HKSAR v. Woo Ka Ming

DCCC 821/2022

[2023] HKDC1805

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 821 OF 2022

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REASONS FOR SENTENCE

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1.Defendant pleaded guilty to three charges: (1)  Claiming to be a member of a triad society[1]; (2)  Common assault[2]; and (3)  Blackmail[3].

ADMITTED FACTS

2.X had been running a vegetable stall (“Shop 1”)  since 1991 and it was closed in 2011 due to the problem of working capital. All the outstanding debts of Shop 1 had been settled at the time it was closed. X and Y later started to operate another shop (“Shop 2”)  in Sheung Wan in 2013 and there was no outstanding debt for Shop 2.

3.At around 1:00 p.m. on 3 September 2021, the defendant attended Shop 2 with his male friend Mr. FU (“FU”)  and requested for payment of the debt of HK$155,500 owed to someone known as “黑鬼” or “大舊”. A total of 11 promissory cheques bearing the company chop of Shop 1 and signature of X were shown to X. X refused to make any payment as he had already settled the debts owed to the person known as “黑鬼” or “大舊” back in 2012-2013.

4.The defendant then stated to X “I am from number. Fuck you. Won’t you repay the money?” (我冧把嘅，屌你老母，你還唔還錢啊?)  (Charges 1 & 3). The defendant then pushed X on his right chest with his right hand, causing X to lose balance and his right waist to bump into the cabinet behind (Charge 2). Y then brought the defendant and FU outside Shop 2 and had a further discussion with them regarding the repayment of debts. Y eventually agreed to make the repayment as she was worried that the defendant and FU would hit X again and Y was not sure whether X had settled the debt yet. X did not seek medical treatment or report the case as he was afraid that the defendant and FU would seek revenge on them.

5.In the morning of 6 September 2021, Y received a phone call from the defendant stating that he was going to Shop 2 and asking Y to prepare HK$30,000 for the repayment. The defendant later arrived at Shop 2 but Y requested the defendant to allow her some more time to prepare the money.

6.At around 11:30 a.m. on 7 September 2021, Y received a phone call from the defendant again stating that he was going to Shop 2. The defendant arrived at Shop 2 shortly and Y handed the cash of HK$29,000 to the defendant. A written receipt was signed by the defendant. The defendant further requested Y to deposit HK$1,000 into the defendant’s Jockey Club account after work, which Y complied.

7.It was the common practice for shop owners at the market to issue the promissory cheques for borrowing money from others and the cheques would be returned to the borrower once the debts were repaid.

ARREST AND CAUTION

8.At around 9:34 p.m. on 10 September 2021, the defendant was arrested. Under caution, the defendant admitted pushing X once out of anger as X was approaching the defendant.  The defendant claimed that he only intended to scare X and he was not a member of any triad society.

9.3 cautioned VRIs were conducted with the defendant on 11 September 2021 in which he stated, inter-alia, that :

i)  He went to the material location with Fu for debt collection;

ii)  The defendant pushed X in the area between chest and shoulder once;

iii)  The defendant stated to X “I am from number. Fuck you.” (我冧把嘅，屌你老母)  in the heat of the argument. The defendant only intended to scare X and the defendant actually did not have any triad-related background. To the defendant’s knowledge, number (冧把)  means 14K which is a triad society;

iv)  The defendant went to the market in Sheung Wan on 6 and 7 September 2021 for debt collection ;

v)  The defendant received $29,000 cash and $1,000 transfer from Y.

CRIMINAL RECORD

10.The defendant has one criminal conviction for “Criminal Damage” on 5^th February 2007. The defendant was bound over for 12 months.

MITIGATION

11.The incident occurred on 3 September 2021 at around 1 pm. The defendant was helping Mr Fu to collect a long-standing debt owed to Mr Fu’s father. Mr Fu brought along the 11 promissory cheques (total amount being HK$155,500)  which X had signed for a loan he had obtained from Mr Fu’s father many years ago. As Mr Fu was still holding the promissory cheques, this meant the debt X owed to his father was still unpaid.

12.The assault on X was momentary, sparked by the heat of the argument. It involved only a single push to the chest, causing X to lose his balance and bump into a cabinet. No injuries were sustained. It was also in this moment whilst emotions were still high that the defendant said the words, “I am number. Fuck you. Won’t you repay the money?” in Chinese. The defendant and Mr Fu almost immediately left the shop at that time.

13.Arrangements were then made for X and Y to make payments on the loan. It should be noted that even before any offences that had taken place, X and Y were prepared to repay some amount on the loan but the terms were not agreed.

14.When the defendant was arrested on 10 September 2021, he readily admitted his guilt to the police under caution. Similarly, when he provided three VRIs to the police on 11 September 2021, he sincerely and fully admitted his responsibility and acknowledged his wrongdoing. In his caution statements and VRIs, the defendant unequivocally denied he was a triad member; he said those words in the heat of the moment only to scare X. There is no evidence that the defendant is or has ever been a triad member.

CIRCUMSTANCES OF THE DEFENDANT

15.From the many letters of support the defendant has obtained, it is readily apparent that he is a devoted son and nephew and a person of good character. What happened in those few seconds on 3 September 2021 was completely out of character and shocking to those who know him.

16.The defendant has one previous conviction for criminal damage to property back in February 2007.  Defence submitted this previous conviction was so dated and unrelated to the present offences that the defendant should be treated as a person of clear record and good character.

17.The defendant was born in Hong Kong on 6 September 1983. The defendant experienced hardship whilst growing up.  In 1995, the family moved to England. His older brother moved earlier and started a business there. However, things did not work out as planned. His parents moved back to Hong Kong in 1998. The defendant then lived with his brother but they had a poor relationship, and his brother would often physically beat the defendant. When the defendant could no longer stay with his brother, he moved out to live with an uncle who had eight children. To support himself, the defendant began working in restaurants. He left high school after Grade 9 and started to work full-time as a chef in around January 1999. He worked in different Chinese restaurants in England.

18.In 2011, the defendant’s father passed away. In the following year, he decided to return to Hong Kong to look after his mother. Without a high school diploma, the defendant struggled at first to make a living. From 2013 to 2019, he worked as an attendant at a licenced mahjong parlour. Then Covid-19 hit and he had to leave his job as the parlour became inoperable. Since then, he has been unable to hold down a permanent position; he has carried out HKTV Mall deliveries, become a licenced security guard, worked as a waiter, and finally now is working as a substitute chef in a cha chaan teng in Kowloon. His monthly income is roughly HK$12,000.

19.The 10 reference letters presented to the court all speak emphatically of the defendant’s filial piety and his genuine care and concern for others, especially the elderly. In his own letter to the court, the defendant says he learned a “profound lesson” from this incident. He recognises that he committed a “serious offence” and feels “very remorseful”. He swears he “will not commit offence again in future”; he hopes he “can return to society as soon as possible and take good care of [his] parents and family”.

SUBMISSIONS ON SENTENCE

20.Defence submitted the present case is a little unusual in that it has qualities of two different kinds of blackmail cases commonly seen in the courts. The first kind is the protection money demand cases with triad overtones. The second kind is the cases involving a demand to repay a debt. These latter cases involve a legitimate demand for money but made using improper means. The first kind of cases involve no legitimate demand, being a naked extortion and appropriation of money. For this reason, the first kind of cases tend to be more serious than the second. Defence submitted the present case essentially comes within the second categorially but has the elements of triad overtone and use of force typically associated with the first kind of case.

21.The Court of Appeal’s judgment in HKSAR v Fong King Choi[4] provides useful guidance for blackmail cases of the first kind, i.e. protection money demand cases. In these types of cases, the Court noted that the following “factors bearing on the gravity of the offence”: -

“(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.”

22.When applied to the circumstances of that case, the Court of Appeal held that a 3-year imprisonment starting point was too high and that a more appropriate starting point was 21 months’ imprisonment.

23.Turning to the blackmail cases of the second kind, defence submitted two District Court judgments of relevance. HKSAR v Khan Amjad (unreported, DCCC3/2012, 13 February 2012, Joseph To DDCJ)  and HKSAR v Lau Ming Tsun (unreported, DCCC43/2015, 15 April 2015, G Lam DCJ).

24.In respect of the present case, defence submitted it is one at the ‘lower end of the scale’ of culpability for the offence of blackmail. It was entirely motivated by a desire to help a friend collect a genuine debt. Thus, the present case does not have the aggravating qualities of ‘tor dei’ protection money demand cases. However, physical force was used and a claim of being a triad member was made. Also, HK$30,000 was obtained from X and Y who paid the amount partly to pay off the loan and partly out of fear of being hit again. These are the aggravating features of the present case. Nonetheless, it is submitted these features must be viewed in their proper context, that the force used and claim made were sudden actions arising only because there was a heated argument occurring at the time. Neither the defendant nor Mr Fu set out to use force or threats to collect the loan. The defendant’s confessions to the police a few days later clearly shows his regret and remorse for his actions. With reference to the authorities cited, defence submitted a starting point sentence of approximately 18 months’ imprisonment would be appropriate in the present case.

25.Furthermore, it is submitted the defendant’s timely guilty plea and demonstration of genuine remorse warrant the usual one-third discount from the starting point sentence.  The defendant also respectfully asks the court to take into account the positive evidence of his good character and the real need for him to take care of his elderly mother and aunt. Importantly, this will be his first ever experience of imprisonment. It has been held that as a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionately to the gravity of the offence, and imposed for reasons of general deterrence[5]. In the present case, the defendant has clearly learned his lesson and it will not require a long sentence of imprisonment to deter him from future offending. The shame of these offences, having now informed his many family members and friends, will certainly keep him in check in the future, if not for the rest of his life.

26.Finally, as for totality, defence submitted that the sentences for the three offences should be ordered to be served concurrently. It is submitted the present case is, in substance, one single transaction of offences and the defendant should be sentenced accordingly.

27.Background report was obtained and in general it supports the mitigation submitted.  I will not repeat the contents herein.  The defendant has never been in prison before.  From the mitigation letter he wrote, his current remand has already taught him a great lesson.

ANALYSIS

28.The offence of common assault carries maximum terms of imprisonment of one year[6]. The offence of claiming to be a triad member has maximum terms of imprisonment of three years (for a first conviction)[7]. The offence of blackmail has a maximum sentence of 14 years imprisonment[8]. There are no tariffs for these types of offences. 

29.Defence rightly pointed out that the present case has qualities of two different kinds of blackmail cases commonly seen in courts.  The first being the protection money demand cases with triad overtones.  The second is the cases involving a demand to repay a debt. 

30.The two district court authorities submitted by defence relate to the second type of blackmails. For the first type, I have considered the following authorities. In the case of HKSAR v LUI Chun-yeung [2014] 2 HKLRD 993, the appellant threatened to collect a monthly protection fee at $300, if the victim refused to pay, to set her salon alight, as had happened to a nearby shop. Demands for protection money were considered to be mark of triad activity not least when the demand was for regular monthly instalments. The Court of Appeal considered the appropriate starting point to be 3 years and 3 months’ imprisonment.

31.The case of HKSAR v WONG Fu-wa & anor[1999] 1 HKC 363 concerned two appellants. The first appellant claimed himself to be the local bully in the district and demanded from the proprietor of a bar a sum of $10,000 per month with threats. The second appellant was one of the first appellant’s ten or fifteen “brothers” present at the bar on the first occasion. The second appellant subsequently accompanied the first appellant on other occasions when the latter attended the bar. The Court of Appeal was with the view that even though the second appellant was lending support to the first appellant, there should be no disparity in sentence and considered a starting point of four years’ imprisonment was appropriate. The Court also held that “the sort of threats which were made either implicitly or explicitly caused fear and disquiet to victims. The court must take a serious view of it and demonstrate to offenders that this type of activity would not be tolerated.”

32.Both of the above authorities relate to protection money, and it shows how serious blackmail case with triad element is. I have also considered the authorities submitted by defence, including HKSAR v Fong King Choi[9]. However, the starting point of Fong King Choi of 21 months’ imprisonment is due to the particular facts of the case, as the defendant in that case was drunk, acting alone and asked for $100 only. Also, the staff in that convenient store (the victims)  were always in control of the situation.

33.Defence also relied on the case of HKSAR v Khan Amjad and HKSAR v Lau Ming Tsun. However, the court noticed that the defendant in both cases never claimed or hinted that he was a member of triad society. In Khan Amjad, paragraph 23, the sentencing judge also said “And most importantly, the offences were not linked to triad activities”. Therefore, the rather low starting point in these authorities do not include triad elements.

34.In the present case, the defendant was asking for HK$155,500.00 from X and Y. The defendant did not come alone, but with Mr. Fu. Despite the defendant and Mr. Fu were claiming for a single loan repayment, the defendant went to Shop 2 twice afterwards to collect HK$30,000. At the time of offence, the defendant claimed to be a triad member and pushed X on his right chest, causing X to lose balance and bump his right waist into the cabinet behind. As a result, the victims gave HK$30,000 to the defendant.

35.Defence suggested that the defendant was helping to claim a genuine loan, which was a personal loan, rather than loan related to Shop 1 and 2. Since they had the promissory note with no contradictory evidence, I accept defence assertion. I also accept this is not a case of protection money.

36.I also accept the defendant did not initially intend to use triad background to collect the debt. From the conversations heard in the video, the offence date was not the first time the defendant was there. There is no evidence to suggest that he claimed to be a member of triad society before. Only afterwards, when X refused to pay, did the defendant say the material words. However, even if the triad membership claim came after X’s refusal, and it was resulted from the heat of argument, it is still a serious offence. Also, pushing against an elderly , X , made the offence worse.

37.I do not accept the defendant was provoked. The defendant came in with full force to collect money, in an intimidating manner. X refused to cooperate under the defendant’s intimidation, I do not think X’s refusal can amount to provocation.

38.From the video played in court, one can see they were arguing about the loan, which X, or Y, in particular, was willing to discuss to repay. However, the defendant was forcefully arguing, with mention of “我都唔帶人落嚟”, which indicated he could have brought more people along to intimate X. Given the age of the victims, obviously the defendant was trying to intimate them.

39.In gist, the defendant came with another person to collect a large sum of money, a genuine debt in an intimidating manner from X and Y. After X refused to pay, the defendant then claimed to be a triad member and pushed X. X was 71 years old at the time. The defendant later on received $30,000 from the victims. These are all aggravating factors. Even if the defendant, as claimed, was not a triad member, no matter how one looks at it, this is a serious offence. In the circumstances, I am of the view immediate imprisonment is the only sentencing option, and the following starting points should be adopted:

i)  Charge 1 – 12 months’ imprisonment;

ii)  Charge 2 –3 months’ imprisonment; and

iii)  Charge 3 –2 years and 6 months’ imprisonment.

40.Given his timely plea, 1/3 discount is given. He has one criminal conviction in 2007, resulted from a minor domestic dispute. He had never been in prison prior to the current remand. I have also considered the mitigation submitted, in particular his good character praised by his references. I will give him 1 month, 1 week and 2 months’ discount respectively. Therefore, the sentence for each offence is:

i)  Charge 1 – 7 months’ imprisonment;

ii)  Charge 2 –1 month and 3 weeks’ imprisonment; and

iii)  Charge 3 –18 months’ imprisonment.

41.I considered the three offences occurred at the same time, and are part and parcel of a single transaction. Therefore, I will order that all sentences to run concurrently. The defendant is sentenced to a total of 18 months’ imprisonment.