HKSAR v. Chow Man Lung

DCCC 473/2018

[2018] HKDC 1306

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 473 OF 2018

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Reasons for Sentence

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1.The Defendant has pleaded guilty to a total of four charges of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap.210.

2.He admits the Summary of Facts put to him in court.  In gist, this case concerns a restaurant in Ngau Tau Kok Road in Kowloon Bay (“the Restaurant”) and two victims who were the managers of it were involved.  They are Madam X, the night shift manager of the Restaurant and Mr Y, the day shift manager of the Restaurant.

Charge 1

3.D appeared at the Restaurant at around 7:52 p.m. on 25 March 2018.  D approached Madam X and asked whether they had paid any protection fee, and they were required to do so - in his words, “你哋俾咗陀地費未、要俾陀地費”.  D left after leaving his name and contact number to Madam X.

4.D then returned about 3 hours later and made to Madam X a reference to collecting protection fee along Ngau Tau Kok Road, including another restaurant. 

Charge 2

5.At around 10:58 a.m. on 26 March 2018, D went to the Restaurant again and this time he approached Mr Y.  D told Mr Y that he came to collect protection fee, and if the Restaurant did not pay the protection fee, he would instruct some youngsters going to the Restaurant, claiming to know someone, and ordering drinks.  When Mr Y asked about the amount of protection fee, D replied that $50,000- a year.  Similarly, D mentioned his name and a telephone number before leaving the Restaurant.

Charge 3

6.There was a discussion between Madam X and Mr Y and as a result, the Police were notified.  On the other hand, when Madam X reported the matter to their boss, the boss directed Madam X to give D $3,000 red packet.

7.At around 11:33 p.m. on 26 March 2018, D went to the Restaurant again, and approached Madam X, asking for the reply from her boss relating to the protection fee.  Madam X then led D out of the Restaurant, and stated that $50,000-HKD was too much, and offered to give D $3,000 red packet instead.  D refused and remarked that $3,000 was not sufficient.  D affirmed that he must receive the full amount of $50,000.  When PW1 replied that she needed to consult her boss, D then left.

Charge 4

8.At around 4:35 p.m. on 27 March 2018, D went to the Restaurant again.  Madam X told D that the protection fee was not affordable.  Thereafter, D suggested a monthly protection fee of $4,000 instead.  In his words he said “我哋喺收陀地費啊，如果一次過每年港幣$50,000太貴，咁你哋冰室每月俾港幣$4,000陀地啦”.  Madam X replied that she needed to consult her boss and then D left.  D returned later on the same day to urge Madam X giving a reply.

The Arrest

9.A police operation was mounted.  D went to the Restaurant again at around 3:46 p.m. on 28 March 2018 and approached Madam X.  Subsequent to that, he was arrested nearby when a team of police officers were conducting surveillance inside and outside the Restaurant.  Under caution, D denied having asked anyone for money.  In a video-recorded cautioned interview, D admitted, however, that he went to a restaurant which had a name with the word “Hei” (“喜”), and talked with a manager of the said restaurant.  Moreover, he knew that “收陀地” meant triad society collecting red packets, and the said manager believed that he was a member of a triad society.  Furthermore, he was a member of a triad society known as “No. 14”.

Madam Z’s Mobile Phone Video Record

10.Madam Z was a waitress of the Restaurant.  When she was working in the Restaurant at around 11:00 a.m. on 26 March 2018, she saw D entered the Restaurant and heard him telling Mr Y that D came to collect protection fee.  Thereafter, Z secretly recorded a video which contains the conversation between D and Mr Y with her mobile phone.   The said video clips reveal, inter alia, that:

a) D asked Mr Y whether he had “worshipped the landlord” (“問你拜咗地主未”), and it was the way of old village;

b) When Mr Y asked D if other shops had also paid the protection fee. D replied that all had paid, and a restaurant must pay them;

c) Thereafter, D told Mr Y that if Mr Y did not pay, he might call someone to eat over there. Mr Y would have trouble to sign something. Each of them would announce their names, claiming to know someone, ordering a drink (“你唔比我，驚嗌啲人嚟食野，你淨係簽咩都簽死你，個個又話篤個鼻又話噏個名又話飲杯野”);

d) Afterwards, D also told Mr Y that if he came there when he was 15 years old, Mr Y would have trouble if Mr Y replied like that (“如果我十五歲入黎先果啲呢，你咁樣同佢講野，你出咗事哪我話比你聽”); and

e) When Mr Y asked D about the amount of protection fee, D replied $50,000 a year.

Triad Expert

11.According to the triad expert of the Police, “worship the landlord「拜地主」” and “collect protection fee 「收陀地」” are terms commonly used by triad members to blackmail others.

12.It is admitted by D that at the material times and places as stated above, with a view to gain for himself or another or with intent to cause loss to another, D made unwarranted demands to Madam X and Mr Y with menaces.

Mitigation

13.D is now 44. He has aged parents and 2 younger brothers and 1 younger sister.  He got into trouble since 18 of age when he met his so-called “Elder Brother” in around 1992.  From his criminal record, one can see that he had been incarcerated on quite a number of occasions, ranging from a Training Centre when he was still very young, to a significant term of imprisonment for Trafficking in a Dangerous Drug. 

14.This Court is told that after his last release from jail in 2009, the Defendant had become a transportation worker.  He gained certain self-recognition for having stayed in the same job for years despite his lack of good education.  He also managed to obtain a taxi driving licence in 2013 and ever since he worked as a taxi driver.  However, his driving licence was suspended at the material time owing to the accumulation of deduction of points under the relevant system.  It is submitted that D became quite lost as he would only be able to get back his licence until May 2018.  Apparently, this had certain impact on his income and generally perhaps his life.

15.D is eager to resume his driving career and seemingly he is ready to turn a new leaf despite his long history of offending.  This determination is evident in a hand written letter from D.

Consideration

16.Blackmail is a serious offence. It carries a maximum sentence of 14 years.

17.It was noted in the case of HKSAR v Lui Chun Yeung [2014] 2 HKLRD 993 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.” (at para.7) In that case, the demand involved was a sum of $300.  The Court of Appeal also remarked that “demands for protection money are the mark of triad activity not least when, as in this case, the demand was not just for a one-off payment but for regular monthly instalments; and in addition, there was the threat of serious violence to the property.  It little avails a defendant who makes demands of this character to say that he is not in fact a triad, when the circumstances of the offence convey those hallmarks.” (see para.6)

18.In the present case, I accept the Defendant had acted alone albeit that he had made verbal reference to “instructing youngsters” to cause trouble when he was talking to Mr Y. 

19.It remains a serious case however.  There are two victims in this case and the sum of protection money D demanded is not insignificant.  The overall sentence should reflect the nature that it is a series of demands made on consecutive days and one can see the stress and anxiety Madam X and Mr Y might have had experienced.

20.Whilst D would not be punished for his previous convictions, he is not entitled to the leniency that a first offender would or might receive. 

21.Mr Ng for the Defence has helpfully referred this Court to a number of case authorities.  In HKSAR v Wong Fu Wa & Anor [1999] 1 HKC 363, the 1^st Applicant claimed he belonged to the 14K and 10 or 15 other males came into the bar apparently to show support to the applicant.  It was argued by reference to the case of R v Chan Wing Cheong Crim App 98/1997, unreported that a 3-year starting point was appropriate.  The Court of Appeal took a 4-year starting point and remarked that “What is however very clear is that this type of offence is still quite prevalent.  There can be no doubt that a serious view has to be taken of it.  The sort of threats which are made either implicitly or explicitly cause fear and disquiet to victims”.  (See 365D-E)

22.We do not have the relevant statistics in the present case.  There is also no tariff.  In my judgment, the fact remains that this sort of offence is serious and a deterrent sentence is necessary.    

23.Having considered carefully, I am of the view that a starting point of 3-year-and-6-month is appropriate for each of the charges.  The offences in Charges 2 and 3 took place on the same day but the demands were made upon different victim on different occasions and I do not see fit to make the sentences for these charges totally concurrent.

24.D is entitled to the 1/3 discount and I do not see any further deduction of sentence appropriate or available in this case.  A 42-month starting point is reduced to 28 months’ imprisonment for each of the charges.

25.Taking into account all the circumstances in this case and the totality principle, I shall pass the following sentences on D.

26.D is sentenced to 28 months’ imprisonment for Charge 1.  I will make 2 months in each of the other charges consecutive to each other and to Charge 1, i.e. 28+2+2+2.  Therefore, D is sentenced to a total of 34 months’ imprisonment.