HKSAR v. Fan Wing Kin

DCCC966/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 966 OF 2009

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1. Defendant, you have pleaded guilty, albeit at a very late stage, to an offence of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance.  It is quite clear that you, it was, who played a leading role in this blackmail by going to the Fu Lai Beef Food shop initially and asking to see the boss.  Later, when the boss arrived, you demanded a one-off payment of “tor dei” of $2,800, saying that you commanded the whole street.  When the payment was refused you warned the boss not to open the shop the following day, and you also entered the shop and scared away the customers, saying that there was no more business and that the shutters would be closed.

2. You are 28 years of age and have five previous convictions, one of which I note is for blackmail. 

3. With regards to the offence, whilst blackmail is an extremely serious offence, I accept that the circumstances of this offence is at the lower end of the scale.  But there was no actual threats of violence, and the demand for protection money was in the nature of a one-off payment, rather than payment on a regular basis.  Having said that, however, local traders are entitled to do their businesses without having to worry about whether the local bully will come knocking on their door and resort to extortion.

4. Deterrent sentences must be passed in order to get the message across that this sort of outrageous loutish behaviour will not be tolerated.  Whilst you pleaded guilty, you did so at an extremely late stage.  You pleaded guilty because you were left with no choice, the 1st defendant having identified you as being the “Ah Kin” that he had referred to whilst he was giving evidence.  This, in my judgment, is not deserving in any discount in sentence.  Your late plea of guilty does not in any way indicate any sense of remorse on your part. 

5. As regards sentence, I recognise that there are no guidelines for this type of offence.  Each case must be decided on its own facts.  However, I find there to be certain similarities in the present case to the case of HKSAR v Wong Yin Chak, CACC126/2004, in that no threats of physical violence were made, there was no overt claim of a triad connection, and a one-off demand for payment was made, rather than regular payments.  In that case the Court of Appeal reduced the starting point of 4 years’ imprisonment to one of 3 years’ imprisonment. 

6. I therefore am persuaded that the proper starting point is one of 3 years, and I adopt that as my starting point in this case.  I decline to give you any discount in sentence for your plea of guilty for the reasons that I have already given. 

7. Accordingly, you are sentenced to 3 years' imprisonment.