HKSAR v. Leung Man Chun and Others

DCCC 912/2020

[2021] HKDC 1036

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 912 OF 2020

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REASONS FOR SENTENCE

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1.D1 and D2 are jointly charged with one count of blackmail, contrary to Section 23(1)  and (3)  of the Theft Ordinance, Cap 210 of the Laws of Hong Kong. D1, D2 and D3 are jointly charged with one count of assault occasioning actual bodily harm, contrary to Section 39 of the Offences against the Person Ordinance, Cap 212 of the Laws of Hong Kong (Charge 2). D1 is also charged with one count of procuring a person to use an identity card relating to another person, contrary to Section 7A(1A)  of the Registration of Persons Ordinance, Cap 177 of the Laws of Hong Kong and Section 89 of the Criminal Procedure Ordinance and one count of theft, contrary to Section 9 of the Theft Ordinance, Cap 210 of the Laws of Hong Kong (Charges 3 and 4). D3 is further charged with one count of failing to surrender to custody without reasonable cause, contrary to Section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong (Charge 5).

2.D1 pleaded guilty to Charges 1, 2 and 3.  D2 pleaded guilty to Charges 1 and 2 and D3 pleaded guilty to Charges 2 and 5.  D2 pleaded not guilty to Charge 4 and the prosecution applied to keep Charge 4 in the court file and it is so ordered.

Summary of Facts

3.At around 9.40 am on 9 October 2017, a group of police officers attended a guesthouse in Mongkok area to investigate a case of assault.  D1, D2, D3 together with five others were found at the reception area of the guesthouse. Subsequently, X, one Mr Chan and another three persons were found inside a room in a guesthouse.  X was later sent to the A&E Department of Kwong Wah Hospital for treatment.  He suffered from (a)  tenderness over multiple joints of his right hand with bruising and swelling; (b)  left shoulder bruising and tenderness over the shoulder joint and (c)  minimal tenderness in the right elbow.  He was discharged after treatment.

4.A 33 cm-long hammer was found on the floor beside the bed inside the room where X was located.  A 9 cm-long pair of scissors was seized from D1’s right front trousers’ pocket. D1, D2 and D3 were all arrested at the scene.

5.D1 admitted under caution in his video-recorded interview with the police that he was responsible for security matters at the guesthouse.  The person in charge of the guesthouse made a phone call to D1 and requested for his help as X, who was inside one of the rooms of the guesthouse at that time with others, owed him money.  D1 then went over with six males and demanded X to pay the HK$300 debt.  X replied that he would repay $500 on Monday.  D1 slapped X 8 to 10 times as X’s attitude was not good.  D1’s party then brought X to another room and he further slapped X around 10 times.  He asked X for HK$30,000 instead of HK$300.  D1 then used a pair of scissors to cut X’s hair and hit X’s right hand and left shoulder 3 to 4 times with a hammer that he had taken from the storeroom.  D1 further admitted that Chan suggested pawning his mobile phone for money as X requested Chan to sell his phone.  Since Chan was a minor, D1 retrieved some Hong Kong ID cards that he had picked up earlier and gave to Chan to conceal his identity.  D1 then asked D2 to bring Chan to the pawn shop.  Chan later gave $1,500 to D1.

6.D2 admitted that he went to the guesthouse at around 2.30 am as D1 requested him to go to back him up.  There were more than 10 people inside the room when he arrived.  He witnessed D1 assault X as described.  Later D2 brought Chan to the pawn shop and he received a remuneration of $100 from D1 for helping him. 

7.D3 admitted that he was with two other persons when he received a phone call from D1 at around 5 to 6 am on that day.  D1 requested them to go to the guesthouse.  He knew that they may need him to beat someone up and there were over 10 people inside the room when their group arrived.  D3 slapped X once to twice on D1’s request.  D1 also hit X’s right hand with a hammer which was wrapped in cloth and other people also hit X on his head.  D3 described the incident lasted for about an hour.

8.CCTV of the pawn shop captured Chan and D2 entering the pawn shop at 9.53 am on 9 October 2017.  The staff of the shop confirmed Chan had presented a Hong Kong ID card of another person and received Hk$1,500 for pawning his mobile phone.

9.D3’s case was transferred to District Court for plea on 17 November 2020 and he was granted bail.  However, he failed to appear in court on that day.  A warrant of arrest was issued.  On 25 January 2021, D3 was intercepted by the police for another case and his wanted status was reviewed.  He was re-arrested and under caution he claimed that he forgot to attend court. 

Personal Matters, Background and Mitigation – D1

10.D1 is aged 42.  He divorced in 2015 and currently has a girlfriend and a 3-year-old daughter.  His girlfriend has been suffering from depression, heart disease and hypertension.  D1 has six previous convictions, two relating to violence.  For his last conviction, he was sentenced to 30 months’ imprisonment for a sole count of conspiracy to blackmail on 29^th November 2018 (DCCC 437/2018).  After he had been discharged from prison in August 2019, he was able to secure a job as a casual worker in a bone setting shop earning around $8,000 per month.  Mr Woon, counsel for D1, submitted that D1 received a call from the owner of the guesthouse that X had stolen $300 from the guesthouse and instructed D1 to collect the payment.  When prompted, X refused to pay and displayed arrogance and hostility towards D1.  Outraged by X, D1 assaulted X and made an unwarranted demand of HK$30,000.  X suggested that he would sell his mobile phone to settle part of the demand but Chan suggested pawning the phone.  As Chan was a minor, D1 gave a Hong Kong ID card that he had picked up earlier from a guest who had left the same in a hotel as proof of identity. 

11.Mr Woon further submitted that D1 suffered tremendous mental distress as his 3-month-old son died tragically in July 2020 and then he was re-arrested for the present offence in August 2020.  He invited this court to take into consideration when sentencing D1 that should this case be heard together with DCCC 437/2018 as a matter of totality principle part of the sentences might be ordered to be run concurrently with that case.

12.D2 is 35 years old, married and has 5-year-old son.  His wife and son are currently living in China.  Since his remand in prison in 2019, his wife has secured a job as an estate agent in China.  D2 received education up to Secondary 5 level.  He intended to resume his studies in the Open University after he has served all his sentence.  D2 had four previous convictions, two relating to violence.  As stated, he is currently serving a sentence and is expected to be released earliest by February 2022. 

13.Ms Cheung, counsel for D2, stressed that D2 played a relatively minor role in the blackmail and the assault.  She emphasised that X did owe someone $300.  The demand initially was genuine and it was D1 alone who turned the demand to an unwarranted one because of X’s behaviour.  Ms Cheung referred me to some authorities and excerpts in sentencing in Hong Kong regarding the totality principle and submitted that the court should consider that the assault was part and parcel to the blackmail.  She further stressed that there was a delay of almost three years in bringing the prosecution against the defendants.

14.D3 is 26 years old and has a 3-year-old son.  He received education up to university level in India.  He arrived in Hong Kong in 2013 and then he sought asylum here.  He resides with his girlfriend and their son in Hong Kong.  D3 currently relies on ISS assistance for his living expenses.  D3 has three previous convictions, none similar.  Ms Herbert submitted that D3 is less culpable in the assault on X.  She referred me to some authorities regarding the length of sentence concerning an assault by a group of people or a gang. In relation to Charge 5, she explained that D3 forgot to attend court on that day and that the duration of D3’s failure to surrender is relatively short and posed no inconveniences or delay in the criminal proceedings against all defendants.

Considerations

15.I have considered all the oral and written submissions and the authorities submitted by counsels for the defendants. 

Charge 1

16.There are no sentencing guidelines for the offence of blackmail.  In HKSAR v Fong King Choi [2020] 2 HKC 219, the Court of Appeal set out the 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 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.

17.In HKSAR v Lui Chun Yeung [2014] 2 HKLRD 993, the appellant of that case visited a salon and demanded from the female owner a monthly protection fee of $500 but then agreed to accept $300, failing which the salon would be set on fire.  The shop owner paid and four days later the defendant surrendered to the police.  The Court of Appeal adopted a starting point of 3 years and 3 months’ imprisonment which then reduced to 26 months for the plea of guilty and then a further 3 months’ reduction because of the defendant’s act of surrender. 

18.The unwarranted demand of $30,000 in this case was made in the presence of a group of over 10 people which obviously intended to give greater weight to the threat.  The amount of extortion is not insignificant.  Actual violence with weapons was used against X and his hair was cut which was a humiliation and an aggravating feature.  Even though the demand was made on a single occasion, the incident took place as early as 2.30 am and lasted till 9.40 am when the police arrived.  It was not a short period of time.  X did yield to the demand as he needed to ask Chan to pawn his own mobile phone for $1,500 and gave that money to D1 to satisfy the demand.

19.Taking into account all the circumstances of the blackmail including the factors stated in the preceding paragraph, I am satisfied that a starting point of 3 years and 9 months’ imprisonment for Charge 1 is appropriate.  In respect of Charge 1 against D1, I accepted that if this case was heard together with DCCC 437/2018, the sentencing court would bear in mind the totality principle and order the part of the sentences to be run concurrently with the sentence of DCCC 437/2018.  However, the effect would probably be offset by the enhancement of sentence by reason of the fact that D1 committed DCCC 437/2018 while on bail police of the present case in which the Judge in DCCC 437/2018 did not do so.  Mr Woon rightly considered that was the case and made no further submission.  In any event, I am prepared to give some credit to D1.  I am satisfied that a reduction of 3 months’ imprisonment is appropriate.  D1 is entitled to one-third discount of his plea of guilty and therefore for Charge 1 his sentence is reduced to 2 years and 3 months’ imprisonment.

20.As to the issue of assessing culpability of different defendants in the joint enterprise, in HKSAR v Muhammad Rizwan And Others [2019] HKCA 643, in paragraph 99 of the Judgment stated that:-

“The sentencing principle for joint enterprise crimes is that participants knowingly lending their assistance to advancing the criminal enterprise do not receive a lesser sentence simply because their role was different from that of other participants. There must be something about the others, such as being the ringleaders, or themselves and their conduct, that lessens their culpability”.

21.I accept that D1 is a ringleader. However, D2 also played an important part in the crime.  He was requested by D1 to attend the scene to add force to the threat at an early stage.  He admitted that he did assault X, though the force he used was minimal.  He brought his friends to the pawn shop for pawning the mobile phone.  He received a remuneration of $100 from D1 for helping him. Having considered all the facts, I will assess D2’s culpability slightly lesser than D1.

22.For Charge 1 against D2, I will take a starting point of 3 years and 3 months’ imprisonment.  The sentence is reduced to 2 years and 2 months’ imprisonment to reflect his guilty plea.

Charge 2

23.For the offence of assault occasioning actual bodily harm, bearing in mind that (1)  weapons were used; (2)  acts of humiliation by cutting the victim’s hair; and (3)  it is an assault by the group of over 10 people which lasted for several hours, a starting point of 15 months’ imprisonment is appropriate.  For D1, upon his plea of guilty, the sentence will be reduced to 10 months’ imprisonment.

24.In assessing the culpability of D2 and D3, I will assess D2’s culpability slightly lesser than D1.  D3 joined the gang at a much later stage.  He admitted he slapped X’s face twice.  His culpability is then much lesser than D1 and D2. 

25.For Charge 2 against D2, I will take a starting point of 12 months’ imprisonment.  The sentence is reduced to 8 months’ imprisonment upon his plea of guilty.

26.For D3, I will take a starting point of 9 months’ imprisonment and reduce it to 6 months’ imprisonment for his plea. 

Charge 3

27.I will take a starting point of 6 months’ imprisonment.  Giving full credit of D1’s plea of guilty, the sentence is reduced to 4 months’ imprisonment.

Charge 5

28.In HKSAR v Lam Kin Chung [2007] 2 HKC 451, a case submitted by Ms Herbert, the Court of Appeal upheld a sentence of 6 months’ imprisonment for a defendant who failed to surrender to custody for a period of 9 years and 4 months.  The period of the failure to surrender in D3’s case is around two months.  I will adopt a starting point of 9 weeks’ imprisonment.  D3 is entitled to one-third discount of his plea of guilty.  In respect of Charge 5, D3 is sentenced to 6 weeks’ imprisonment, that is 1½ months’ imprisonment.

Delay

29.The incident happened on 19^th October 2017 and the defendants were charged in August 2020.  According to the chronological timeline provided by the prosecution, the first legal advice was received by the police on 29^th November 2018.  Follow-up and further enquiries with the prosecution witnesses were initiated on 14^th December 2018.  The case was submitted for further legal advice to the prosecution on 14^th December 2019 and it was not until 2^nd July 2020 that the police received the further legal advice from the prosecution and then the defendants were then located and charged.  While this court appreciates that prosecution witnesses might have changed their stances and the prosecution need time to reconsider the strength of the evidence but there was no fault on the defendants’ part.  This is not a complicated case which involved large volumes of documents and exhibits.  The matter could have been brought to the court much earlier.

30.I am satisfied that some credits should be given to the defendants as a result of the delay.  For Charges 1, 2 and 3, I will further reduce the individual sentences by 2 months’ imprisonment.

Totality principle

31.I accept that Charges 2 and 3 is part and parcel to the blackmail charge and they did not add to the culpability of the blackmail (see HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690).  In fact, I have taken into account the violence and X’s submission to the demand as an aggravating feature of the blackmail.  It is appropriate to order the sentences of Charges 2 and 3 to be run wholly concurrent to the sentence of Charge 1.

32.For D3, Charge 5 is a separate and distinct offence.  The sentence should be run wholly consecutive to the sentence of Charge 2.

Sentence

D1

33.Charge 1: 2 years and 1 months’ imprisonment.  Charge 2: 13 months’ imprisonment.  Charge 3: 2 months’ imprisonment.  All charges to be run concurrently.  D1 is sentenced to 2 years and one months’ imprisonment for three charges.

D2

34.Charge 1: 2 years’ imprisonment.  Charge 2: 6 months’ imprisonment.  All charges to be run concurrently.  D2 is sentenced to 2 years and one months’ imprisonment for Charge 1 and 2.  D2 is now currently serving sentence.  I will order 13 months’ imprisonment of the sentence of the present case to be run consecutively to his current serving sentence.

D3

35.Charge 3: 4 months’ imprisonment.  Charge 5: 1½ months’ imprisonment. Sentence of Charge 3 to be run wholly consecutive to the sentence of Charge 5. D3 is sentenced to 5½ months’ imprisonment.