HKSAR v. Cheng Fai Kin and Another

DCCC 187/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 187 OF 2013

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Reasons for Sentence

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1.Defendants, you have been jointly charged and have pleaded guilty to four offences. The first three offences are criminal damage, contrary to section 60(1) of the Crimes Ordinance. The 4th charge is one of criminal intimidation, contrary to section 24(a)(i) and 27 of the same ordinance.

2.The facts of the case in general were that you both went to flats as debt collectors dunning for the return of debts owed not to yourselves, but to a person I believe by the name of Ah Nam.  Upon arrival you made inquiries from the occupants of the flats as to the whereabouts of the debtors, however you were told by each occupant that the debtors were no longer living there.  Thereafter, you used red spray paint to spray either on the outside walls of the flats, the gates, corridors of the floors where the flats were located and wrote out the debtors’ name, either with the request for payment and/or other menacing words which I shall return to later. 

3.The 1st and 2nd charge relate to premises at Room 451, Ming Yiu Lau, Jat Min Chuen, Shatin.  On 14 November 2012 you both went to the flat there and the younger sister of the debtor encountered you both.  After you left the flat, she noticed sprayed on the wall outside the flat the words “Ho Pou-chi, repay money.”

4.Six days later, on 20 November, you returned to that same flat and this time the elder brother of the debtor noticed that on the corridors of the 4th Floor was sprayed with red paint which said, “Ho Pou-chi, repay money, Ah Nam, Room 451, harm you.”  The main gate of the premises was locked with a chain and a wire.  Although on that day you did not have an encounter with any of the occupants you were caught on the CCTV video recording of the building. 

5.Charges 3 and 4 relate to premises on the 29th Floor of Fu Tai House, Tai Wo Hau Estate, Kwai Chung.  There you did encounter the occupant of the flat.  The occupant there was the elder brother of the debtor, he told you that his brother was no longer living there.  D1, you told him that if the debtor (his brother) failed to repay the money, your brother would set fire to the premises, that is the criminal intimidation Charge 4.  After you both left, the brother noticed that the walls, the corridor and the lift lobby was sprayed with red paint.  The contents stated included the words “Room 2913 Leung Siu-kay(Siu-keung?), repay money, Ah Nam.” 

6.You were both arrested on 26 November 2012, in the building where the commission of the offences of Charge 1 and 2 took place. Upon search, D1, you were found with a digital camera and a can of red spray paint, a pair of labour gloves, a bottle of glue, a facial mask and two mobile phones.  In your possession, D2, there was a pair of labour gloves, a face mask, a mobile phone and a bicycle chain. 

7.The occupant of Charge 1 and the occupant of Charge 3 and 4 positively identified you, D1, as the person who went to the flat.

8.CCTV recordings captured you both entering and leaving the respective buildings on the day and approximate time of the above offences. 

9.D2, you confessed to the offences in interviews with police officers.  You had admitted that you were recruited by an unknown male for a debt collection job and your reward after committing the offence in Charge 1 was the receipt of $100. 

10.As for D1, you remained silent under caution, but the call records from your mobile phone showed that you had made 95 calls to the victim in Charge 1 between 24 November and 26 November 2012. 

11.D1 and D2, I have heard full and thorough mitigation from both of your counsel respectively, Mr Douglas Kwok and Mr Mak Kin-ming.  I have also borne in mind the cases they have referred me to and also the two cases to which I mentioned to them of HKSAR v Yip Kwok Hung HCMA1126/2000 and HKSAR v Chiang Tai Mei CACC288/2001. 

12.I turn first then to deal with the 1st defendant.

13.D1, you are 33 years of age and you have nine previous convictions arising from four separate occasions for which you appeared in court.  Your last conviction was a similar conviction to Charge 4, that is of criminal intimidation, to which you were sentenced to 6 months’ imprisonment on 8 February 2011. 

14.Mr Kwok has informed me that you committed this offence as you were under huge financial pressure and you needed to earn quick money to support your mother and your mentally retarded younger brother and wife.  Through your plea, you have demonstrated that you are fully remorseful for your misdeeds. 

15.The most similar case on the facts that Mr Kwok has referred me to is that of DCCC323/2011 HKSAR v Yip Sing Yeung where my colleague, my learned brother, HH Judge Frankie Yiu, sentenced the defendant on a charge of criminal damage.  That case concerned red paint being sprayed on the doors of the entrance of barristers chambers.  The judge in that case took a starting point of 15 months’ imprisonment and considered that an aggravating factor was that it was hindering the proper administration of justice. 

16.Mr Kwok has asked me to consider a lower starting point as there are no aggravating factors in this case. 

17.As for D2, you are 23 years of age and you have one previous conviction committed in 2011 for fraud to which you were sentenced to 3 months’ imprisonment and ordered to pay compensation of $33,820.

18.I was informed that you were also in financial difficulty as you were made redundant from work and for those reasons you committed this offence.  You are very remorseful for your misdeeds and have expressed so in your written letter in Chinese to the court. 

19.As can be seen the damage in this case was red spray paint on the walls of the corridors or the flats and the lifts.   The cleaning fee for the removal of the paint was, as can be seen from the facts, not excessive.  The damage may not have caused a lot to repair, but it is the circumstances it was done in which was after or before you called upon the victims in the flats.

20.You were there as debt collectors dunning for debts from the debtors, from the occupants of the flats.  The purpose of spraying the paint was to cause or harass the debtors to repay the money.  It was a demand made with implied menaces to the occupants and/or the debtors.  This type of menace is common in Hong Kong and can be seen as mentioned in the case of Yip Kwok Hung then by the late Gall J that debt collectors do use spray paint, red spray paint, in collecting debts by spraying on the walls, outside the walls of flats.

21.I bear in mind that for at least Charges 1 and 2, the menace was the spraying of the paint.  Charges 3 and 4, however, go hand in hand whereby not only was the menace caused by spraying the paint, but the occupant was criminally intimidated by telling him that if the debtor did not pay, his flat would be set fire.  If these two matters are are looked at together, they are similar to an offence of blackmail.  I bear in mind, however, that the defendants are not charged with blackmail, and the charges are separated into one of criminal damage and the other of criminal intimidation.

22.I bearing in mind that this type of offence of criminal damage is one whereby debt collectors come to cause a menace to the public or, more particularly, to the family of the debtors, and warrants a deterrent sentence.  These four charges occurred within a period of about a week, that is on the, 14, 20 and 22 November.  There were two of you culprits going to the premises as debt collectors and in less than a week later, you were fortunately arrested. 

23.I bear in mind when sentencing you the principle of totality. 

24.Defendants, taking into account the facts in this case, I consider that for the criminal damage charges, a starting point of 12 months’ imprisonment is appropriate had I convicted you after trial.  For the criminal intimidation charge, I consider a starting point of 9 months’ imprisonment.  So for Charges 1, 2 and 3, your sentence shall be reduced to 8 months’ imprisonment giving you the full one-third discount after your plea of guilty.  The same applies to Charge 4 whereby that term shall be reduced to 6 months’ imprisonment. 

25.For Charge 2, the criminal damage was targeted at the same premises, I therefore consider 2 months of Charge 2 should run consecutive to Charge 1.  In Charge 4, as I mentioned, there was an aggravating factor in the criminal damage in that you threatened to set fire to the premises and I therefore consider that 2 months should run consecutive to Charge 2.  The remainder of the charges shall run concurrent to each other and therefore your total sentence of imprisonment will be 12 months’ imprisonment.