HKSAR v. Yuen Siu Kan

DCCC 868/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 868 OF 2014

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Reasons for Sentence

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1.The defendant has been convicted after trial of 10 charges. Three charges of blackmail: they were committed on 16 December, 30 December 2013 and 2 January 2014. Then there are five charges of claiming to be a member of a triad society. The dates of those five charges are as follows: 24 December 2013, 2 January, 8 January, 16 January, 26 February and 14 March 2014.

2.Then there are two driving offences committed on 8 May 2014.  I take into account the three blackmail charges were committed within a space of two weeks. 

3.I will not repeat the facts of the case again. I have given a full account of the evidence in my findings in my verdict.  In short, there were undercover police officers gathering intelligence of criminal activity.  Two approached and became involved with the defendant.  PW1 specifically looked to approach the defendant to get involved in the lunch box business at construction sites.  It is common knowledge that tor dei had to be paid in order to do this business at construction sites, and I found the defendant blackmailed two of the police officers, PW1 and PW2, offering them protection if they paid for it in order for them to conduct business at construction sites.  The consequences of not paying were not spelt out but implied that if the witnesses paid tor dei, they would be able to conduct business trouble-free.

4.The evidence here is that Sun Yee On controlled certain sites in Hong Kong and Kowloon.  The evidence is that the defendant claimed to be a member of the Sun Yee On and in fact told the police in his records of interviews that he was in fact a member of the Sun Yee On.  He had seniors above him and subordinates below him in the Sun Yee On.

5.The expert witness agreed that the defendant would probably have paid fees himself in order to control the construction sites, and the facts of this case are that he then demanded money from others to come in and sell meal boxes at lunchtime.  The demand was a protection fee. In fact, it is basically an extortion, and these offences must be discouraged. The courts clearly treat these offences seriously and take the view that they must be deterred.

6.I do take into account that the witnesses approached the defendant.  It is not the same as cases where triads approach hardworking members of the public and demand a share of their income for no legitimate reason.  In those scenarios, the members of the public are often put in fear. 

7.I also take into account that there was not a significant amount of money involved here especially when I consider what the expert said has been paid in the past at construction sites.  $10,000 was paid by PW1.  $5,000 was paid by PW2.  PW2 was told that when business commenced, there would be an extra $2 per lunch box as tor dei and a monthly fee on top of what has already been paid. 

8.I also take into account what I have heard in mitigation as well as the defendant’s record.  He has one previous blackmail conviction in 1987, one previous conviction for claiming to be a member of a triad society in 1998.  Of his other 11 convictions, they are mainly driving offences or gambling offences.  He has one previous in 1988 for taking part in an unlawful assembly.  By the defendant’s own admission in the video-recorded interviews, he has been a triad member for a long time. 

9.He may have a legitimate business but from the facts of this case, he is facilitating the business of the controlled lunch box business by supplying lunch boxes. 

10.The defendant is 54 years old, now single but has three adult children.  Mr Davies has said all he can on the defendant’s behalf in mitigation.

11.There are no tariffs for the offences of blackmail and claiming to be a member of triad society.  Sentence will depend on the individual circumstances of each case, and I have heard what Mr Davies has to say on the relevant factors. 

12.As far as driving offences are concerned, this will be the fifth time the defendant has been convicted of driving whilst disqualified or driving without a licence.  This shows a total disregard of the law and the court process; a total disregard of the safety of other fellow road-users.  To be driving without any insurance is very serious.  And although the defendant has only been convicted of one occasion of driving whilst disqualified in this trial, according to the witnesses, he obviously drove on more than one occasion that they witnessed. 

13.The defendant was disqualified on 31 August 2011, and he is in breach of two suspended sentences.  To be specific, in Kwun Tong KT 3225 of 2011, he was sentenced to 3 months’ imprisonment suspended for 36 months, and in Shatin ST 3080/2011, he was sentenced to 4 months’ imprisonment also suspended for 3 years.  This was to run consecutively to the Kwun Tong case.  Therefore, that is a 7-month term of imprisonment suspended for 36 months.

14.I have taken into account all mitigation, the facts of this case and the background of the defendant.  

15.After careful consideration, I take the following starting points.  Charge 1, Charge 3 and Charge 4, the three blackmail charges, I will take a starting point of 2 years and 6 months.  For Charge 3, 3 months of that sentence will be consecutive to Charge 1.  For Charge 4, 3 months of that sentence will be consecutive to Charge 1. 

16.Charges 2, 5, 6, 7 and 8, all “claiming to be a member of triad society” offences, I take a starting point of 12 months’ imprisonment.  All those five sentences will be served concurrently to Charge 1.

17.Charge 9 and Charge 10, I also impose sentences of 12 months’ imprisonment.  For Charge 9, driving whilst disqualified, 3 months of that sentence will be consecutive to Charge 1.  Charge 10 will be concurrent to Charge 1. 

18.That is a total sentence for these charges of 3 years and 3 months.  Defendant has been convicted after trial.  I see no reason for any discount.

19.I have to deal with the breach of suspended sentence for the two magistracy cases.  I order that the 3 months of KT 3225 of 2011 will run consecutively to the sentence I impose today.  I make no order for the breach of the suspended sentence of Shatin ST 3080 of 2011.  Therefore, the defendant is sentenced to 3 years and 6 months’ imprisonment.

20.For Charge 9, there will be a disqualification from driving any class of vehicle for a period of 4 years.  This disqualification will take effect from the date of the defendant’s release from prison.  I also order the defendant retake his driving licence after the disqualification period ends.

21.Charge 10, there is also a disqualification order and that is one of 3 years from driving any class of vehicle with effect from today.  Driving licence will be confiscated today.

(Discussion re driving licence)

22.Do you understand that sentence?

DEFENDANT: Yes, I do.

(Discussion re disqualification orders)

23.The two driving disqualification periods are to be served concurrently.