mention the background of a godfather and several men in the setting, I am not going to consider that against the defendant. 

13.In this case, no actual violence was used, the sum involved is not a large sum and PW1 did not actually suffer any financial loss.

14.Mr Tang further said that defendant had committed the offence as he had an outstanding gambling debt and because he understood  the husband of PW1 had previously been supplying goods to the partnership business at unreasonably high costs. The defendant committed the present offence partly to revenge. 

15.The defendant also tendered court the letter written by himself, saying that he had turned to Buddhism since his remand and regret what he had done and vowed to turn a new leaf.

16.Blackmail is a very serious offence as is reflected by the fact that the maximum sentence is 14 years of imprisonment.  In R v Hadjou [1989] 11 Cr App R 29, it was said that blackmail was one of the most serious offences in the calendar of offences with deterrence as perhaps the most important part of the sentence coming just after the question of punishment. 

17.In the case of The Queen v Lau See Kau, CACC 573 of 1995, it was held that sentences of very much longer than 3 years are often appropriate. 

18.In the case of HKSAR v Tam Yun Chuen [2009] HKCU 1357, the Court of Appeal held for triad-related blackmail, a sentence of 4 years after trial was appropriate.

19.In this case, at the material times, PW1 and defendant were very good friends.  Yet defendant had manipulated PW1 and exploited this relationship, threatening the mother with the safety of her son.  The threat was very serious, being an attack on the son to the extent that the injuries would make him confined to wheelchair. Although actual violence was not used in conveying the threatening message, yet the story told by the defendant was such that several men would assault PW1’s son.  This had actually led PW1 to fear for her son. 

20.I note the sum involved is not substantial and no actual loss was suffered.  In carrying out this blackmail, the defendant had approached PW1 on three occasions, asking her not to disclose the matter to any third party, including the husband.

21.There is no tariff for sentencing blackmail charges. 

22.The defendant had no previous similar convictions in the past.  For the purpose of sentencing in this case, the court will treat him as a first offender.

23.I will consider all said on defendant’s behalf but suffice it to say apart from the guilty plea, for which the defence counsel urges this court to give defendant one-third discount in sentencing, the other mitigation does not carry much weight. 

24.There are no other valid mitigating factors apart from the plea of guilty.  When the defendant was on police bail, he failed to report to police and he was re-arrested after two years when he was stopped by police in street.

25.In HKSAR v Lam King Yin, CACC 328 of 2012, Lunn JA (as he then was) said that for cases where the defendant had absconded before he finally pleaded guilty subsequent to his re‑arrest, the range of reduced discount varied between one‑sixth and 27 per cent.  Again, as the judge noted, the justification for that approach in principle was addressed by Yeung JA (as he then was) in the judgment of Court of Appeal in the case of Ko Chun Hung, CACC 71 of 2007 which was cited to me earlier:

“By absconding, the applicant also rendered the administration of justice more costly and time-consuming and the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise obtain.”

26.It was also quoted in this case that, as Keith J (as he then was) noted in the judgment of Court of Appeal in HKSAR v Poon Chum Kong CACC 228 of 1998, the consequence of a defendant absconding in such circumstances is that: “His plea of guilty was, in the circumstances, a late plea.”  In that case, the delay was over one year, and the Court of Appeal upheld the reduced discount of 20 per cent.

27.In the circumstances of the present case, I consider giving the defendant sentencing discount of 25 per cent appropriate.  In this case, considering what was being said on behalf of the defendant, the circumstances of the commission of the offence, I consider the appropriate sentencing starting point is 3 years 4 months.  After taking into account of the sentencing discount of 25 per cent, the defendant is therefore sentenced to 2 years and 6 months’ imprisonment.