HKSAR v. Yeung Tsz Wing and Others

DCCC 706/2021 & 417/2022

(Consolidated)

[2024] HKDC 170

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 706 OF 2021 AND 417 OF 2022

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REASONS FOR SENTENCE

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Charge

1.Originally, there are nine defendants, D1 to D9.

2.The case of D4 and D6 had been severed.

3.D3 subsequently pleaded guilty and was dealt with.

4.D5 and D9 indicated their intention to plead guilty to certain charges in the plea court. They also indicated that they would give evidence against the other defendants.  So a trial date was set down for D1, D2, D7 and D8, which trial was to start in April 2023.  But before the trial was to start, D1 and D2 also pleaded guilty to their sole Charge 4, false imprisonment.  D5 and D9 pleaded guilty as indicated earlier.  D5 pleaded guilty to Charge 2, blackmail; Charge 4, false imprisonment; Charge 3, theft, was to remain in the court file.  D9 pleaded guilty to Charge 2, blackmail; Charge 4, false imprisonment; Charge 5, blackmail and Charge 6, possession of a dangerous drug; Charge 3, theft, was to remain in the court file.

5.So there remain D7 pleading not guilty still to Charge 2, blackmail; Charge 3, theft; Charge 4, false imprisonment and Charge 5, blackmail; D8 pleading not guilty to Charge 1, theft; Charge 2, blackmail; Charge 3, theft; Charge 4, false imprisonment; Charge 5, blackmail and Charge 8, blackmail.

6.D5 and D9, after pleading guilty, give evidence for the prosecution in the trial of D7 and D8.

7.After trial, D7 is convicted of Charges 2 to 5.  D8 is convicted of Charges 2 to 5 and Charge 8 but acquitted of Charge 1.

8.Today’s hearing is for the sentence of D7 and D8, both convicted after trial, and of D9 after his pleading guilty and giving evidence against D7 and D8 in their trial.  The sentence of D5, who is still 18, being a young offender, is adjourned for a further report.

Summary of Facts

9.X was a 22-year-old man in 2020.  He had been in a relationship with D7 that ended abruptly in November 2019.  His new girlfriend was Y.

10.On 14 September 2020, X found the social media account of his and Y’s had been compromised.  Someone threatened to post more sexy photos of Y and blackmailed X and Y for $5,000 (Charge 2).

11.The following night, ie, 15 September 2020, X went to meet the blackmailer.  He handed over the $5,000 to one of the gang.  Then he was lured into a taxi and taken to a hotel room in Kwun Tong for detention.  Some gangsters took turn to guard him (Charge 4).  D5 was one of the gang.

12.In the hotel room, X was made to hand over his wallet and phone (Charge 3). The wallet contained some properties of his.  X was also forced to disclose his mobile passcode.  He refused at first but was then made to speak to the boss, D8, on the phone.  D8 told X that if he cooperated, he would be safe. Otherwise, he (D8), could not tell what his boys would do to X.  X was frightened so he gave his mobile passcode, together with his wallet and phone, to the gang.

13.The following morning, ie, 16 September 2020, someone sent blackmail messages to X’s mother, Madam A.  The blackmailer demanded $6 million for X’s release (Charge 5).  The blackmailer threatened to harm X if A did not pay up. A did not pay and reported the matter to the police.

14.Sometime later that morning, X managed to escape from the hotel room. He went for the police.  D1 to D4 were arrested that day.

15.The blackmailer texted A again on 22 September 2020, reducing his earlier demand of $6 million to $650,000.  Madam A still refused to pay.

16.D5 was arrested on 4 October 2020.  Other culprits were still at large.

17.On 6 November 2020, someone sent blackmail messages to X’s father, B. The blackmailer made threats regarding X and his sister.  He demanded B to pay $1 million (Charge 8)  but soon reduced the sum to $900,000.  B did not pay and made a report to the police.

18.In February 2021, someone continued to harass Y on the internet.  Y alerted the police.  An undercover police officer posed himself as Y between 22 February 2021 and 4 March 2021 to liaise with the harasser codenamed “Blackvz”.

19.On 9 March 2021, D6, D7, D8 and D9 were arrested respectively.

20.In D8’s residence, the police found X’s iPhone 7 plus (Exhibit P1)  which service number had been changed.  X had lost P1 since January 2020.

21.The police found relevant communications in P1, D7’s own phone and D8’s own phone.

22.D8 was the new boyfriend of D7.  He was “Blackvz”.  He and D7 were in joint enterprise and masterminded the crimes in Charges 2 to 5.  D7 provided information and finance while D8 recruited D9 to execute those misdeeds. D9 in turn recruited D5 who brought in others for the false imprisonment of X in that Kwun Tong hotel in mid-September 2020.

23.On 8 October 2020, D7 expressed to D8 her wish to opt out of the matter, at least for the time being.

24.D8 nevertheless persisted and blackmailed X’s father, B, on his own in Charge 8 on 6 November 2020 (see paragraph 17 above).

Record

25.D7, D8 and D9 all have a clear record.

Mitigation

D7

26.D7 is now aged 25.  She graduated from university in 2021.  Before her incarceration, she was a marketing specialist.  Counsel says D7 comes from a close-knit family, living with her parents and grandma.

27.Counsel says the saga started with D7’s breakup with X, who blackmailed D7 first by asking D7 to stop contacting him on Instagram or he would post her nude photos.  The mitigation letters from D7’s parents and grandpa reveal X had made unreasonable demands to D7, including asking her for money.

28.Counsel says X in Charge 4, false imprisonment, had only been detained for a short time.  He had not been subjected to physical abuse or injured. Counsel says the present case was not a really sophisticated crime.

29.Counsel points out that X’s parents did not pay up the blackmailer’s demand in Charge 5 and Charge 8.  D7 had gained little in the incident.

30.Counsel submits proof of D7’s academic excellence and that she had participated in voluntary services.

31.There are a number of letters from D7’s family and those related to her. All speak highly of D7 and beg for leniency on her behalf.

32.D7 is convicted of Charges 2 to 5.  Counsel says the majority of the sentences should be concurrent.

D8

33.D8 is now aged 25.  He was 22 in 2020.  He has no previous record.

34.Counsel says D8 is single.  He is living with his parents and brother. He received some higher education but quit the university after being arrested in March 2021.

35.Counsel says D8 was a resourceful and creative man.  He earned his living via online trading.

36.Counsel says D8 found his girlfriend, D7, had been bullied and threatened by X, so he gave her a helping hand.

37.Counsel says X had not been subjected to physical abuse in Charges 3 to 4 and he only lost $5,000 in Charge 2.  X’s parents also lost nothing in Charge 5 and Charge 8 respectively.

38.Counsel says Charges 2 to 5 and Charge 8 are interrelated.  Thus most of the sentences should be made to run concurrently.

39.Counsel makes no reference to any decided cases on sentencing.  He agrees each case ought to be dealt with on its own facts.

40.Counsel submits mitigation letters written by D8 and his parents.

41.In his letter, D8 took the blame upon himself and tried to exonerate D7.  I do not believe in those words at all.  D7 was certainly in joint enterprise with D8 in Charges 2 to 5.  D8 now only tries to protect his girlfriend, D7.  The two are not remorseful at all.

D9

42.D9 is now aged 27.  Counsel says D9 was an apprentice chef.  He lives with his parents.  He was arrested in March 2021 and had been detained for about 29 months before being granted bail.

43.Counsel says D9 has given truthful and valuable evidence for the prosecution in the trial, leading to the conviction of D8 and D7.  He asks the court to give D9 a 50 per cent discount including his early plea to Charges 2, 4 and 5.

44.As to Charge 6, counsel says it was just possession of 25.06 grammes of cannabis in herbal form so a short term of imprisonment will be sufficient.

45.Finally, counsel asks the court to consider the issue of totality.

Sentence

46.X’s relationship with D7 ended up abruptly in November 2019.  D8 was the new boyfriend of D7.  The two in joint enterprise masterminded the crimes in Charges 2 to 5 against X, his new girlfriend Y, and his parents, A and B.  D7 provided D8 with the information and finance to do so while D8 recruited D9 to execute the misdeeds.  D9 in turn recruited D5, who brought in others for the false imprisonment of X in that Kwun Tong hotel.

47.The blackmail of X and Y for a mere $5,000 (Charge 2)  was only part of D7 and D8’s bigger plot to take X into custody (Charge 4)  and to blackmail X’s mother, Madam A, for a much larger sum in mid-September 2020.  When X was being detained in the hotel room by the gang commissioned by D8, Madam A was blackmailed for $6 million (Charge 5).  A did not pay.  Despite the fact that X had escaped from his captors on 16 September 2020, D8 nevertheless persisted in his blackmail act though he reduced his demand to $650,000 a few days later on 22 September 2020.

48.X was kept in false imprisonment between 15 September 2020 and 16 September 2020 for about half a day by the gang commissioned by D8 through D9 and D5.  X was asked to produce his wallet and phone (Charge 3).  He was also asked to disclose his phone passcode.

49.The taking of X’s wallet and phone was part of the plot of D7 and D8 which they had commissioned the gang to execute.  D8 apparently wanted to dig more into X’s life from the contents of his wallet and phone.  He thus forced X to disclose his phone passcode.

50.Some of the gang were arrested by the police on 16 September 2020 but others remained at large.

51.On 8 October 2020, D7 expressed to D8 her wish to opt out of the matter, at least for the time being.  D8 nevertheless persisted and blackmailed X’s father, B, on his own on 6 November 2020 (Charge 8).

52.Charges 2 to 5 and Charge 8 are therefore related, while Charge 6 is a separate and distinct matter related to D9’s possession of 25.06 grammes of herbal cannabis on his being arrested on 9 March 2021.

53.Counsel for D7 and D9 have made references to a number of cases.  With respect, they are of little assistance.  There are no sentencing guidelines for any of the charges in question.  It is trite that each case has to be dealt with on its own facts.

Charge 2, Blackmail and Charge 4, False Imprisonment

54.Charge 2 was an unwarranted demand with menaces from X and Y of only $5,000.  It was the first part of D7 and D8’s bigger plot against X and X’s related ones.  D9 and D5 were in turn recruited to execute the plan.  Eventually they succeeded in taking X into custody.  X had been held captive for about half a day in a hotel room before he managed to escape.

55.Although no actual harm was caused to X, he was nevertheless restricted of his freedom and subjected to threats by the boss on the phone.  X was certainly frightened.

56.Charges 2 and 4 were premeditated and carried out with sophistication. It involved a number of culprits.  Even if X was nasty towards D7 before or after their breakup, it did not justify what D7 and D8 later planned against X, Y, A and B.  The crimes they orchestrated were merely for revenge, jealousy and mostly of greed.  The starting point for Charge 2 and Charge 4 as against D7 and D8 should each be 42 months’ imprisonment because they were the masterminds.

57.As against D9, the starting point for Charge 2 and Charge 4 should be 39 months’ imprisonment.  He played a lesser role than D7 and D8 but was still important in the plot.  He recruited D5 to execute the taking of X into false imprisonment.  D9 was a first-level recruiter.

58.D5 then recruited others for the assignment he had got from D9.  D5 was a second-level recruiter.  He brought in D1 to D4 to help guarding X at the hotel room.

59.D1 and D2 had been sentenced earlier by me on 31 October 2023.  It was then revealed that D1 brought in D2, so D1 was given a higher sentence than D2.  The starting points for their sole Charge 4, false imprisonment, were 36 months’ imprisonment (D1 as third-level recruiter)  and 33 months (D2 as pawn)  respectively.

60.The starting points for D9, 39 months as first-level recruiter and D7/D8, 42 months each as mastermind, were progressively higher because of their respective roles.

Charge 3, Theft

61.The properties stolen of X at the hotel were not of great value, but the taking of X’s phone and wallet was part of D7 and D8’s bigger plot as said. The starting point for Charge 3 as against D7 and D8 should each be 18 months’ imprisonment.

Charge 5, Blackmail

62.The blackmail of X’s mother, Madam A, for $6 million was D7 and D8’s main plot.  It was a huge demand although it was drastically reduced six days later to $650,000.  A did not pay up but she was certainly alarmed by the nasty menaces showered by the blackmailer.  The starting point for Charge 5 as against D7 and D8 should each be 54 months’ imprisonment, and 51 months’ imprisonment for D9.

Charge 8, Blackmail

63.On 8 October 2020, D7 expressed to D8 of her wish to opt out,  at least for the time being.  D8 nevertheless persisted and blackmailed X’s father, B, on his own in Charge 8 on 6 November 2020 for $1 million.  It was soon reduced to $900,000.

64.B did not pay up but he was worried by the vile threats.  D8 committed Charge 8 on his own.  The starting point for Charge 8 as against D8 should be 48 months’ imprisonment.

Charge 6, Possession of a Dangerous Drug

65.D9 was found to be in possession of 25.06 grammes of herbal cannabis when he was arrested on 9 March 2021.  It was not a huge quantity as far as cannabis is concerned.  D9 has no previous drug record.  The starting point for Charge 6 would be 6 weeks’ imprisonment.

D7

66.D7 is convicted after trial of Charges 2 to 5.  She is not entitled to any discount even though she has no previous conviction because what she committed were serious crimes (see paragraph 45, Leung Tsz Yeung and 4 Others, CAAR 1/2023).  The final sentences for Charges 2 to 5 would therefore be 42 months, 18 months, 42 months and 54 months’ imprisonment respectively. Those four offences were part and parcel of the same plot against X and his related ones in mid-September 2020.  The four terms of sentence should run concurrently.  D7 is thus sent to prison for a total of 54 month on Charges 2 to 5.

D8

67.D8 is convicted after trial of Charges 2 to 5 and Charge 8.  He is not entitled to any discount even though he has no previous conviction because what he committed were serious crimes (again, see paragraph 45, Leung Tsz Yeung and 4 Others, CAAR 1/2023).  The final sentences of Charges 2 to 5 would be 42 months, 18 months, 42 months and 54 months’ imprisonment respectively. Those four offences were part and parcel of the same plot against X and his related ones in mid-September 2020.  The four terms of sentence should run concurrently.  D8 is thus sent to prison for a total of 54 months on Charges 2 to 5.

68.Regarding Charge 8, D8 persisted with his misdeed on his own against X’s father, B.  He blackmailed B in early November 2020 after his earlier blackmail against X, Y and A in mid-September had failed.  This time, he demanded a lesser sum, ie 1 million, and soon reduced it to $900,000.  The demand was less than that he made to Madam A in Charge 5 which was $6 million and reduced to $650,000 later.  D8 committed Charge 8 on his own.  The sentence for Charge 8 would be less than that for Charge 5.  It should be 48 months’ imprisonment.

69.Considering Charge 8 was somewhat related to Charges 2 to 5, and the issue of totality, I would order 6 months of the 48 months’ imprisonment in Charge 8 to run consecutively to the 54 months for Charges 2 to 5.  D8 is thus sent to prison for a total of 60 months on Charges 2 to 5 and Charge 8.

D9

70.D9 pleads guilty to Charges 2, 4, 5, and 6.

71.Regarding Charge 2, Charge 4 and Charge 5, D9 was not completely forthcoming in his NPS given to the police but he does give credible evidence in the trial of D7 and D8.  His evidence is useful.  I shall give him around 45 per cent discount for that and for his early pleas.  The resulting sentences for Charge 2, Charge 4 and Charge 5 would be 21.5 months, 21.5 months and 28 months’ imprisonment respectively.  Those three offences were part and parcel of the same plot against X and his related ones in mid-September 2020. The three terms of sentence should run concurrently.  D9 is thus sent to prison for a total of 28 months on Charge 2, Charge 4 and Charge 5.

72.Charge 6 is a separate and distinct offence.  D9 was in possession of 25.06 grammes of herbal cannabis.  He has tendered an early plea and is thus entitled to one-third discount.  The resulting sentence would be 4 weeks’ imprisonment but that has to run consecutively to his sentences for Charge 2, Charge 4 and Charge 5.  D9 thus has to go to prison for Charge 2, Charge 4, Charge 5 and Charge 6 for a total of 28 months and 4 weeks.