HKSAR v. Tsang Jack-sheng

DCCC 1175/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1175 OF 2012

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to three charges before this court. The first two charges are blackmail, contrary to sections 23(1) and (3) of the Theft Ordinance, and the third charge is that of criminal intimidation, contrary to section 24(a) and (2) and 27 of the Crimes Ordinance.

2.I turn to the facts of the first charge.

3.On 31 March 2012, you, together with Chin Kwok-leung, Chin Kwok-fai and other persons unknown, in a group, visited a hawker stall in Temple Street, Yau Ma Tei, operated by a person called X.  At about 9 pm that evening the whole group claimed to be from the triad society of Wo Shing Wo and demanded X to pay them a monthly protection fee, otherwise in commonly known in Chinese as demanded of “Tor Dei” of HK$2,500.  X did not reply and the group then began telling off the customers who were at the stall and threw goods onto the ground and scolded X demanding her to pay.

4.In respect of Charges 2 and 3, that is the blackmail and criminal intimidation charges, this incident happened on 24 August at the same stall, approximately 5 months after the first incident against X. This time her nephew, Y, was assisting his aunt at the stall.  You then approached the stall and demanded him to pay up.  When Y asked what the payment was for, you told him it was Tor Dei or protection fee.  Y did not reply and you left the stall, threatening Y by saying, “Just you wait.” 

5.Around 15 minutes later you returned to the stall with a metal rod about a foot and a half in length and menacing said to Y that if he refused to pay you will hit him.  On saying this, you then struck the rod towards Y but missed him.  You then began swinging the rod inside the stall, knocking down goods from the stall onto the ground. Thereafter you left, claiming that you would return to look for Y’s boss later. 

6.You were subsequently identified by both X and Y, the operators of the hawker stall, in an ID parade.

7.Defendant, your solicitor Mr Tam Lai-shing has made full and thorough mitigation on your behalf and I have taken into account all that he has had to say.

8.You are 30 years of age and single.  You have five previous convictions.  One is in relation to violence, that is wounding with intent, contrary to section 17, which was back in 1998, otherwise you have no previous similar convictions.  You were last released from prison on 14 December 2005, when you were sentenced for an offence of infringing copyrights.

9.Mr Tam has informed me that you live with your parents who are unemployed and who are 75 and 56 years of age.  They have I believe just entered the court room now. 

10.Since you left school and attained education up to Form 3 you have been working in a Japanese restaurant as a sushi chef.  You made contribution to your parents’ living from your salary.

11.Mr Tam informs me that you are deeply remorseful for your misdeeds.  During your time since you have been incarcerated for this offence you have reflected on your bad conduct and you have pleaded guilty so as to eliminate the victims stress of giving evidence in court. 

12.Mr Tam has asked me to take into account the totality of sentence and accepts that the general guideline for blackmail with triad links is one of 4 years’ imprisonment after trial. 

13.Mr Felix Tam, the public prosecutor in this case, has submitted to me the case of HKSAR v Tam Yun Chuen, CACC 118/2008, where the Court of Appeal has agreed that that is the proper sentence after trial.  Each case, however, as Mr Tam accepts, must be decided on its own facts.

14.This case is what can be described as a typical case of triad members bullying lawful law-abiding citizens in order to extort money from them.  What triad members usually do is to approach stalls, make unwarranted demand for monthly payments and threaten them with the use of violence and the victims of the stalls are usually so scared that they fail to report and make payment. 

15.In this case, quite surprisingly, the victims did not pay.  You did not threaten to use violence in this case; in fact, at the material time you did resort to some sort of violence in that you had knocked the goods off the shelves of the stall.

16.I consider there to be aggravating factors for the first charge.  Those aggravating factors which in my view enhance the 4 year starting point is the fact that not only did you go alone, you went with a group of persons all claiming to be members of Wo Shing Wo.  At that time the stall was patronised by customers.  You and your group then started telling off the customers.  You then all began throwing or knocking the goods down from the stall onto the ground.  You were scolding X, demanding her to pay.  This was an audacious and intolerable act.  I am somewhat astonished and surprised that X did not pay you despite what happened.  Nevertheless, she was brave enough to report the matter to the police. 

17.For these aggravating factors, I consider an enhancement of the starting point by a further 6 months to be appropriate to one of 4½ years.

18.For Charge 2, you went back to the stall, this time on your own.  You again asked for Tor Dei.  When the nephew did not pay up, you then returned in an aggressive, violent, bullying manner with a dangerous weapon in the form of a metal rod of about a foot and a half.  You deliberately swung a swipe at him but fortunately missed, you continued to show your aggression and used the metal rod to knock down the goods of the stall onto the ground.  I consider this type of behaviour to be extremely serious, intolerable and unwarranted.

19.In sentencing you I take into consideration the totality of all these three offences.  Had I convicted you after trial I would have considered a total period of imprisonment of 5½ years’ imprisonment as a starting point. 

20.Giving you full credit for your plea of guilty in respect of all those offences, that sentence will be reduced to one of 3 years and 8 months’ imprisonment.

21.I shall now sentence you for each charge individually.

22.Defendant, on Charge 1, I would have taken a starting point of 4½ years’ imprisonment.  Giving you full credit for your plea of guilty, that term shall be reduced to 3 years’ imprisonment.

23.On Charge 2, I would have taken a starting point of 4 years’ imprisonment.  Giving you full credit for your plea of guilty, that term shall be reduced to 2 years and 8 months’ imprisonment.

24.On Charge 3, I would have taken a starting point of 2 years’ imprisonment.  Giving you full credit for your plea of guilty, that term will be reduced to one of 16 months’ imprisonment.

25.However, given my total sentence after plea would be 3 years 8 months’, I order 8 months of Charge 2 to run consecutive to Charge 1 and the remaining terms to run concurrent to each other.  You will therefore be sentenced to imprisonment for 3 years and 8 months.