HKSAR v. Ng Wing Lun

DCCC 667/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.667 OF 2012

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Reasons for Sentence

1.The defendant pleaded guilty to two charges of Inviting a person to become a member of a triad society, contrary to s.22(2) of the Societies Ordinance, Cap.151 (charges 1 and 6); two charges of theft contrary to s.9 of the Theft Ordinance, Cap.210 (charges 2 and 3) and two charges of Blackmail, contrary to s.23(1) and (3) of the Theft Ordinance (charges 4 and 5). The defendant pleaded not guilty to one charge of burglary contrary to s.11(1)(b) and (4) of the Theft Ordinance but guilty to the lesser offence of theft (charge 7).

2.The defendant is convicted of charges 1 to 6 upon his guilty plea and admission to the summary of facts. The defendant is acquitted of the charge of burglary but convicted of the lesser offence of theft in relation to charge 7 as accepted by the prosecution.

Summary of Facts

3.At about 9am on 6^th May 2012, 15 year old male X was on his way home in Ap Lei Chau when he was intercepted by the defendant to told X to follow him to a park nearby to have a chat.

Charge 1

4.When there, the defendant asked X if he was following anyone to which X answered no. The defendant then claimed himself to be “Tiger” and a follower of “Leung Gor” of the Wanchai “Wo Hop To” triad society. The defendant invited X to be his follower and become a member of “Wo Hop To”.

Charge 2

5.The defendant then told X to follow him to meet with the defendant’s “big brother”. They went to a place outside Aberdeen Tennis and Squash Centre. The defendant told X that the big brother will install an application on X’s mobile phone so that they could track the location of X. X was afraid that the defendant might beat him up and so he handed over his mobile phone to the defendant when asked to do so. The defendant took the phone and went away.

Charge 3

6.6 days later on 12^th May, X was leaving his home when he was intercepted by the defendant at the lift lobby at around 9am. The defendant told X to follow him to meet with his big brother and led X to a place outside the Aberdeen Tennis and Squash Centre again.

7.When there, the defendant told X to hand over his wallet. Again for fear of being beaten, X handed over his wallet. The defendant searched the wallet and took X’s bank card and told X to tell him the password. Fearing that he might be beaten up, X gave the defendant the password. The defendant then went away.

Charge 4

8.1 day later at about 8am on 13^th May, the defendant suddenly appear outside X’s home just when X was returning home with a friend. The defendant sent the friend away and told X to follow him to meet with his big brother. The defendant then led X to outside the Aberdeen Tennis and Squash Centre and demanded for X to give him $1,000.

9.X told the defendant he did not have the money but the defendant repeatedly demanded X to give him the money. The defendant eventually lowered his demand to $300 and told X that he would not let him leave unless he paid up.

Charge 5

10.X had to borrow $300 from a friend who deposited the money into X’s bank account. The defendant then took X to an ATM where the defendant took out X’s bank card from the defendant’s own bag and used the bank card to withdraw $300.

11.The defendant then requested X to provide him with some clothing from X’s home. X complied and then the defendant told X to follow him downstairs.

12.Once they were at the ground floor of Tung Sing House, the defendant demanded X to deposit another $300 into the bank account by 9am the following day. The defendant warned X that he knew where X lived as well as X’s personal information. The defendant then sent X away. X informed his mother about the matter and they reported the case to the Police.

Charge 6

13.This and the next charge involved another victim, PW2.

14.PW2 is a 17 year old male. PW2 was playing basketball in Ap Lei Chau at around 2:15pm on 8^th May 2012 when the defendant joined in to play. About 30 minutes later, the defendant told PW2 that he was “Shek Ban” of “Wo Hop To” and was the follower of “Chang Bao”. The defendant invited PW2 to follow the defendant and become a member of “Wo Hop To”.

15.The defendant told PW2 that he worked at a casino in Macau and his big brother had a dispute with someone and then the defendant threw a bomb at the casino and killed 1 and injured 3. PW2 was scared.

Charge 7

16.The defendant then told PW2 to take him back to PW2’s home which was also in Ap Lei Chau. When inside, the defendant took a screwdriver from there and prized open a drawer in the bedroom of PW2’s mother. The defendant took cash of about RMB100 from a wallet in the drawer and 27 red envelopes containing cash of $900 from the drawer. The defendant also took a pair of shoes and then left. PW2 informed his mother about the matter and they reported the case to the Police.

Arrest and confessions

17.The defendant was arrested and cautioned at around 2:15pm on 14^th May 2012 in Ap Lei Chau. The defendant admitted under caution that he had claimed as a member of a triad society and took money from 2 people. The defendant claimed that he did not have any money and had 2 sons in mainland China and he needed money for food.

18.In the subsequent video recorded interviews, the defendant confessed to committing the offences.

Previous convictions

19.The defendant had previously been convicted of theft on 2 occasions, blackmail on one occasion and robbery on one occasion.

Mitigation

20.2 letters were first of all submitted in mitigation, 1 written by the defendant and 1 from his social worker.

21.The defendant’s wife passed away in 2010 in a car accident, leaving behind 2 children, aged 5 and 9, with the defendant. They are now in mainland China and are being taken care of by the defendant’s friend.

22.The defendant committed the offences by taking advantage of 2 youngsters with no violence used.

23.Mr. Leung for the defendant submitted that the defendant just cheated X out of the phone in relation to charge 2 by saying that his big brother would be able to implement some sort of device inside the phone so that the phone can be traced.

24.Similarly, in relation to charge 1, although the defendant was committing the crime, the motive was not to invite X into any sort of triad society, the defendant just wanted to have some sort of story to cloud the mind of the young person, so as to get him to hand over his money.

25.In the statement of X, he said that the defendant had talked a lot but X did not pay attention to the defendant and found him quite boring.

26.In relation to charge 3, it is when X, in his statement, took out his wallet himself trying to put back some $10 notes that the defendant asked to see his wallet, the defendant then asked for the bank card to use. X knew there was only less than $100 inside the account so he let take away the card. Of course X did say he was worried that if he did not hand over the card to the defendant he would be subjected to violence.

27.In relation to charge 4, the defendant had told X that he was a wanted man and he needed money to abscond. It was not a case of the defendant being a big brother and so X had to pay him money and if not the defendant will do something to him.

28.In relation to charge 7, Mr. Leung submitted that the prosecution is right to accept the lesser plea. According to the witness statement of PW2, when the defendant asked to visit his home PW2 had no objection, he thought nothing of it and took the defendant back home. No threatening words were used.

29.The defendant is aged 32, he understands immediate custodial sentence will be imposed. The defendant’s guilty plea is the real mitigating factor and Mr. Leung submitted that the court should adopt the totality principle and come up with a proper lenient sentence.

Sentence

30.I accept that ultimately the defendant was using the front of being a member of a triad society to try to scare the victims into handing over money. I find that it does not, however, make him less culpable than if he was really a member of a triad society, he would just be facing an additional charge of being a member of a triad society if that was really the case.

31.The young age of the victims is an aggravating factor, especially in the case of X who was just 15 years old. PW2 is older at 17 but in front of the defendant who is 32 years old, he would also be intimidated.

32.In relation to X, it is not just a single incident of meeting with the victim and inviting him to be a triad member, the defendant repeatedly harassed the victim around his home area, no doubt causing great anxiety to X.

33.I will sentence the defendant as follows.

Charge 1: inviting to be MOTS

34.The maximum sentence for charge 1 is that of a fine of $250,000 and 5 years’ imprisonment. Unlike in s.20 of the Societies Ordinance, the law does not provide a chance for the first offender by way of a lesser maximum sentence which is higher for second and subsequent convictions.

35.I will adopt a starting point of 21 months’ imprisonment, reducing it by one third in recognition of the defendant’s plea of guilty to 14 months’ imprisonment.

Charge 2: theft

36.This is not the first offence relating to dishonesty for the defendant. He has 2 previous theft convictions and was last convicted of robbery in 2009 when he was sentenced to 40 months’ imprisonment. While he must not be punished twice for the same crime, the fact that he is a repeated offender in relation to offences involving dishonesty must be treated as an aggravating factor. Therefore despite the low value of the property stolen, I will adopt a starting point of 12 months’ imprisonment, reducing it by one third in recognition of the defendant’s guilty plea to that of 8 months’ imprisonment.

Charge 3: theft

37.For the same reason as in charge 2, I will adopt a starting point of 12 months’ imprisonment and sentence him to 8 months’ imprisonment upon his plea of guilty.

Charge 4: Blackmail

38.The maximum sentence for blackmail is that of 14 years’ imprisonment. The defendant has one previous conviction for blackmail in 2005.

39.Given the age of X and the circumstances surrounding the demand made, I will adopt a starting point of 2 years’ imprisonment, reduced to 16 months’ imprisonment upon the defendant’s guilty plea.

Charge 5: Blackmail

40.For the same reason as in charge 4, I will impose the same sentence of 16 months’ imprisonment after discounting for the defendant’s guilty plea.

Charge 6: Inviting to be MOTS

41.Given that this offence was committed under similar circumstances to that of charge 1 and given the young age of PW2, I will also adopt a starting point of 21 months’ imprisonment and reduce it to 14 months’ imprisonment in recognition of the defendant’s guilty plea.

Charge 7: theft

42.Although the value of the property stolen is not a lot, I find that the circumstances of this theft charge serious. The defendant was invited into PW2’s home, he then decided to use a screwdriver he found there to prize open a drawer to steal. The defendant is fortunate that the prosecution would accept his plea to the lesser charge.

43.Again, this is not the first dishonesty offence committed by the defendant and given the circumstances of the theft, I will adopt a starting point of 21 months’ imprisonment, reducing it to 14 months’ imprisonment in recognition of the defendant’s guilty plea.

Totality

44.The defendant has 2 young children whom he has to look after. His wife passed away while he was in prison in 2010. No violence was used in any of the offence that he had pleaded guilty to.

45.I find that in relation to the inviting to be MOTS charges, the ultimate aim of the defendant was to obtain some money from the victims.

46.Applying the principle of totality, I will order that the sentences in charge 1 to 5 to run wholly concurrently, making a total of 16 months’ imprisonment.

47.I order the sentences in charges 6 and 7 to run concurrently, making a total of 14 months’ imprisonment.

48.The defendant had chosen 2 different victims on 2 separate occasions and committed the crimes. There is no connection between the victims or the crimes that were practiced on them. The sentences ought in theory to be made wholly consecutive to each other. That would result in a sentence of 30 months’ imprisonment. But again bearing in mind the totality principle, I will order that 12 months of sentence in relation to charges 6 and 7 to be served consecutive to the sentences in charges 1 to 5.

49.The defendant is therefore sentenced to a total of 28 months’ imprisonment.