HKSAR v. Woo Yiu Kong

DCCC 973/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 973 OF 2010

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Reasons for Sentence

1.The Defendant faced a total of 5 counts on the indictment. He has pleaded guilty to the first count of blackmail, contrary to Section 23(1) and (3) of the Theft Ordinance, Cap. 210. The other four counts were one count of criminal intimidation and three counts of dealing with property known or believed to represent proceeds of an indictable offence, to which the Defendant has pleaded not guilty. The Prosecution invited the Court to leave these charges on the Court file, not to be proceeded with without leave of the Court and the Court acceded to that request.

2.Facts admitted by the Defendant disclose that ‘X’, referred to in the particulars of count 1, came to know a man known as ‘Bosco’ from Macau via the internet. X decided to visit Macau for sightseeing, and informed Bosco of his plan. Bosco invited X to stay overnight at his residence. On 10 January, 2010, X arrived in Macau and met Bosco, who brought X to various casinos in Macau. However X did not gamble. In the early evening, Bosco informed X that he could no longer offer him a place to stay overnight, but his cousin, Ken, could offer him a hotel to stay at a cheap rate. X subsequently met up with Ken, who persuaded X to enrol as a member of a club, telling X that with such membership, he would be given a free hotel stay, ferry tickets, a gambling account with credit facility of HK$10,000 as well as HK$1,000 gambling coupon. X agreed to sign up, and completed a registration form, providing Ken with details of his Hong Kong identity card as well as his contact details. X was then asked by Ken to gamble – he went to a casino with Ken but did not place any bets as he knew little about gambling – he simply sat at the side while Ken gambled away the chip he had earlier shown X which he claimed was worth HK$11,000. Ken then told X he had lost HK$11,000 and that he, X, needed to repay HK$10,000. After some negotiation, Ken agreed that X should repay HK$3,000. X was told that there would not be any free hotel stay and that he should make his payment when he returned to Hong Kong. X was allowed to leave Macau in the early hours of 11 January, 2010. Upon his arrival at the Hong Kong Macau Ferry Terminal in Hong Kong at about 0230 hours, the Defendant approached X and told him that he was asked by someone in Macau to collect money from him. X then withdrew HK$3,000 cash from an ATM machine at the Shun Tak Centre using his HSBC bank card. When X was ready to pass this sum to the Defendant, he was told by the Defendant that he was required to make the payment at the Defendant’s office in Causeway Bay. The Defendant then brought X to the taxi stand at Shun Tak Centre, where they were joined by a man, referred to as WP1. The party then took a taxi to the Tsui Wah Restaurant in Causeway Bay. Another man, referred to as WP2, joined the party when they were inside the restaurant. WP2 claimed that to complete the repayment procedures, X would have to provide further personal details – X complied. X indicated that he wanted to settle the payment of HK$3,000. WP2 refused and claimed he had been told by the people in Macau that the sum owed was more than $3,000. WP2 told X in the presence of WP1 and the Defendant that he had to pay HK$150,000 and warned X that if he failed to do so, they could not rule out the possibility of locating his family members, going to his place of work or splashing paint on him, and that X would not be able to get away from paying them HK$150,000. Out of fear, X agreed. He asked to retrieve his credit cards from his home to make payment. The Defendant and WP2 told X they did not want to visit X’s home and disturb his family in the early hours of the morning, and that all of them would go to a sauna in Causeway Bay and rest and go to X’s home later. They arrived at the sauna at 0500 hours and stayed there till 0745 hours. The Defendant was with X throughout. After leaving the sauna, the Defendant brought X to an ATM machine in Causeway Bay Plaza and told X to withdraw as much cash as possible from the ATM machine – X withdrew HK$17,000 cash and handed it to the Defendant. The Defendant brought X into McDonald’s in the Causeway Bay Plaza and they met WP1 and WP2 again. WP2 told the Defendant and WP1 to accompany X to his home to retrieve his credit cards. The three then took a taxi to X’s home. WP1 waited outside the building while the Defendant accompanied X into his home. After retrieving the credit cards, the three men took a taxi to Kwun Tong, where the Defendant suggested that X use his credit cards to purchase gold ornaments in lieu of cash to settle the payment. Accompanied by the Defendant, X purchased a number of gold ornaments using his credit cards, totally valued at HK$99,956, and handed these gold ornaments to the Defendant after each purchase. X was then taken by the Defendant to a McDonald’s in Kwun Tong where they met WP1 and WP2. X indicated that the credit limits on his credit cards had been reached. WP2 told X he was satisfied with what had been paid and X was allowed to leave. X returned home and made a report to the police. The Defendant’s identity was revealed after CCTV footage retrieved from Shun Tak Centre and the three jewellers in Kwun Tong were reviewed. The Defendant was arrested in the vicinity of Shun Tak Centre on 22 July, 2010, and remained silent under caution. He was positively identified by X at an identification parade that was held.

3.The Defendant has a clear record. He is aged 41 years and divorced. Counsel submitted that the Defendant has no children. His father is aged 77 years and is retired, while his mother, aged 70 years, is a housewife. Both are not in good health and the Defendant cares for them. Both were in Court to show their support of the Defendant. The Defendant used to be a waiter but was laid off in September, 2009, and has been unemployed since, relying upon his savings. His friend knew of his financial difficulties and offered the Defendant HK$2,000 to collect money from the victim. The Defendant foolishly agreed. He is now remorseful, as reflected by his plea, which has saved the Court’s time and saved costs. Counsel sought leniency on behalf of the Defendant. The jewellery, valued at HK$99,956 and the cash HK$17,000 handed to the Defendant by X has not been recovered. Counsel submitted that these were all handed to WP1 and WP2 – the Defendant was paid HK$2,000. Any restitution is unlikely.

4.I adjourned the matter until today, calling for a Background Report. No issue has been taken with the contents of the report, which discloses that the Defendant has lived apart from his parents since 2002, and lived in Mainland China most of the time except for a few months when he lodged at his place of work, a restaurant in Lamma Island, from June to September, 2009. The restaurant closed down because of poor business and the Defendant remained unemployed thereafter. Prior to that, he had worked in various fields, including working as a tourist guide between 1992 and 2004. He accrued credit card debt from making purchases, which he was unable to settle, and also he was fond of gambling – football matches and horses as well as in the casinos of Macau and other countries. His parents and elder sister had helped him to clear some of his debt. The parents, when interviewed by the probation officer, said they knew little about the Defendant’s employment or address as he had lived apart since 2002. They told the probation officer that they hoped the Defendant had now learned his lesson and would lead a proper life in future.

5.There is little mitigation of weight before me save for his plea. I accept what was put forth on his behalf – that he is now remorseful, and realises the seriousness of the offence.

6.This is a usual scam that is operated on many people who visit Macau. An extensive network is involved in perpetrating these scams. There are people involved in Macau, and then when the victims return to Hong Kong, there are people who take over the operation. I am quite sure that the people on the Hong Kong side know exactly what is happening and how these scams are operated and the victims duped. The Defendant was present when X was threatened that he had to pay HK$150,000 – they had his contact and personal details and threatened that they could not exclude that they might locate his family members, or go to his place of work or even splash him with paint. This must have been a terrifying experience for X. The Defendant said to the interviewing probation officer that he accepted the suggestion of taking up a job as a debt collector to earn some money as he was unemployed – he said he played a passive role of rendering escort service for others of a loan disbursement party in the process of settling the debt relating to the victim. His role in my view was not merely as an escort – he met X when he returned from Macau – he took X to withdraw money from ATM machines, he took him to meet WP1 and WP2 – he was there when the so called debt suddenly rose from HK$3,000 to HK$150,000, he was with X throughout the period, even going with him to his home to retrieve the credit cards, and suggested that the credit cards be used to buy gold ornaments to settle the payment. He received the money and the gold ornaments.

7.This is a serious offence – immediate custodial sentences are inevitable, even for first offenders. The Court of Appeal, in HKSAR v. Lim Hay Bun, Benny, CACC 213/1999, dismissed an appeal against concurrent sentences of 3½ years imprisonment imposed after trial on the Appellant for offences of false imprisonment and blackmail where the victim was alleged to have incurred debts at gambling in casinos in Macau, and brought back to Hong Kong, where he was handed over to the Appellant and threatened by the Appellant and others to pay the alleged debt. Woo J., in delivering the judgment of the Court, said:-

“22.  Each case must be looked at on its own facts.  The offences involved in the present case committed by loansharks or their associates have not been infrequent occurrences in Hong Kong.  Even the Judge said that the circumstances of these offences were typical of cases which were very familiar to those who sat in the District Court.

23.  The loans which Lau was alleged to have owed to those in Macau are unenforceable in Hong Kong because they were incurred in or for gambling.  It is unfortunate that people like the Appellant and the two Defendants in this case are prepared to assist in the collection of such loans, very often using unlawful means to do so.  As the judge had said, those who do and attempt to enforce such loans by illegal means, and in particular by the sort of means adopted in this case, false imprisonment and blackmail, will be severely dealt with by the courts in Hong Kong.

24.  Moreover, the loan, which was at the most totalling $200,000, had become $320,000 within a day.  By whatever calculation, that loan was increased by $60,000 for the alleged lenders and another $60,000 for the collection service in which the Appellant was involved.  This cannot be amply described by the word ‘extortion’.

25.  In our view, despite the absence of any claimed triad involvement, the sentence of 3½ years in all for the Appellant is in no way excessive.  Had any triad element been introduced or any physical violence used, we are of the view that a longer term of sentence should be passed.”

8.Here, there is no suggestion of any triad element, nor was any physical violence used. Having considered all the matters put before me in mitigation by Counsel as well as the contents of the report before me, I take as a starting point 3½ years’ imprisonment, discount this by one-third to reflect his plea, which in my view is the only mitigation of weight before me, and sentence the Defendant to 2 years and 4 months’ imprisonment.