HKSAR v. Tsang Fuk Wing and Another

DCCC 354/2020

[2021] HKDC 421

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 354 OF 2020

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REASONS FOR SENTENCE

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1.The defendants stand convicted after trial of one charge of blackmailing X, contrary to section 23(1) and (3) of the Theft Ordinance[1].

2.Full particulars of the offence are set out in my reasons for verdict handed down on 29 March 2021.  In summary between 11 May 2019 and 22 May 2019 the defendants blackmailed Mr X on behalf of Mr Soo, who Mr X had known since 1965 and was his ex-business partner. 

3.In 2004, 2016 and 2017 Mr Soo demanded money from Mr X.  Although Mr X did not owe Mr Soo any money he nevertheless paid Mr Soo to avoid any trouble. 

4.In April 2019 when Mr Soo demanded further money, Mr X refused to pay. 

5.On 11 May 2019 D1 went to the home of Mr X at about 7:30 a.m. and waited outside for Mr X.  Mr X was however in Japan.  When Mr Y, Mr X’s brother, left home at about 7:40 a.m., D1 believing he was Mr X had Mr Y followed by female Ng Hoi Yan. 

6.Mr Y walked to a nearby park.  After exercising Mr Y was approached by D1, D2, female Ng Hoi Yan and male Leung Ka Fai and was told to pay the money he owed to Mr Soo.  Mr Y did not know what the matter was about.  Mr Y felt quite uncomfortable when they followed him home. 

7.Mr Y told Mr X what had happened.  On 15 May 2019 after returning to Hong Kong Mr X received a lot of calls on his mobile phone from people he did not know.  In the afternoon Mr X sent a SMS to Mr Soo telling him that his old habits die hard and that doing things like triad members would not benefit him.  Mr X said if by 5 p.m. the next day he did not receive an apology from Mr Soo for sending gangsters to his home to threaten him he will call the police.   

8.Mr X did not receive an apology.  Instead at 5 p.m. the next day, 16 May 2019, D2 sent to Mr X, by mobile phone, a note with Mr X’s photograph titled “Notice of Missing Person” stating “It is right and proper to pay up your debt”; that Mr X was a beast in human clothing who gains fame by deceiving the public and asking anyone who sees Mr X to call AppleDaily with a generous reward on offer.

9.After receiving the note Mr X felt that he had to make a report to the police because of what happened on 11 May outside the entrance of his home which affected his family and that he could no longer take Mr Soo cheating him time after time. 

10.On 22 May D2 sent a text message telling Mr X to call otherwise the dispute would be publicised.  The message referred to a loan of RMB 5 million to a Mr Kwok and the deception of Mr Soo’s shares.  Mr X said these two matters were just excuses used by Mr Soo to cheat him because he had resolved all this with Mr Soo. 

11.Two photographs, of the entrance to the building where Mr X worked and the alley next to where his office was accompanied the message.  Mr X thought that the sender was letting him know they knew where his office was so as to threaten him. 

Mitigation

12.I have carefully considered the oral and written submissions of Mr Donald and Mr Paul Kwong.  I take into account that both defendants have no prior convictions for blackmail.

13.I have read the letter written by D1’s wife, who speaks of her husband as a kind hearted man who has over the years contributed to society by doing voluntary work.  D1’s wife is in court to support her husband.

14.There are no guidelines for blackmail, each case depending on its own facts and circumstances.  I have considered the cases submitted by Mr Donald and Mr Paul Kwong[2].

15.In HKSAR v Fong King Choi, a case involving a demand for protection money from a shopkeeper, the Court of Appeal listed a number of factors bearing on the gravity of the offence including (1) the nature and amount of the demand; whether the demand was for a one-off payment or regular payments; (2) the nature and circumstances in and by which the demand was made; whether the offender acted alone or with others; whether the demand was made on a single occasion or on repeated occasions; whether there was actual or threatened violence to a person or damage to property; whether there was an expressed or implied triad connection; whether it was part of a sustained campaign of intimidation against other victims; and (3) the consequences of the demand and the effect on the victim; whether the victim yielded to the demand for extortion money and whether any loss was suffered[3].

16.I am satisfied the factors bearing on the gravity of the offence equally apply to other demands for money and not just cases concerning demands for protection money.   

17.Mr Donald submits that the demand was for a debt thought due and that the court found that pressure was asserted on Mr X to pay back the debt to Mr Soo[4]. This with respect is a misreading of the verdict.  I accepted the evidence of Mr X that he did not owe anything to Mr Soo[5].

18.Mr Donald further submits that there was no suggestion, implied or otherwise, of any triad element in the case[6]. Whilst this is not a case of collection of protection money and no specific claims were made of being members of triad societies, Mr X perceived the acts as acts of triad members.  In his SMS of 15 May 2019 Mr X tells Mr Soo that doing things like triad members would not benefit him and asks for an apology for sending gangsters to his home to threaten him. 

19.Both Mr Donald and Mr Kwong submit that no violence was used; the threats did not materialize and that Mr X did not capitulate to the demand[7].

Sentence

20.Taking into account all the circumstances of the blackmail including that no violence was used and that Mr X did not yield to the demand, I am satisfied a sentence after trial of 2 years and 6 months’ imprisonment is appropriate.

Voluntary work

21.In her letter D1’s wife details some voluntary work and a donation made by her husband with supporting documentation.  The donation was in 2011 and the voluntary work in 2016.  D1 appeared in court in 2017 when he was placed on probation.  Mr Donald informs the court that in 2017 D1 did not ask the court to take into account the donation but says it is not clear whether reliance was sought on the voluntary work.  In addition, in 2018 the defendant adopted a bulldog which had been abused and abandoned.   

22.In the circumstances I am satisfied some credit should be given to D1 for his donation and voluntary work including his kindness shown in adopting the bulldog.  I reduce the sentence by 1 month to 2 years and 5 months’ imprisonment. 

23.D2 submits three letters showing he has participated in voluntary work since 2016, in particular helping the elderly.  I am satisfied some credit should also be given to D2 for his voluntary work with the elderly.  I also reduce the sentence by 1 month to 2 years and 5 months’ imprisonment.

Ill health

24.D1’s wife in her letter also refers to her husband’s health condition having spent five days in hospital while in detention.  Whilst sympathetic to anyone suffering from serious illness, I am satisfied this provides no ground to further reduce the sentence.  I am satisfied D1 will receive all necessary medical treatment while serving sentence and that the prison authorities will closely monitor the defendant’s condition.  Should there be a change in D1’s condition he may always apply to the Chief Executive for clemency.

25.D1 and D2 are each sentenced to 2 years and 5 months’ imprisonment.