HKSAR v. Parvez Bilal

DCCC 9/2023

[2024] HKDC 404

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 9 OF 2023

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REASONS FOR SENTENCE

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1.The defendant faces five charges on this charge sheet. charges 1 and 2 are inviting a person to become a member of a triad society committed on the 3^rd and 11th days of May and the 3^rd, 4^th and 5^th charges charged defendant with acting as a member of a triad society on 16 May, 12 June and 13 June and it is occurring in close proximity to one another.

2.The offences arise out of a police undercover operation in 2017 called “Operation Blaze Shadow”.  PW1, a police officer, infiltrated different triad societies to collect evidence and he evidenced the offences that were committed by the defendant on this charge sheet as follows.

3.First, in respect of charge 1, on the inviting charges that occurred at a J NET cyber café in Kwun Tong on 3 May 2017, the defendant told PW1 that his big brother of Lo Sun named “Sky” was a good person and he would introduce Sky to PW1 later.

4.Charge 2, the same charge, inviting, PW1 met defendant in Kwun Tong in a shop.  Again, during conversation the defendant told PW1 he would introduce the defendant to follow Ah Cheung of “14” who was his big brother and he would introduce another big brother named Sky to PW1 to follow.

5.The 3^rd charge, alleging acting as a member of a triad society, occurred on 16 May 2017.  PW1 received a call from the defendant asking him to answer the “blow whistle” and participate in a fight.  PW1 declined.  Defendant later said PW1 was summoned for a fight but the matter was settled.

6.Charge 4, on 12 June 2017, in acting as a member of a triad society, defendant introduced PW1 to a male, or Sky Gor, Brother Sky of “Lo Sun”.  Sky Gor allowed PW1 to follow him.

7.Finally, the 5^th charge on 13 June 2017, defendant talked to PW1 in Sau Mau Ping, warned PW1 “You should not follow others but he would follow Sky” and the defendant would chop PW1 if he found out that PW1 was following others, so this charge was a threat of violence.

8.The triad expert has set out the triad nature of the various utterances by the defendant, none of that is in dispute.  Defendant in a video-recorded interview admitted being a member of the Sun Yee On or following Sky.  He admitted the conversations had occurred in charges 1 to 4.

9.As far as his background is concerned, defendant is 28 years old.  He is born in Pakistan, married.  On 25 October 2023, he was sentenced to a total of 80 weeks’ imprisonment in the Kwun Tong Magistrates’ Court for the offences of trafficking in a dangerous drug and three offences of acting as a member of a triad society.  Those offences will become relevant by sentencing exercises. It is clear that these offences and the offences in the Magistrates’ Court arose effectively out of exactly the same operation and are in in fact a coherent whole set of offences committed at a particular time in May and June of the year 2017.  At the time of these offences in 2017 the defendant had a clear record.

10.There are various approaches to sentencing that I must just outline.  As far as the guidelines are concerned, there are guidelines for the offence of inviting to join a triad society.  We see that set out in HKSAR v Wong Sing Chi and Others at CACC 245/1999 where a starting point of 18 months was considered appropriate for the offence.  In that case the sentence was not disturbed where there is a 3 month deduction for a clear record such as the defendant has here.  For acting or claiming MOTS, there are a number of categories in this second set of offences.  We see HKSAR v Choy Ka Fai [2011] 2 HKLRD 150, for example, “blowing the whistle”, the starting point of 15 months for an officer of a triad society and 9 months for an ordinary soldier of a triad society.  Again, claiming membership of triad society in a social setting has a starting point of around 3 months’ imprisonment.  Public acts of triad membership can lead to starting points up to 2 years’ imprisonment.

11.The specific considerations in these offences, charges 1 and 2 of inviting, there is no conversion, coercion or intimidation, and the usual starting point would be in the region of 15 months’ imprisonment.

12.Charge 3, the “whistle blowing” offence, the normal starting point would be in the region of 9 months’ imprisonment.

13.On charge 4, conversations in a social setting, the starting point would be in the region of 4½ months’ imprisonment.

14.Charge 5, here is a more serious threat of violence in the conversation but it’s still a conversation, a starting point in the region of 6 months’ imprisonment could be contemplated.

15.In respect of these offences I must also consider another sentencing factor which is the offences that relate back to 2017 so they have to a certain extent become stale and I also must consider the sentencing in the similar offences in 2023 by the Magistrate in the Magistrates’ court.  In the earlier case as I have mentioned already, the Magistrate sentenced the defendant to a total of 80 weeks’ imprisonment.  He did it as follows.  On the 1^st charge of trafficking in dangerous drugs, a sentence of 80 weeks’ imprisonment.  On the one offence of acting as a member of a triad society, 16 weeks’ imprisonment. The 3^rd offence, which was acting as a member of a triad society, 12 weeks’ imprisonment and the 4^th offence, acting as a member of a triad society, 12 weeks’ imprisonment.  All sentences to be served concurrently to a total of 80 weeks’ imprisonment.

16.As I have already noted, these cases arise at the same investigation as the incident case, the offences are around the same time period as the incident offences.  They were not tried together partly because the defendant initially entered a plea of guilty to these offences, the instant offences, but later reversed his position to a plea of not guilty but later indicated a plea of guilty again.  I am told by defence this was largely to try and ensure that all the offences were tried together but it was unsuccessful.

17.In the sentencing in the Magistrates’ Court, I note the defendant was given a one month deduction from the initial starting point for the delay, for the fact that the case was stale and occurred in 2017, and a further one-fifth, or 20 per cent discount for his plea which was not a plea at the first available opportunity.  It would appear to me to be a sensible approach on the instant charges to deal with them in more or less the same way as the Magistrate did, particularly where it relates to the discount for the stale offences and the level of discount at 20 per cent.  These offences in fact occurred before the offences that were sentenced in the Magistrates’ Court are in fact slightly staler than those offences that were dealt with in the Magistrates’ Court.

18.I have already considered the appropriate starting point.  I am going to indicate the starting point in weeks because that appears to be the approach adopted in the Magistracy and makes it easier to understand.

19.I am going to take on charge 1 a starting point at 65 weeks' imprisonment.  That is going to be reduced by 5 weeks for the staleness or the delay and a one-fifth discount from that.  I am going to take the starting point at 60 weeks' imprisonment.  Then I will reduce that by 5 weeks for the delay and then a 20 per cent discount from that is an 11 week discount which leads to a final figure of 44 weeks' imprisonment.

20.The same calculation applies on the 2^nd offence, again a calculation of at least a 44 weeks' imprisonment.

21.On the 3^rd offence, taking the starting point at 35 weeks' imprisonment, leads to, after deduction for delay, leads to a sentence of 30 weeks' imprisonment.  A one-fifth discount from that 20 per cent leads to a sentence of 24 weeks' imprisonment.

22.On the 4^th offence, a starting point of 20 weeks' imprisonment, deduction for delay to 15 weeks' imprisonment.  A one-fifth discount leads to a sentence of 12 weeks' imprisonment.

23.On the 5^th offence, a starting point at 35 weeks' imprisonment, reduced to 30 weeks' imprisonment for the delay, a one-fifth discount for that leads to a sentence of 24 weeks' imprisonment.

24.So charge 1, 44 weeks; charge 2, 44 weeks; charge 3, 24 weeks; charge 4, 12 weeks and charge 5, 24 weeks.

25.I will order that all those sentences be served concurrently to each other, so we are dealing with a total sentence for these five offences of 44 weeks’ imprisonment.

26.Now I have to consider to what extent these sentences or this overall sentence should be served consecutively or concurrently or partly consecutively and partly concurrently to the existing sentences of imprisonment.  It would appear to me that the sentences of imprisonment for the triad operation, which these are, these five sentences are, should be served concurrently with the sentences for the earlier sentences, the triad offences.  I note that the Magistrate when sentencing in October 2023 ordered that those offences of acting as a member of a triad society should be served concurrently to the trafficking offence.

27.I will take the same approach then and order that these offences related to the triad activities of the defendant also be served concurrently to the existing sentence of the Magistrate and that will be my order.