HKSAR v. Leung Man Chun and Others

DCCC 437/2018

[2018] HKDC 1574

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 437 OF 2018

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Reasons for Sentence of D1

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Charge and facts

1.In the afternoon on the second day of a 5-day trial, D1 indicates a plea of guilty on the 2^nd Charge, one of blackmail.  The matter is adjourned for the parties to edit the facts for his guilty plea.  In the morning on the third day, he pleads guilty and adopts the summary of facts dated the same. 

2.At about 9:45pm on 6^th December 2017, PW1 was playing video game at an Amusement Game Centre at 149B Tung Choi Street, Mongkok, when a group of 5 males (including D1) approached him. They accused PW1 of taking HKD$250,000 settling-in money from another person called “Ho-hin”.

3.At about 01:33pm and 10:11pm on 7^th December 2017, PW2 (PW1’s father) received calls from PW1 who said he was in trouble and needed money. On hearing this, PW2 was worried about the safety of his son as he had not seen him come home since the end of November.

4.On the same evening at around 11:08pm, PW2 received another call from PW1. PW2 then went to Pitt Street, Yau Ma Tei with the intention of meeting PW1. PW1 did not turn up and called PW2 to go to meet him at Jordan instead, however, PW2 did not go.

5.At about 11:58 pm on the same day, PW1 called PW2 again and asked him to meet him at Cheung Fat Estate Bus Terminus, Tsing Yi.

6.PW3 (PW1’s grandfather), also received 2 phone calls from PW1 on 7^th December 2017 asking for money to save him. PW3 later learnt that PW2 (his son) also received similar calls from PW1. Out of concern, PW2 and PW3 went to Cheung Fat Estate Bus Terminus to look for PW1.

7.At about 01:15 am on the 8^th December 2017, PW2 and PW3 went to Cheung Fat Estate Bus Terminus. Upon arrival, they were approached by D1 and 6 males. D1 said to PW2 that PW1 had arranged for a person to traffic dangerous drugs to Australia and since then that person has been arrested, PW1 should pay HK$ 200,000 settling-in money. D1 asked PW2 to pay the money but PW2 refused. Due to seeing so many people appearing, PW2 and PW3 feared for their safety and left. However, PW3 took a photograph of D1 before he left.

8.At 07:16 am on 8^th December 2017, PW3 reported the case to the police.

9.At all material times, D1 conspired together with others to make an unwarranted demand from PW2 to pay HK$200,000 settling-in money on behalf of PW1 to “Ho-hin”.

Mitigation

10.D1 is 39 years of age.  He was a delivery worker at the time of arrest.  He had 5 records in 5 court cases.  They included crimes of violence but no blackmail. His last record was for trafficking in dangerous drugs for which he was sentenced to 44 months’ imprisonment in 2012. 

11.I am informed that he had a stable relationship with his girlfriend, who gave birth to their daughter 7 months ago.  He committed the present offence when she was pregnant in order to provide for the expenditure of childbirth and childcare. 

12.On 6 December 2017, the first day in the offence period, he learned that PW1 had pocketed some “settling-in money” from a person named “Ho-hin” after a failed drug trafficking attempt to Australia.  He was offered $5,000 if he could get PW1 to pay up.  He went with 4 males to the amusement game centre to accuse PW1 of taking the money.  On the second day PW1 was making phone calls to family members to raise the money.  He was aware of these calls.   On the third day he went with 6 males to the bus terminus to intimidate the family members into paying the money to compensate the arrested person in the drug deal.  He spoke for the group. 

Sentencing considerations

13.There are no sentencing guidelines.  Ms. Tsang refers me to 3 cases for comparison of sentences.    The first one is HKSAR v Cheung Man Ing CACC 118/2000. There the defendant in a group of 5 went to a restaurant to demand protection money.  The manager asked for time to consult his boss and took down the defendant’s phone number for future contact.  A meeting was set up by the police for payment 2 days later.  The defendant came alone and demanded $5,000 per month as protection money while claiming to be a triad member before a police officer playing the part of the boss.  He was immediately arrested.  He pleaded guilty to the respective charges of blackmail and claiming to be a triad member.  The Court of Appeal affirmed an overall sentence of 2 years 8 months on a guilty plea. 

14.The second case is HKSAR v Lui Chun Yeung CACC 310/2013.  The defendant there asked the proprietress of a hair salon to go out to have a talk.  He first demanded protection money of $500 per month, then reduced it to $300.  He threatened to set fire to the salon if no payment was made as shown by the example of a nearby shop a few months ago.  She therefore paid him $300.  He later surrendered himself to the police.  The Court of Appeal reduced the starting point (notionally from 3 years 9 months) to 3 years 3 months due to the act of the surrender to the police (in reflecting a non-triad setting).  After a one-third discount, the sentence is further reduced by 3 months due to the act of surrender to the police. 

15.The third case is HKSAR v Chik Chun-bon DCCC 816/2011.  The defendant, with 4 men, demanded protection money of between $70,000 (if paid forthwith) or $100,000 (if paid later) from the foreman overseeing the renovation of a residential property.  The foreman asked for time to talk to someone higher up.  The defendant left him a phone number for contact and warned that if no call was received the renovation could not be done the following day.  The CCTV managed to identify the defendant.  The matter was reported to the police, which set up a meeting but the defendant did not appear.  Regarding it as the lower end of the scale of blackmail, the judge took a starting point of 3 years’ imprisonment. 

16.Ms. Tsang requests me to consider a starting point of 3 years.  She suggests a 25% discount for the late plea on the ground that the trial has barely started and the first witness has not testified for long when the change of plea is indicated by D1. 

Sentencing D1

17.On 6 December 2017, D1 with 4 males, approached PW1 in the amusement game centre to accuse PW1 of taking $250,000 settling-in money from a drug dealer.  On 7 December 2017 PW1 was making various phone calls to family members to raise money to pay it back.  On 8 December 2017 D1 went with 6 males to the bus terminus to demand PW2 and PW3, the father and the grandfather of PW1 respectively, to pay $200,000.  D1 was a dominant player in a group which sought to dun payment for a person arrested for drug trafficking in Australia. He involved himself in the dunning operation between 6 and 8 December 2017. His reward was to be $5,000. 

18.I take a starting point of 3 years 4 months (or 40 months).   

19.On the extent of discount for the late plea, the Court of Appeal has stated in HKSAR v Ngo Van Nam [2016] 5 HKC 231 that, subject to the overriding discretion of the judge, a 20% discount is usually appropriate for a defendant pleading guilty on the first day of trial.  I regard it appropriate to give D1 a 20% discount, ie 8 months. 

20.The birth of the child shall have brought joy to the family but D1 has to be jailed in retribution for his crime.  D1 will have to keep a family of three with love and responsibility when he is released.   This is a child that brings blessing to the family, now translated into a reduction of 2 months in the sentence.     

21.The sentence is 30 months.