HKSAR v. Lau Kok Wo

DCCC 400/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 400 OF 2012

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REASONS FOR SENTENCE

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1.The defendant faced 7 counts on the indictment. He admitted 3 counts of blackmail, contrary to Section 23(1) and (3) of the Theft Ordinance, Cap 212, counts 1, 4 and 6 on the indictment, 1 count of claiming to be a member of a triad society, contrary to Section 20(2) of the Societies Ordinance, Cap 151, count 5 on the indictment, and one count of criminal damage, contrary to Section 60(1) of the Crimes Ordinance, Cap 200, count 7 on the indictment. He denied one count of blackmail, count 2 on the indictment, and one count of claiming to be a member of a triad society, count 3 on the indictment. The prosecution asked that these two charges against the defendant be left on file, and I directed that these charges be left on file, and were not to be proceeded with without leave from the court.

2.The facts admitted by the defendant in respect of the three counts of blackmail admitted by the defendant are very similar. The victims in each of these charges were sex workers, and each operated a one-woman brothel on the same floor of a building in Kwun Tong.  At around 6 pm on 6 March 2012, the defendant knocked on Ms Lok Hau’s (PW1’s) door and demanded a monthly payment of $500 as a protection fee by saying to her that he was there to collect “tor dei” money and he was responsible for the whole Kwun Tong area.  If she did not pay, she would not be able to do business.  PW1 was scared, and claimed to the defendant that she had insufficient money to pay.  The defendant then demanded $200 instead.  At that time, a uniformed police officer walked past, and the defendant immediately fled (count 1).  Later that same day, at around 8:30 pm, the defendant knocked on Ms Yeung Choi-ha’s (PW3’s) door and demanded a monthly payment of $500 as a protection fee, saying he was ‘Sun Yee On’ and he would protect her afterwards.  If not, he would burn her unit.  PW3 was scared.  She claimed she had no money.  The defendant told her he would return later and left.  PW3 made a report to the police (counts 4 and 5).  ‘Sun Yee On’ is an established and active triad society in Hong Kong.  At around 9 pm the same day, the defendant knocked on Ms Li Ji-hui’s (PW4’s) door, and demanded a monthly payment of $300 as a protection fee, telling her that he would be responsible for everything and he was the big brother in Kwun Tong.  PW4 was scared and closed the door immediately.  The defendant then left (count 6).  A few hours later, at around 2:10 am on 7 March, 2012, the defendant knocked on PW3’s door again.  She did not open the door as she saw him through her CCTV and recognised him.  She made a further report to the police.  The defendant left.  Soon after, the police arrived, and together with PW3, they conducted a tour of the vicinity of the building.  At 2:44 am, PW3 pointed out the defendant to the police – he was at the junction of Mut Wah Street and Fu Yan Street.  The defendant was subsequently arrested by the police for the offences of blackmail and claiming to be a member of a triad society, but denied the offences under caution.  The defendant was brought back to the Kwun Tong Police Station, where he was remanded in a cell.  At about 7:55 am on 7 March 2012, he suddenly became very emotional, and tore a blanket that was in the cell into pieces (count 7).

3.I convicted the defendant on the charges that he had admitted upon his pleas and admission of the amended summary of facts.

4.The defendant’s criminal record dates back to 1994, when he would have been about 17 years old.  He has 22 previous convictions in 12 court appearances.  Of these, he has similar convictions for blackmail and claiming to be a member of a triad society in 1994, when he was sentenced to the Training Centre.  He also has similar convictions for criminal damage in 2004, when he was placed on probation.  He has 8 dishonesty related previous offences.  His most recent convictions are on 9 May 2012 for four counts of theft, when he was sentenced to a total of 12 weeks’ imprisonment. Although the conviction date is after the date of the present offences, the offences were committed prior to the present offences - he has been remanded in custody since his arrest on 7 March 2012 for the present offences.

5.The defendant is now aged 35 years.  He has been educated to Form 1 level.  He is a divorced man.  He has an 11 year old daughter who lives with his ex-wife, and he contributes $3,000 a month to them. He co-habits with his girlfriend and her 1½ year old son, and supports them financially, giving them $3,000 a month.  He also contributes $3,000 a month to his 67 year old mother.  After his release from prison in 2010, he worked as a shop assistant in a fruit shop run by a relative, earning $16,000 a month.  However, his relative closed the shop in February 2012 and the defendant became unemployed.  He had used up all his savings, and committed the present offences out of financial need.  Counsel submits that the defendant is in fact not a member of any triad society – his last similar triad related offence was in 1994, when he was only 17 years old.  No violence was used towards the victims, and each encounter was a short one.  The defendant is very remorseful, as reflected by his pleas.  The defendant also consented to the prosecution’s application for a compensation order of $124 for the damaged blanket, the money to be deducted from the money seized from the defendant at the time of his arrest, when he had $6,160 on his person.

6.Save for his plea, there is really little mitigation of weight before me.

7.I note the defendant has a list of previous convictions, including convictions similar to some of the present offences, albeit they were in 1994 when he was 17 years old.  He was sentenced to the Training Centre at that time.  These convictions must have brought home to him the seriousness of this type of offence.

8.I accept that there was no actual violence used on each occasion, and the amounts asked for were small, but these were to be paid monthly.  No money was actually paid to the defendant by any of the victims.  However in the case of PW3, the defendant went to her unit a second time and it was because she recognised him that she did not open the door.  The victims here were all sex workers each operating a one-woman brothel, and in my view the nature of their business makes them more vulnerable - they would need to open the door even for strangers as these could be their potential clients. The nature of the threats uttered by the defendant clearly was intended to cause fear and disquiet to the victims.  In respect of PW3, the defendant actually claimed that he was a member of the ‘Sun Yee On’, a well known triad society in Hong Kong.  The court must demonstrate that this type of activity will not be tolerated.

9.Whilst blackmail is an extremely serious offence, there are no sentencing guidelines and each case must be viewed on its own facts.  I accept that the circumstances of these offences of blackmail are at the lower end of the scale.  As counsel has submitted, no actual violence was used and each encounter was a short one – the defendant left immediately when told by PW3 that she could not pay, albeit he returned to her premises later the same night.  Having said that, however, local traders including sex workers 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.  Deterrent sentences must be passed in order to get the message across that this sort of outrageous loutish behaviour will not be tolerated.

10.Triad offences are treated seriously and attract at least a short term of imprisonment depending on the facts and the circumstances in which an accused claims or invites someone to be a member of a triad society.  There are no specific guidelines for offences of this nature except that imprisonment is appropriate.  I accept that this is not the worst of such offences – however the claim was made in the midst of a demand for protection fee.  The purpose of such utterance clearly was to cause fear to the listener. 

11.For offences of criminal damage, again there are no sentencing guidelines and each case depends on its own facts.  Here the defendant tore up the blanket whilst remanded in the cell at the police station at a time when he was very emotional.  I note that he has paid for the damage he has caused – he has agreed to a compensation order of $124 being the cost of the blanket he damaged.

12.In respect of each of the blackmail charges, namely counts 1, 4 and 6 on the indictment, I take a starting point of 3 years’ imprisonment, discount this by one-third to reflect his plea, and sentence the defendant to 2 years’ imprisonment on each count.

13.On count 5, claiming to be a member of a triad society, I take as a starting point 9 months’ imprisonment, discount this by one-third to reflect the defendant’s plea and sentence him to 6 months’ imprisonment.

14.On count 7, criminal damage, I take as a starting point 3 weeks’ imprisonment, discount this by one-third to reflect his plea and sentence him to 2 weeks’ imprisonment.

15.In sentencing, I do bear in mind the totality principle of sentence and the overall criminality of the defendant.  The blackmail and claiming offences were committed within hours of each other whilst the criminal damage offence was committed soon after his arrest.  I shall order that the sentences in all the charges be served concurrently.  I can see no further matters to warrant any further reduction in sentence.