HKSAR v. Khan Amjad

DCCC3/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3 OF 2012

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Before: Deputy District Judge Joseph To

Date: 13 February 2012 at 10.45 am

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Reasons for Sentence

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1.The defendant pleads guilty to one charge of criminal damage, laid against him under section 60(1) of the Crimes Ordinance, Cap.200, and to one charge of blackmail, preferred under section 23(1) and (3) of the Theft Ordinance, Cap.210.

Facts

2.In the small hours of 26 October 2011, the defendant splashed a bottle of paint over the glass door of a real estate agency in Man Ming Lane, Yau Ma Tei.  His action was captured by a surveillance CCTV system.

3.The next day, the proprietor of the real estate agency attended Tsim Sha Tsui Police Station and was in the course of providing a witness statement when the defendant called him.  The defendant alleged the proprietor owed the defendant’s clansman some money, so his shop was splashed with paint. The defendant demanded for $20,000 to settle the matter but, after negotiation, agreed to accept $15,000 instead.

4.That evening the defendant called the proprietor again, admitted to having splashed paint over the glass door of his shop, and said the proprietor owed him money.  The proprietor promised to pay him the next day. 

5.Subsequent to the telephone conversation, the proprietor remembered a disgruntled South Asian client who was unhappy about the amount of rent he had to pay under a two-year tenancy agreement.

6.A controlled meeting was set up on 28 October 2011.  The defendant showed up at the real estate agency and said in Cantonese to the proprietor he was the person the proprietor had spoken with the previous night.  The defendant asked if the money was ready.  The proprietor stalled him, telling him to come back later.

7.When the defendant returned in about an hour’s time, the police had been waiting for him.  The proprietor gave the defendant a brown envelope, and as soon as he took it, the police revealed themselves and arrested the defendant.

8.The defendant admitted to the police he had splashed paint over the proprietor’s shop and had blackmailed him, and that he did so to collect a debt for another person.

Conviction

9.The court finds the defendant guilty as charged. 

10.The defendant has had three criminal records prior to his current conviction.

Mitigation

11.In mitigation the defence puts forward the following matters for the court’s consideration.

12.Now 36, the defendant was born in Pakistan and he came to live in Hong Kong in 1994 when he was 19. 

13.The defendant is married with three children, aged 14, six, and one.  Educated up to secondary level, he has worked as a causal worker at construction sites until his arrest for the present offences, making about $6,000 a month.   

14.The defendant was brought up in a poor family in Pakistan.  His parents having to work long hours, the defendant has received insufficient parental care and attention at home.  After his secondary studies, he was unable to secure gainful employment in his home country, so he came to Hong Kong and became a construction site worker. 

15.In 2009, he was sentenced to detention at the DATC for a drug offence.  Counsel for the defence submits that the defendant has not relapsed into drug abuse. 

16.The defence explains that the defendant committed the current offences due to a rental dispute in which the proprietor acted as agent for the landlord.  The tenant was a friend of the defendant; he suspected the proprietor had over-charged him some $600 for each month of the two-year lease period.  So he asked the defendant to chase after the proprietor for the over-charged amount. 

17.Out of misguided loyalty towards his friend, the defendant acted, counsel submits, foolishly as his friend’s collecting agent and splashed paint over the glass door of the real estate agency, and then demanded the proprietor to pay $15,000, using the words “if he did not want any trouble.”

18.Counsel submits that the paint over the glass door was removable; there was no act of violence, actual or threatened, in the two offences; the demand for payment was one-off; the defendant had not been promised and had not received any monetary reward; and the offences were not triad-related. 

19.The defendant enters a plea of guilty to the two charges, counsel submits, to show remorse.  The court is asked to grant the defendant the usual one-third discount on sentence.

Discussion

20.There is no sentence guideline for the two offences in this case, so each case depends on its own facts.   

21.The defendant’s conduct must have caused considerable anxiety on and inconvenience to the proprietor who operates a business.  The fact that paint has been splashed over the shop would most certainly raise suspicion on the proprietor’s financial status, resulting in damage to his business.        

22.Hong Kong is an international city of commerce.  The defendant’s conduct is most irresponsible and can potentially harm Hong Kong’s reputation as a safe place of business. In the court’s view, a deterrent sentence is called for. 

23.In committing the two offences, the defendant has acted alone.  No violence, actual or threatened, has been used.  The demand for payment was one-off rather than continuous and was one for repayment of an alleged debt rather than as “tor dei” or protection money.  (On these grounds, the case of HKSAR v Wong Yin Chak CACC126/2004 is clearly distinguishable.)  And most importantly, the offences were not linked to triad activities. 

24.Having considered all the circumstances, the court considers a starting point of 18 months would be appropriate for each of the two charges in this case, which is reduced by one-third on account of the defendant’s guilty pleas to one of 12 months’ imprisonment. 

25.The two offences formed part and parcel of the same criminal enterprise.  In view of the totality principle, the court orders that the two sentences should be served concurrently. 

26.In sentencing the defendant, the court has taken into account the proprietor’s forgiving stance, but is of view that public interest lies in favour of a sentence with sufficient deterrence.

Order

27.For the two offences of which he stands convicted, the defendant is sentenced to a term of imprisonment of 12 months.