HKSAR v. Lai Pong Fai

DCCC819/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 819 OF 2009

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance.  You have admitted that on that date at IBIZA Bar & Lounge, on the 23rd floor of Bloom House, No.2, Tang Lung Street, Causeway Bay, you made an unwarranted demand of $6,000 from Yiu Man-kin.

2.  I turn to the background of this offence.  In late 2004 the victim came to know you when he started a pub with his friends on the 22nd floor of Bloom House.  PW1 and his friends were of the view that they had to hire you to oversee the pub.  They therefore started to pay you $5,000 each month as fees.  PW1 stopped paying you the fees in August 2005.

3.At around 1 am  on 29 June 2009, you went to find PW1 and his friends.  You found them at another pub not on the 22nd floor, but on the 23rd floor which they were now operating.  This was the IBIZA Bar & Lounge.  The pub on the 22nd floor had been transferred to other people.  You demanded from PW1 in a threatening tone to pay you back $6,000 which represented the fees owed by PW1 to you when he was operating the pub on the 22nd floor. 

4.Subsequently, PW1 called his partners to the pub to discuss the matter with you.  He also made a secret report to the police.  A police officer arrived and posed as the owner of the pub.  He together with PW1 and the partners then continued to discuss the matter with you.  At the IBIZA Bar & Lounge, you threatened to cause trouble to PW1 if PW1 did not make the payment and further threatened to beat  PW1 and his partners up if the payment was not made.  You then left the pub.

5.  You were then arrested by police officers.  You admitted to them that you had only intended to scare them.  In a subsequent interview, you admitted under caution that you had threatened PW1 and the others when you were making a demand for payment. 

6.Mr Chang, your counsel, has mitigated fully and thoroughly on your behalf today.  You are 40 years of age, single and have 12 previous convictions of which two are similar to the present one of blackmail.  The blackmail offences were in 2000 to which you were sentenced to 15 months’ imprisonment and again in 2006 to which you were sentenced to 3 years’ imprisonment. 

7.Mr Chang has explained how you became involved with PW1 and the pub on the 22nd floor, the prosecution have no real dispute about this.  Very briefly, in 2004 when PW1 and his partners set up the bar on the 22nd floor, they had a dispute with the decoration workers.  The decoration workers then damaged some things in the pub.  One of the partners of the pub then got his father to introduce a friend who was you to those partners and PW1 to help solve the dispute and negotiate with the decoration workers.  You then went there and assisted in the negotiations with the decoration workers and PW1 and his partners.  Thereafter, the matter was resolved and PW1 and his partners then paid you $5,000 a month to oversee the pub. 

8. You were not employed there permanently, say, as a guard, but were called on from time to time when there was trouble, for example, when there were fights in the pub or quarrels, and went there to mediate.  However, in August 2005 you were arrested for the blackmail conviction which is seen on the record and were remanded in custody.  You therefore served your sentence for that blackmail and came out of jail in 2007.  And after coming out of jail, you went to China to work with your uncle.  Then you led a peaceful life there, you met a girl whom you proposed to marry at the end of the year had it not been for this offence, and you were also earning a reasonable income.

9.For two years you did not think of coming back to Hong Kong.  You were earning well but you were suffering from depressive illness.  However, in June 2009 your mother who was living in Hong Kong passed away.  Therefore you came back to deal with her funeral matters.  As you needed some money to pay for the expenses of the funeral, you then remembered that you still had a debt owed to you by PW1 and his partners for work you had done in August 2005, just that month, before you were remanded.  You therefore went back to see PW1 and demanded for the $5,000 per month that you usually received plus $1,000 for severance pay.  You felt that you were entitled to this month’s pay because you had in fact completed the majority of the August month prior to your remand. 

10.  PW1 told you that the old partnership on the 22nd floor had now broken up and that you were not going to be paid.  You became agitated and you were emotional and lost control and that is when you threatened PW1 with menaces.

11.  You fully regret what you have done.  You are remorseful.  I accept that you have shown your remorse through your plea of guilty.  You have told me through Mr Chang that after your serving this sentence, you will return to China to help your uncle at his organic farm which is more peaceful and away from the troubles of Hong Kong and lead a law-abiding life in China. 

12.Mr Nicholas Wong, the Public Prosecutor, submitted a case to me for my reference, that is HKSAR v Wong Fu Wa and Chan Tak Wing, Criminal Appeal No.383 of 1998.  In that case he says it was similar to the present case, it was a blackmail demand for looking after bars and the Court of Appeal held that the usual starting point for that blackmail, for this type of offence, involving triad matters, was 4 years’ imprisonment as a starting point after trial. 

13.Mr Chang has sought to distinguish this case from the present case in that he says that in Wong Fu Wa, that is a triad blackmail case where defendants go and demand money from pubs or bars in a threatening manner with no connection at all.  That is the usual type of extortion of protection money.  Whilst in your case, there was a genuine disagreement at first with the decoration company and the partners had asked for your assistance to negotiate.  You were then paid a regular monthly amount of $5,000.  And you felt that you were genuinely entitled to the last month in August. 

14.I accept Mr Chang’s mitigation that this takes it out of the usual norm of blackmail extortion of protection money.  And I also note that in this case before me that there is no link at least to any triad matters.  There is no mention that you belong to any triad society or any matters.

15.I consider, given the facts of this case, however, that a starting point of 3 years after trial is appropriate.  However, I also take into account an aggravating factor is that you do have two previous offences of blackmail and the last being back in 2006 of which you were sentenced to 3 years’ imprisonment and not long after you had been released from prison, you then committed this offence, similar offence again.  So for that reason, I would also increase that by a further 3 months’ imprisonment.  That makes a total of 39 months’ imprisonment after trial as a starting point.  However, giving you full credit for your plea of guilty, that term shall be reduced to 26 months or 2 years and 2 months’ imprisonment.