HKSAR v. Chan Wai Yung and Another

DCCC672/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 672 OF 2008

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Reasons for Sentence

1.The defendants are a daughter, D1, and father, D2.  They were convicted after a trial of one count of criminal intimidation.

2.The facts as found briefly were that at about 10.15 am on 4 July 2008 they had gone with a friend to a High Style Fashion Company chasing a debt owed to them of some US$54,000.  It is very clear that money was owed to them, that even came from some of the witnesses, and apparently one of the staff of High Style - one of the witnesses again - had negotiated with D1 with respect to the amount owed. 

3.Nothing was settled, however, and D1 became emotional and said if no money was to be paid to them, or to her, she would not leave.  She had brought along a substance, which subsequently was analysed and found to be paint thinner, a highly inflammable substance.  D1 had said that they would all be doomed.  D2 had as well entered the fray and shouted loudly, “Don’t talk to them, just do it.”  It was in that context the inflammable thinner had been taken out and D1 said, “Nobody can leave.  We are all doomed together.”  D2, in order to reinforce that, had closed all the doors to prevent persons from leaving.  Eventually the bottle of thinner was taken from D1.  PW1 and 2, rightly, felt threatened and scared.  It must be indicated here D1 and D2 were smoking as well at the time.

4.It was very clear from the facts as found by me what D1 was going to do, or threatening to do, and the support lent to her by D2.  PW1 and 2 had been threatened.  D1 had admitted to police, inter alia, she wanted to set herself on fire. 

5.Neither D1 nor D2 had pleaded guilty before me but were found guilty after a trial and so therefore they cannot get any credit in respect of sentence that a plea of guilty would have given them.  Both have clear records, which I do take into account.

6.Mitigation had followed on the last occasion in which it was stressed that there is no tariff in these types of cases and each case should be decided on its own facts.  It had no triad background and, as well, D1 had the expectation of payment when she had turned up at the offices of High Style.  It was just a matter of how much.  I am told she has no business now and in further mitigation today that is stressed.  Her factories have indeed closed down and desperation had led to the commission of this offence.

7.On behalf of D2, I was told that he had merely gone with her to back his daughter up and committed the offence out of protection for his daughter. 

8.I had asked for the preparation of Background and Community Service Orders report.  They are before me today and they have been read over and explained to each of the defendants. 

9.I regard the offence as very serious.  It may be that it was, and it appears to be, that it was a legitimate debt of some amount owed by High Style to D1 and there was some expectation that it or some of it was to be paid, but because it was not is no excuse for acting in the way that I have found that both the defendants acted. 

10.PW1 and 2 were rightly scared and felt threatened.  This was a highly emotional, volatile and threatening scenario.  With the emotional state of D1, the presence of thinner, the threats, D1 and D2 smoking, it could have been disastrous, but fortuitously it was not.

11.On my reading of the reports prior to the further submissions today, especially with respect to D2, there was, I found, very superficial remorse shown, if any.  The only remorse there seemed to me to be the threat of gaol and D1 asking that she be allowed to care for her daughter.  D2 says it must be that he was just misunderstood, but that, of course, is clarified today in mitigation.  I am told that it must have been through a misunderstanding with the probation officer when he quoted in his report that D2 still maintains he never committed the offence.  He accepts what he did was wrong now, fully accepts the situation as found by me and what has occurred.

12.One of the key components of a Community Service Order is remorse and D1 has shown little, if any. 

13.The serious circumstances of the case, taking into account everything as I do, cries out for a custodial sentence.  In fact, when I adjourned the matter I did say that even if the Community Service Order reports were favourable, and they are only insofar as they do consider both D1 and D2 suitable for a Community Service Order, all options were available, including prison.  However, probably against my better judgment, I am going to give D1 and D2 a Community Service Order.  It is after all regarded as a substitution for a term of imprisonment.

14.With respect to D1, you will be convicted and ordered to perform 160 hours community service.  With respect to D2, you will be convicted and ordered to perform 140 hours community service.

15.I am required to warn you both that if you do not perform the work or perform it unsatisfactorily, that factor will be reported to me.  A breach of a Community Service Order that I give, if made out, would entail a custodial sentence, and I want you to clearly understand that.  Do you both?

INTERPRETER:  Both D1 and 2 understood.