HKSAR v. Tsui Tak Man and Another

[English Translation – 英譯本]

CACC 157/2020

[2021] HKCA 1669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO. 157 OF 2020

(ON APPEAL FROM DCCC NO. 145 OF 2020)

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Before: Hon D Pang and A Pang JJA in Court 

Date of Hearing: 5 November 2021

Date of Judgment:  25 November 2021

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JUDGMENT

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Hon A Pang JA (giving the judgment of the Court):

Introduction

1.On 10 September 2020, the two applicants pleaded guilty to two charges of “blackmail”[1] (Charges 1 and 3), and the 1^st applicant pleaded guilty to another charge of “claiming to be a member of a triad society”[2] (Charge 4) before Deputy District Judge Colin Wong (“the trial judge”). They were both sentenced to a total term of 42 months’ imprisonment. They now apply for leave to appeal against sentence.

Admitted facts

2.X rented shop premises in Fortune Plaza to operate a “toy grabbing shop” (“the Shop”).

3.In the small hours on 17 November 2019, the 1^st and 2^nd applicants showed up at the Shop demanding to talk to X. To avoid disturbing the customers, X stepped out of the Shop with the two.  The 1^st applicant referred himself as “Tak Man”, said that “it’s I who look after Tai Po” and demanded X to pay HK$8,000 per month as protection fee. He said that if X did not do so, someone would bring trouble to the Shop; but if X agreed to pay it, he would make sure that there would not be any problem to X’s Shop, and in case of any trouble, the 1^st applicant would deal with it for X.  X replied that he was a Taiwanese, that he did not understand the workings in question and had to discuss with his wife.  The 2^nd applicant expressed that X had to go with the workings in Hong Kong. He said that he was responsible for looking after Tai Po and repeated what the 1^st applicant said about the payment of protection fees. The two applicants then left the Shop. (Charge 1)

4.In the small hours on 30 December 2019, the 1^st and 2^nd applicants appeared at the Shop again and demanded to speak with X.  PW2 was at the scene at that time, who accompanied X at X’s request.  After the four of them had stepped out of the Shop, the 1^st applicant said that in order to run the business of toy grabbing machines, he had procured a batch of snooker equipment as prizes. However, X did not give one of the machines to him for his operation and thus, he lost HK$12,000.  Therefore, the 1^st applicant demanded compensation and further claimed that he was “Tai Po Lo Sun Tak Man” and also the “big brother” at the place, and that as X did not offer him any toy grabbing machine, he would get someone to bring trouble to X and his Shop.  In response, X expressed that he was willing to purchase that batch of snooker equipment from the 1^st applicant, but the latter claimed that he had returned the equipment and the $12,000 was the difference after deducting the refund. He demanded X to make compensation for that difference.  The 1^st applicant even accused X of not giving serious consideration to his previous demand for protection fees, hurled $2,000 worth of banknotes onto the Shop premises and demanded X to pick them up to show discontent for X’s offer of “tea money” to them.  The 2^nd applicant also accused X of not living up to his promise and bringing trouble to him and the 1^st applicant. (Charges 3 and 4)

5.As X knew that “Lo Sun” meant the triad society “Sun Yee On”, he decided to report the matter to the police asking for assistance.  He left the scene with PW2 for Tai Po police station to report the case on the pretext of going to withdraw money.

Reasons for sentence

6.The trial judge pointed out that the 1^st applicant had three previous convictions of different nature, and the most recent one was back in 2011, a gambling-related offence for which he was fined.  As for the 2^nd applicant, he was sentenced to imprisonment of over 8 years in 2009 for a drug-trafficking offence.

7.During mitigation, counsel for the 1^st applicant submitted that, as there were only two offenders in the present case, and the present case was in the category of an opportunistic act which did not aim at small businesses; it was hoped that the court would pass a lighter sentence in view of the factors such as the 1^st applicant’s family background and his timely guilty plea.  Regarding Charge 4, the defence admitted that even for first offenders, they could be subjected to immediate imprisonment, but the court was urged to consider the fact that the said charge was part of the case of the “blackmail” charge, and to order that the full sentence run concurrently. Counsel for the 2^nd applicant submitted, on the other hand, that the 2^nd applicant had only assisted the 1^st applicant out of loyalty.

8.During sentencing, the trial judge pointed out that there was no tariff for the offence of blackmail, but time and again the Court of Appeal had stressed that small businesses run on small capital and earn a living to support families by labour; thus anyone who swindles money out of them commits a serious crime and should be punished severely for the purpose of deterrence[3]. The trial judge particularly pointed out that in the case of Chan Chi Man, the Court of Appeal has expressly stated that the amount involved in the offence of blackmail is not a significant factor for sentencing[4]. Furthermore, after considering HKSAR v Wong Fu Wa & Anor[5], the trial judge took the view that the 2^nd applicant could not get a lenient sentence just because he had played a lesser role in the case.

9.Finally, in respect of Charge 1, although the two applicants did not claim themselves to be members of a triad society, they threatened to bring X trouble and demanded X to pay monthly protection fees. The trial judge therefore took the view that the facts in this case were more serious than those in Wong Yin Chak, and 42 months should be adopted as the starting point.  A one-third discount was given to the two applicants since they had pleaded guilty, and they were thus sentenced to immediate imprisonment for 28 months.

10.In respect of Charge 3, the trial judge adopted a 48 months’ starting point, and after applying a one-third discount for their guilty pleas, the two applicants were sentenced to imprisonment for 32 months.

11.Regarding Charge 4, after considering the authorities, the trial judge adopted a 12 months’ starting point, and after the reduction for his guilty plea, the 1^st applicant was sentenced to imprisonment for 8 months.

12.Charge 1 and Charge 3 took place on different dates, but the offences were committed against the same victim and of a similar nature. Hence, the trial judge took the view that, by applying the totality principle, part of the sentences should run consecutively. It was finally ordered that 10 months out of the sentence on Charge 1 was to run consecutively to that on Charge 3.  This order was also applicable to the 2^nd applicant; hence, the total sentence for the two was 42 months’ imprisonment.  Since it had been taken into account that the 1^st applicant had acted by claiming as a member of a triad society when considering Charge 3 of blackmail, the trial judge ordered that the sentence on Charge 4 was to run concurrently to that on Charges 1 and 3.

The 1^st applicant’s ground of appeal

13.The 1^st applicant’s sole complaint was that the trial judge should not have ordered 10 months out of the sentence on Charge 1 to run consecutively to that on Charge 3, which made the total sentence manifestly excessive.  Mr Michael H. K. Leung, counsel for the 1^st applicant, submitted that a consecutive term of 4 months would be sufficient to reflect the 1^st applicant’s overall culpability.

14.Mr Leung submitted that, in HKSAR v Lam Wing Tat & Anor[6], the Court of Appeal described that that case was more serious as compared to other cases in the same category.  The 1^st applicant in that case had mobilised people and had bullied a shopkeeper of a small business for a long time.  Apart from blackmailing the victim in the name of “tor tei” collection, on numerous occasions he had paid less or had not paid for meals consumed in the victim’s shop.  The Court of Appeal took the view that a sentence of 4 years and 2 months was insufficient to reflect the gravity of the case and ordered that the 2 months that he had served should not be reckoned.  In that case, there were fewer instances of the 2^nd applicant not paying for meals; therefore, the court took the view that the sentence of 4 years’ imprisonment was not light but certainly not manifestly excessive.  Mr Leung also submitted that in Wong Yin Chak, the Court of Appeal took the view that, as the gravity of the case was at the lower end and there was no triad element involved, the sentence was adjusted downward from 4 years to 3 years.

The 2^nd applicant’s grounds of appeal

15.Mr Hay-yiu Wong, counsel for the 2^nd applicant, put forward two grounds of appeal. Ground 1 was that the nature of Charge 3 was not blackmail for protection fees, not to mention that it was not blackmail for protection fees in the form of periodic payments; as its nature was different from those in cases such as Chan Chi Man, Wong Fu Wa and Wong Yin Chak, the starting point of 4 years was manifestly excessive and erroneous in principle, such that the total sentence was manifestly excessive.  Ground 2 was that, apart from the two counts of blackmail, the 1^st applicant also pleaded guilty to another offence of claiming to be a member of a triad society, but there was no difference in the total sentences passed on the two applicants, which made the 2^nd applicant feel aggrieved[7].  Therefore, there should be a reduction in the sentence on the 2^nd applicant.

The respondent’s reply

16.Ms Christal Chan, Assistant Director of Public Prosecutions for the respondent, took the view that the trial judge had correctly pointed out that there was no tariff for the offence of blackmail, and it was appropriate for the trial judge, upon reviewing the relevant authorities, to adopt the starting points of 42 months and 48 months respectively for Charges 1 and 3. 

17.Regarding Charge 3, Ms Chan submitted that at the time of committing the offences, the two applicants had not only mentioned the amount of HK$12,000 involved in the charge of blackmail, but had also accused the victim of not treating their earlier demand for monthly protection fees seriously (that is, the protection fee relating to Charge 1); therefore, Mr Wong’s complaint against that offence should not stand.

18.As to the question of totality, Ms Chan did not consider the trial judge’s order that 10 months out of the sentence on Charge 1 running consecutively to that on Charge 3 to be manifestly excessive either.  She submitted that the gravity of the present case was between that of Lam Wing Tat and Wong Yin Chak.  In view of the monthly protection fee of $8,000 involved in Charge 1 not being a one-off payment, together with the triad factor (Charge 3), a total sentence of 42 months imposed on the two applicants was not manifestly excessive, nor was it erroneous in principle.

19.Regarding the 2^nd applicant’s complaint of having the same sentence as the 1^st applicant, Ms Chan submitted that in HKSAR v Chan Cheuk Hong [8], the Court of Appeal expressly stated that if the judge had already considered the element of “claiming to be a member of a triad society” when passing sentence on an offence of blackmail, it would be inappropriate to order the sentences of the two offences to run consecutively.

20.Ms Chan took the view that the present case was not similar to the case of Wong King Wai cited by Mr Wong.  The trial judge in Wong King Wai erred when sentencing one of the defendants, causing the other, who was correctly sentenced, to feel aggrieved.  The trial judge in the present case sentenced the two applicants correctly, and the culpabilities of the two were more or less the same.

Discussion

21.In chronological order, we first looked at Wong Fu Wa, which was decided in 1998.  The two applicants in that case pleaded guilty to one count of blackmail and were sentenced to imprisonment for 3 years.  In that case the two went to a bar in Wanchai on different dates, claiming that they were of “14K”, responsible for the bars in that district and demanding a monthly payment of $10,000. On one of the occasions, there were ten to fifteen men turning up at the same time and the 1^st applicant said that those men were his “brothers”.  The Court of Appeal pointed out that the facts fell under the classic example of blackmailing a shop for protection fees, but it involved at the initial stage the flexing of muscles through a considerable number of people and therefore the facts were more serious.  The Court of Appeal took the view that this type of blackmail was not only very prevalent, but the particular way of committing the offences would also silence the victims in fear. Therefore, the court had to deal with them severely to show that such acts of blackmail would not be tolerated. The Court of Appeal hence took the view that the starting point of 4 years adopted in that case was appropriate.

22.Wong Yin Chak, decided in 2004, was a case in which the applicant and the co-accused had pleaded not guilty to two counts of blackmail, but were found guilty of one of the counts after trial.  The trial judge sentenced the 1^st applicant to 4 years of imprisonment, but the other accused was sentenced to a training centre order because of his age.  In that case, the two had repeatedly turned up at a newspaper stall within a few days in Causeway Bay to demand protection fees, and on two occasions splashed soft drinks at the stall.  The Court of Appeal mentioned that the applicant did not threaten to use violence, nor did he claim himself to have a triad background, and that the stall owner was only demanded to pay a one-off protection fee instead of periodic payments.  Hence, the starting point of 4 years adopted by the trial judge was manifestly excessive and was adjusted downward to 3 years.

23.Chan Chi Man was decided in 2013.  In that case, the applicant upon trial was convicted of one count of blackmail and one count of “claiming to be a member of a triad society”, for which he was        sentenced to imprisonment for 4 years and 1 year respectively, to run concurrently.  In that case, the applicant demanded that the shopkeeper of a snack shop pay an annual “tor tei fee” of $2,000.  He also expressed that he had a triad background, and if the shopkeeper refused his demand, he would cause a nuisance.  The Court of Appeal said:

“20. This court must stress that, the gravity of this type of cases is that those who claim themselves to be members of a triad society intimidate small businesses, demanding them to pay ‘protection fees’. Such cases form a category of its own, and the other blackmail cases offer not much help as sentencing guidelines.

21. This court also takes the view that in cases where members of a triad society blackmail small businesses, the amount blackmailed is not an important factor for sentencing. The offender’s purpose must be to extort as much money from the victim as possible, the amount of which will depend on the victim’s capability.

…

23. … This court must stress that small businesses run on small capital.  They work hard, earn a living and support their families by labour.  Bad people such as the applicant, however, bully them and extort money from them for personal gains.  This court must emphasise that the applicant’s criminal act must be dealt with severely.  The applicant’s criminal act will put small businesses into extreme fear, and therefore he must be sentenced heavily for deterrence and to prevent the spread of such offences.”

24.Finally, the Court of Appeal took the view that a starting point of 4 years was not light, nor was it manifestly excessive.  Therefore, the applicant’s application for leave to appeal against sentence was refused.

25.Lam Wing Tat was decided in 2014.  After trial, the two applicants were convicted of two counts of blackmail and the 1^st applicant was also convicted of multiple counts of “making off without payment”.  The trial judge sentenced the 1^st applicant to imprisonment for 4 years and 2 months, whereas the 2^nd applicant was sentenced to imprisonment for 4 years.  The facts show that the 1^st applicant expressed to the shopkeeper of a cooked food stall that a monthly “tor tei” of $3,000 had to be collected, and demanded that when he and his “brothers” went there for meals, discounts had to be offered to them.  When the blackmail in question was being made, the 1^st applicant expressly stated that if the shopkeeper did not comply, he would create trouble for the shop.  Later on, in a period of a few months the 1^st applicant went to the cooked food stall together with other people to have meals on numerous occasions, and each time they paid at a discount.  During that period the 1^st applicant also demanded the shop owner to pay “lai see” by way of threats, and made a scene out of nothing on numerous occasions.  The Court of Appeal said:

“30. It is extremely prevalent to blackmail business owners with a triad tone. This is a very serious offence. The court must pass heavy sentences for deterrence. An offence of a one-off incident of blackmailing a business owner can lead to a starting point of 4 years’ imprisonment (see HKSAR v Wong Fu Wah [Wa] & Another [1999] 1 HKC 363). In HKSAR v So Pak Chung CACC 52/2008, this court even made it clear that if there are aggravating factors in the case, such as forming gangs to commit the offence and acting in the capacity of a triad, the starting point of the blackmail offence could be well over 4 years. The present case is a more serious one among those in the same category. Over a long period, the applicant assembled people and bullied an owner carrying on a small business. They not only blackmailed Mr Lau in the name of collecting ‘tor tei’, but also paid less or did not pay after having meals at Good Chef.”

Finally, the Court of Appeal arrived at the following conclusion:

“38. In fact, this court is of the view that if there is room to criticise the way the trial judge handled matters, it is that the sentence passed on Lam is too light, not that the sentence passed on Wong is too heavy.

39. The trial judge sentenced Wong to 4 years of imprisonment, which was not lenient, but certainly not manifestly excessive. This court does not allow the two applicants’ applications for leave to appeal against sentence.

40. Meanwhile, this court also takes the view that Lam’s sentence is insufficient to reflect the gravity of his forming gangs to threaten Mr Lau over a long period of time and making Mr Lau succumb to the threat.  There is nothing arguable at all in Lam’s application for a sentence reduction.  Therefore, it is ordered that 2 months of the time during which Lam was in custody pending determination of his appeal shall not be reckoned as part of the term of sentence to which he was for the time being subject.”

26.This court must point out that the cases were summarised above not for the purpose of comparison. Rather, they were cited by the parties and the trial judge, and thus, in our view, by setting out the gist of each case, it may help to identify the relevant factors that have been considered by the courts when sentencing in this type of cases involving blackmail offences. They include:

(1)  whether it involved a single offender or multiple offenders;

(2)  whether the blackmail was for a one-off amount or periodic payments (but the amount of the blackmail is not an important sentencing factor);

(3)  whether the accused acted as a member of a triad society;

(4)  whether gangs and people were assembled to flex muscles;

(5)  whether violence was used or threatened to be used; and

(6)  whether the business owners were disturbed or bullied for a long period of time.

27.Of course, the facts vary from case to case.  If there are aggravating factors, the court must take them into account and adopt a starting point that can reflect them appropriately.

28.Back to the present case, the two applicants were in a joint enterprise, demanded that X pay a monthly protection fee (Charge 1) and threatened to bring trouble to X.  Hence, this court takes the view that it was appropriate for the trial judge to adopt a starting point of 42 months in respect of Charge 1.  Regarding Charge 3, although it appeared to be a demand for compensation, it was obviously a pretext used by the two applicants to demand a sum of money from X by threat. Just as Ms Chan submitted, when the two applicants were committing Charge 3, not only did they rake up X’s previous unfulfilled promise, but the 1^st applicant also expressed that he had a triad background.  This court, therefore, takes the view that it was also appropriate for the trial judge to adopt 4 years as the starting point.

29.Finally, the trial judge ordered 10 months of the sentence to run consecutively to achieve a total sentence of 42 months for the two charges (that is 5 years and 3 months as the overall starting point).  This court takes the view that there were circumstances which made this case serious, but the two charges did not involve aggravating factors such as long-term nuisances to the victim or assembling people to flex muscles, as in the case of Lam Wing Tat.  Hence, a total sentence of 42 months is obviously manifestly excessive.

30.Taking all the relevant circumstances of the present case into account, a total sentence of 36 months is sufficient to reflect the gravity of the two offences.  Accordingly, although the respective sentences on the two charges remain unchanged, this court orders that 4 months, instead of 10 months, of the sentence on Charge 1 run consecutively to that on Charge 3.  That means the total sentence becomes 36 months.

31.Although the 2^nd applicant has expressed that he feels aggrieved, this court takes the view that the trial judge was correct in principle and has not erred by ordering the sentence on Charge 4 to run concurrently to the other sentences for the 1^st applicant.  The 2^nd applicant is not in a position to claim that he has been treated unfairly just because the other accused pleaded guilty to one more offence but ended up having the same sentence as him.  On the contrary, it would be unjust to overlook the relevant sentencing principles by lengthening the 1^st applicant’s sentence, which was correctly passed, or shortening the 2^nd applicant’s sentence, which was also correctly passed, just for the purpose of making a difference in the sentences passed on the two.

Conclusion

32.Based on the above, this court allows the two applicants’ applications for leave to appeal against sentence, and treats this as the appeal itself.  The appeal is allowed, and the original total sentence of 42 months shall be adjusted downwards to 36 months. As stated above, it is ordered that the sentence of 4 months out of the 28 months on Charge 1 shall run consecutively to the sentence of 32 months on Charge 3, and the rest shall run concurrently.

Ms Christal Bertha Shuk Yi Chan, Assistant Director of Public Prosecutions, for the Respondent

Mr Michael H.K. Leung, instructed by Cheng Alvin & Rosaline Choy, assigned by Legal Aid Department, for the 1^st Applicant

Mr Hay-Yiu Wong, instructed by Betty Chan & Co., assigned by Legal Aid Department, for the 2^nd Applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.