HKSAR v. Fong King Choi

DCCC 90/2018

[2018] HKDC 1343

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 90 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of blackmail. 

2.At all material times, the 7-Eleven Convenience Store situated at Shop A, Ground Floor, Tung Lok Building, Nos. 34-36 Nullah Road, Mong Kok, Kowloon (the "Store") opened 24 hours a day.

3.On 30th October 2017 at around 6:19am, the Defendant entered the Store, jumped the queue at the cashier and said to a staff member on duty "Collecting protection money" for 3 times as he knocked on the cashier table.  The staff then called for help.

4.PW1 (X) was the female manager of the Store on duty.  She arrived at the cashier and the Defendant knocked on the cashier table and asked for protection money. X asked what protection money it was about and the Defendant said he was of the region and he was there to collect protection money.  The Defendant asked her for 3 times if she would pay protection money as he knocked on the cashier table and pointed at her.  The Defendant asked if X would give him HK$100 and after she said she was not in charge of things, the Defendant pointed at her, raised his voice and said "That means you are not paying, isn't it? Are you not paying?" 

5.The Defendant briefly left the Store, shouted out loudly and kicked something on the street outside the Store.  All of these happened whilst there were other customers in the Store.

6.The Defendant then walked back into the Store and asked if she called the police. She denied and the Defendant shouted out loudly in foul languages, “You don't know me? I am called Fei Choi.  Shall I come back another time?"  She remained silent and the Defendant shouted at her.

7.At about 6:21am, the Defendant knocked on the cashier table with two cans of beer and walked off the Store with them while saying to X, “Come. I am tor-dei." and swore at her.  She walked after the Defendant and repeatedly asked him for payment.  The Defendant eventually dropped cash of HK$20 for the beer of HK$12.9. The Defendant walked away from the Store and shouted at her in foul languages.

8.Soon after, the Defendant walked near the Store and said to her, "Do you want me to call my friends over?"  She and her colleagues ignored the Defendant as the Defendant walked off and talked to a man outside the Store. 

9.At about 6:24am, the Defendant walked near the Store again and shouted at her in foul languages, “Who do you follow? I asked you who you follow”, then kept on shouting at her with abusive words. The Defendant continued shouting at her with other things even as other new customers came into the Store. The Defendant then walked away at about 6:25am and kept shouting every now and then outside the Store.

10.At around 6:28am, PW2, who was a police constable, arrived at the Store with his teammate. PW1 identified the Defendant to PW2, who intercepted and arrested the Defendant. The Store's CCTV captured the course of the incident.

11.The Defendant with a view to gain for himself or another or with intent to cause loss to another, made an unwarranted demand of HK$100 from X with menaces.

Mitigation

12.The Defendant is 36 years of age, of secondary education level.  He had several criminal convictions but none relating to blackmail.  He was a casual renovation worker.  I am told that he had consumed a lot of alcohol due to certain discord with his girlfriend before the offence.

13.It is pointed out in mitigation that there was no actual violence or threat of violence, and he acted alone without property damage.  I note that it was a demand for one-off payment of a small sum of money.  He only visited the Store on a single day.  Compared to the case of HKSAR v Wong Yin-chak CACC 126/2004 where the defendant made the demand for protection money in the sum of $1,000 with an accomplice from a newspaper stall and splashed soft drinks over the victim’s stock, our present case is less serious.  (It should also be observed that the case was 14 years old with such sum of $1,000 demanded whilst here only $100 is demanded.)  The defendant and the accomplice returned to the stall 2 days afterwards and reiterated the demand, resulting in another charge of blackmail.  The Court of Appeal regarded an overall starting point of 3 years appropriate.  It commented that the usual starting point of 3 years would be called for where no aggravating features such as triad affiliation, violence, or demand for regular payment or of large amount, were present.

Sentencing the Defendant

14.I take 2 years 6 months as the starting point.  After the one-third discount for his timely plea of guilty, the sentence is 20 months.