HKSAR v. Chan Kam Wah

DCCC 597/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 597 OF 2014

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to blackmail (1^st Charge) and claiming to be a member of a triad society (2^nd Charge).

2.PW1 was the supervisor of 2 village house construction sites in Shung Ching San Tsuen, Yuen Long, N.T. 

3.On an unknown day in April 2014, PW1 received a phone call from 6447 6468.  The caller “Wah Chai” demanded payment of “7 per house” and asked to talk to PW1’s boss.  PW1 told his boss (“his Boss”).  His Boss told PW1 to ignore Wah Chai. 

4.A few days later, PW1 found a chain at the entrance of one of the sites.  A notice was found next to the chain and contained the message that “if there was any need, please call 6447 6468”.    As the site had not yet commenced construction, PW1 ignored the chain and the notice. 

5.On an unknown day in mid-May 2014, Wah Chai phoned PW1 again and told him that they had to first discuss before PW1 could continue with the building works. PW1 arranged to meet Wah Chai to sort things out.  Later that day, PW1 met the Defendant.  The Defendant identified himself as “Wah Chai”.  He told PW1 that PW1 had to discuss with his (the Defendant’s) protector first before PW1 could continue working.  A friend of the Defendant stood by as the Defendant talked. PW1 told the Defendant that he would relay the message to his Boss.  When PW1 relayed the message to his boss, his Boss told PW1 to ignore the Defendant. 

6.On 16 May 2014, while PW1 was working at the site, the Defendant and the friend approached PW1.  The Defendant told PW1 that they had to discuss first before PW1 could continue working.  PW1 told the Defendant that he would relay the message to his Boss. 

7.On 19 May 2014, the Defendant phoned PW1, asking why his Boss had not yet reverted to the Defendant.  PW1 told the Defendant that he would follow up with his Boss. 

8.Later in the day, the Defendant phoned PW1 again, telling PW1 that no works could be carried out unless his Boss had first discussed with the Defendant. 

9.On 20 May 2014, PW1 and his Boss reported to the police. 

10.On 28 May 2014, under police supervision, PW1 had phone discussions with the Defendant.  The Defendant demanded PW1 to pay $50,000 so that the works of one of the sites could be carried out.   The Defendant said his protector was “Yau Wo”. 

11.Later in the day, under supervision and in the company of PW2, a police officer disguised as his Boss’s employee, PW1 told the Defendant over the phone that his Boss had agreed to pay.  PW1 asked the Defendant to meet up each other in a restaurant. The Defendant arrived and told PW1 that once payment was made, no one would harass PW1.  PW1 asked to meet the Defendant’s protector to confirm the Defendant’s claim.  The Defendant replied that he himself was fully in charge and PW1 could pay him.  PW1 insisted on meeting the Defendant’s protector.  The Defendant walked away and approached a car parked nearby.  He spoke to the friend in the car and returned, saying that he was fully responsible and it was not necessary for PW1 to contact his protector.  The friend of the Defendant got out of the car and joined the Defendant.  The Defendant told the friend to find his protector’s phone number.  The Defendant walked away to make a phone call. 

12.The Defendant returned and told the friend not to search for the phone number any more.  He told PW1 that he would take care of his troubles.  The friend lashed out about a construction site nearby and left.  The Defendant told PW1 that works could be carried out safely once payment was made.  He claimed that he was from “Wo Hop To”.  The friend returned to the meeting at this point. 

13.At all material times, the friend was not around when the Defendant threatened PW1 or claimed to be a member of Wo Hop To. 

14.PW2 signaled his police colleagues who had laid ambush.  DSPC 54197 arrested the Defendant.  Under caution, the Defendant denied blackmailing anyone.  A mobile phone containing a SIM card bearing the phone number 6447 6468 was seized from the Defendant. 

15.In the subsequent video-recorded interviews, what the Defendant said included as follows:

(1) His nickname was Wah Chai;

(2) His mobile phone number was 6447 6468;

(3) He had told PW1 that upon payment of $50,000, PW1 could work safely;

(4) He was not a member of Wo Hop To;

(5) He claimed to be its member to scare PW1;

(6) He did not know the protector in Wo Hop To.

Mitigation

16.The Defendant is 32 years of age.  He had been a skilled scaffolding worker before arrest.  His income was unstable but could be as high as $30,000 per month.  A few months before the offences, he was short of work and could hardly provide sufficiently for the upkeep of his father, who had retired, and his daughter begotten by his ex-girlfriend.  He committed the present offences to get money to repay debts accumulated up to near $50,000. 

17.He had 2 records for drug trafficking and 1 for assault.  I do not regard his records as an aggravating factor in sentencing.       

Sentencing considerations

18.The prosecution has handed up 3 cases for my reference.  The first is HKSAR v Wong Yin Chak CACC 126/2004, which concerned the sentence of a 17-year-old defendant demanding $1,000 from the couple running a newspaper stall on a single occasion.  As the threat did not involve any claiming of triad membership, the Court of Appeal regarded 3 years as the proper starting point.  The other two cases, HKSAR v Cheung Wan Ing CACC 118/2000 and HKSAR v Tam Yun Chuen CACC 118/2008, each involved claiming of triad membership in the blackmail.  The Court of Appeal in each case referred to HKSAR v Wong Fu Wa [1999] 1 HKC 363 where 4 years was regarded as the proper starting point in the circumstances.          

19.Mr. Hung for the Defendant in the present case has 2 cases for my reference.  The first one is HKSAR v Tsang Hon Hang CACC 164/2011.  There the defendant was sentenced for a host of charges including blackmail, claiming of triad membership, criminal damage.  The overall sentence was reduced from 34 months to 28 months.  That decision did not expressly refer to Wong Fu Wa (above). The second one is HKSAR v Lau Kok-wo DCCC 400/2012 which involved a defendant admitting 3 blackmails, 1 claiming of triad membership and 1 criminal damage caused to the police blanket when detained.    The victims were prostitutes on the same floor of a building.  He asked for monthly protection fee of $500 from each and in 1 instance he claimed to be a triad member.  The judge took 3 years as the overall starting point.       

Sentencing this defendant

20.The Defendant had been contacting PW1 since April 2014.  Over the month, he had put pressure on PW1 to contact his Boss to pay money for the continuation of works.  He claimed triad membership on the last occasion to reinforce his threat.  I take 4 years as the starting point for the 1^st Charge.  Given his plea of guilty, the sentence is 32 months.  There are no other mitigating factors.  This is the sentence.

21.I take 15 months as the starting point for the 2^nd Charge.  Given his plea of guilty, the sentence is 10 months.  There are no other mitigating factors.  This is the sentence.

22.As the 1^st Charge is sentenced on the basis that he had claimed triad membership in the course of the blackmail, I order the sentences to be wholly concurrent. The overall sentence is 32 months.