HKSAR v. FONG KING CHOI

CACC 319/2018

[2019] HKCA 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 319 OF 2018

(ON APPEAL FROM DCCC NO 90 OF 2018)

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	HKSAR	Respondent
	v
	FONG King-choi (方琼財)	Appellant

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Before: Hon Macrae VP and Zervos JA in Court

Date of Hearing: 10 July 2019

Date of Judgment: 10 July 2019

Date of Reasons for Judgment: 23 July 2019

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R E A S O N S   F O R   J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The appellant, with leave of the Court, appealed against his sentence of 20 months’ imprisonment following his plea of guilty to a charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210, which had been imposed on him by District Judge E Yip (the judge) on 9 October 2018.

2.  At the hearing of the appeal, we allowed the appeal and set aside the appellant’s sentence of 20 months’ imprisonment and substituted it with one of 14 months’ imprisonment.  We said we would hand down our reasons in due course, and this we now do.

The brief facts

3.  The facts as outlined to the judge and admitted to by the appellant were as follows.  In the early morning of 30 October 2017, at about 6:19 am, the appellant entered a 7-Eleven store in Mongkok, claiming repeatedly to a female member of staff that he was collecting protection money, while also thumping his hand on the cashier table.  The female store manager came forward and confronted him, but he kept on repeating his demand for protection money. She asked him the purpose of the protection money.  He said that he was from the region and was there to collect protection money.  He asked her if she would give him $100 but she responded that she was not in charge.  He then pointed at her, and asked her rhetorically whether that meant she was not paying.  He subsequently left the store and started to shout and kick things on the street outside.  He then returned, swearing and threatening the store manager, by saying that if she called the police, he would come back on another occasion.  During this time, there were customers present in the store.

4.  At about 6:21 am, he took two cans of beer and brought them down hard on the cashier table, swearing at the store manager and saying he was “tor-tei” (the local bully).  As he was about to walk out of the store, the store manager insisted that he had to pay for the beer.  He put $20 on a shelf and walked out of the store, shouting and swearing at the store manager. The actual cost of the two cans of beer was $12.90.  He remained outside the store, shouting abusive comments at the store manager.  At one stage, he claimed that he would bring his friends to the store, but the store manager and her staff ignored him as he walked off at about 6:25 am and loitered outside the store.  

5.  At about 6:28 am, the appellant was intercepted and arrested by the police.  The whole incident was captured on the store’s CCTV camera. 

6.  It was accepted that the appellant was intoxicated and boorish throughout this incident.

The appellant’s mitigation

7.  Mr Summly S Lee, who represents the appellant in this appeal, also represented him in the court below.  In mitigation, he noted that the appellant was 36 years of age and resided with his parents.  He explained that he had consumed a lot of alcohol prior to the incident because he was upset with his girlfriend.  He highlighted the following aspects of the case.  The appellant acted alone.  There was no actual violence or threat of violence, or damage to property.  The demand for money was a one-off incident and only involved a small sum ($100).  Despite declaring himself as “tor-tei”, he made no mention of any triad affiliation.  He noted that the appellant had prior criminal convictions, none of which included blackmail.  For those offences, he had either received a probation order or a fine, although there was one occasion when he was sentenced to attend a Drug Addiction Treatment Centre for possession of a dangerous drug.

8.  Mr Lee submitted to the judge the case of HKSAR v Wong Yin Chak,[1] where the Court of Appeal indicated that a starting point of 3 years’ imprisonment was appropriate for a case of blackmail that fell in the lower category of offending.  He compared the facts of that case with those of the present case and submitted that the facts of the former were more serious.  He invited the judge to adopt a starting point lower than 3 years’ imprisonment.

The reasons for sentence

9.  In sentencing the appellant, the judge noted that the appellant had only visited the store on a single day, and that the incident involved a demand for a one-off payment of a small sum of money.  He agreed that Wong Yin Chak was a more serious case of blackmail.  

10.  It would appear that the judge treated Wong Yin Chak as setting a sentencing guideline of 3 years’ imprisonment after trial for cases of this type where there are no aggravating features.  This is apparent from the judge’s following remarks:

“The Court of Appeal regarded an overall starting point of 3 years appropriate. It commented that the usual starting point of 3 years would be called for where no aggravating features such as triad affiliation, violence, or demand for regular payment or of large amount, were present.”[2]

11.  Relying on Wong Yin Chak, the judge adopted a starting point of 2 years and 6 months’ imprisonment in the present case which he reduced by one third for the appellant’s guilty plea to 20 months’ imprisonment.

The appellant’s submission

12.  The sole ground of appeal is that the judge erred in treating 3 years’ imprisonment as the overall and usual starting point for a blackmail case with no aggravating factors, and adopting a starting point of 2 years and 6 months’ imprisonment in the circumstances of the present case. 

13.  Mr Lee submitted that there was no sentencing guideline for the offence of blackmail, and that the present case fell into the lower category of offending for this offence.  He contended that this was not a serious case of blackmail and did not have any of the aggravating features that are usually present in such cases.  He repeated the matters raised in mitigation on behalf of the appellant, and submitted that for these reasons the starting point was manifestly excessive and wrong in principle.

The respondent’s submission

14.  Mr Derek Lau, for the respondent, submitted that the judge did not treat the case of Wong Yin Chak as providing a sentencing guideline for the offence of blackmail.  However, it would seem that the judge did rely on this case as providing a measure for the starting point to be adopted in the present case, even though it was expressly noted by the Court in Wong Yin Chak that there were no guidelines laid down for this type of offence.[3]

15.  After a review of a number of blackmail sentencing cases,[4] Mr Lau identified factors that are usually present in blackmail cases, such as the nature and amounts of the demand, and the nature and circumstances in and by which it was made that would have a bearing on the gravity of the offence and the appropriate starting point. 

16.  Mr Lau acknowledged that the present case was less serious than other cases of a similar nature because the appellant acted alone, the demand was one-off, the amount involved was small, and the store did not suffer any loss or damage to its property.  However, he pointed out that the present offence was nevertheless serious because it bore the hallmarks of a triad demand.  He submitted that this was apparent by the appellant referring to himself as “tor-tei” and threatening to call his friends, and by his aggressive and violent behaviour, repeatedly knocking on the cashier table, shouting loudly and kicking things outside the store.  He also added that the appellant committed the offence in a public place in the presence of other customers attending the store, and therefore caused a public disturbance.

17.  Mr Lau contended that the judge, by adopting a lower starting point of 2 years and 6 months’ imprisonment to distinguish it from other more serious cases, had appropriately reflected the gravity of the offence.  He submitted that the sentence imposed was neither wrong in principle, nor manifestly excessive.

Discussion

18.  Blackmail is an insidious crime that can be committed in an infinite variety of circumstances.  In general terms, it is committed when a person makes an unwarranted demand on another person with menaces.  The demand is usually accompanied by a serious or significant threat that is aimed to frighten or coerce the person on whom the demand is made to comply with it. There are no sentencing guidelines for the offence of blackmail but there are cases that have identified aggravating factors that would assist a sentencing court in determining the gravity of the offence and the culpability of the offender.

19.  One form of blackmail that has been prevalent and of concern in Hong Kong is where an extortion demand for money is made with triad overtones.  The Court of Appeal has consistently made it clear that the courts must demonstrate to offenders that this type of activity will not be tolerated.[5] 

20.  In Lui ChunYeung,[6] the Court of Appeal reduced a sentence of 30 months’ imprisonment to 23 months’ imprisonment where the appellant had visited a salon and demanded from the female owner a monthly protection fee of $500, but agreed to accept $300, failing which the salon would be set on fire.  The Court observed that although the appellant was not part of a triad group, the offence carried certain triad overtones, and went on to say:

“6. …Demands for protection money are the mark of triad activity not least when, as in this case, the demand was not just for a one-off payment but for regular monthly instalments; and in addition, there was the threat of serious violence to the property. It little avails a defendant who makes demands of this character to say that he is not in fact a triad, when the circumstances of the offence convey those hallmarks.”

21.  The Court in reviewing the sentence, evaluated the facts of the case and distinguished them from other cases by identifying the usual aggravating factors that are present.

“7. … The present case can be distinguished from others in which similar starting points have been adopted in that the demands in many of the other cases are made by or in the presence of a group of thugs, a fact which is intended to give greater weight to the threat; the sums demanded tend to be significantly greater than in this case; and there are often repeat visits. None of this is to suggest that this offence was not in itself serious; the nature of the threat was indeed serious particularly by reference to an earlier fire in the neighbourhood but nonetheless it is different from the several cases to which we were referred where starting points in the region of 4 years were adopted. One further significant difference, which distinguishes the case markedly from the normal triad related protection fee demand, was the behaviour of the blackmailer, shortly after the offence was committed, in surrendering himself to the police; hardly the behaviour of a true thug.”

22.  The Court in resentencing the appellant, adopted a starting point of 3 years and 3 months’ imprisonment, which it reduced to 26 months for the appellant’s plea of guilty and then by a further 3 months because of the act of voluntary surrender by the appellant, resulting in a sentence of 23 months’ imprisonment.

23.  We agree with the observations in Lui Chun Yeung, which we feel may not have been properly appreciated in Wong Yin Chak.  In that case, the appellant together with another person made continuous demands for protection money, “tor-tei”, for the sum of $1,000 from a man, and later his wife, who operated a newspaper stall.  The first demand was made when the man was operating the stall at 3:05 am.  The man questioned them about their demand and as a result they splashed Coca-Cola over his stock and ran away.  At 6:15 am, they returned when the man’s wife had taken operation of the stall.  The appellant again demanded protection money but this time from the wife.  He told her that if she made the payment there would be no trouble and that she should confirm with her neighbours that they were paying “tor-tei”.  She told them that she was not the boss and they should return at noontime.  However, they did not return that day but came back two days later at 6:15 am.  The man’s wife was alone at the stall at the time. They asked her whether she had spoken to her boss, and whether she had confirmed with her neighbours that they had paid “tor-tei”.  She replied that she had, but none of them had said that a payment had been made.  The two men left but returned about 10 minutes later, and the appellant opened a can of Coca-Cola and spilt the contents all over the newspapers on display at the stall.

24.  In light of the facts of that case and the observations subsequently made in Lui Chun Yeung, we consider that the following comments by the Court in Wong Yin Chak did not correctly convey the seriousness of the offence.

“13.  We are satisfied that, despite the fact that he was accompanied by D2 and damaged the stall’s stock, the Appellant falls into that lower category of offenders.  He made no threats of physical violence towards either of the stallholders; neither did he claim to have a triad connection.  He made a one-off demand rather than a demand for the regular payment of protection fees.  There is no evidence that he has triad connections and his record, bad though it is, as we have already said, contains no convictions for blackmail or triad-related offences.  In our view the 4-year sentence the Appellant received is manifestly excessive and we are of the view that a starting point of 3 years’ imprisonment is appropriate for his offence. ...”

25.  Even though the appellant was accompanied by another person and damaged the stall’s stock, the Court in Wong Yin Chak considered that his case fell into the lower category of offending.  It was on this basis that the Court was of the view that a starting point of 3 years’ imprisonment was appropriate for his offence.

26.  In cases of an extortion demand of money, the factors bearing on the gravity of the offence, include: (1) the nature and amount of the demand; whether the demand was for a one-off payment or regular payments; (2) the nature and circumstances in and by which the demand was made; whether the offender acted alone or with others; whether the demand was made on a single occasion or on repeated occasions; whether there was actual or threatened violence to a person or damage to property; whether there was an expressed or implied triad connection; whether it was part of a sustained campaign of intimidation against other victims; and (3) the consequences of the demand and the effect on the victim; whether the victim yielded to the demand for extortion money and whether any loss was suffered.

27.  It was accepted that the appellant was intoxicated and agitated at the time of the offence, and behaving boorishly. There was no subtlety in this offence as the appellant openly behaved aggressively towards the staff of the store in the presence of customers.  He portrayed himself as a local bully when he made the demand for $100 from the store manager, but she promptly refused his demand and insisted that he had to pay for two cans of beer that he had taken, which he did.  He then stayed in the vicinity of the store, being abusive and drinking his cans of beer, and soon after he was arrested by the police.  It would seem that the store manager had control of the situation because it was an admitted fact that she and the other staff members ignored the antics of the appellant, and obviously treated him as being under the influence of alcohol and not a serious threat.

28.  In his appeal notice, the appellant acknowledged that he behaved badly at the store.  He attributed his behaviour to being intoxicated and emotionally distraught because he was upset with his girlfriend. He noted that at the time he had paid for the two cans of beer and that he had not caused injury to anyone or damage to any property. 

29.  Nonetheless, it needs to be stressed that this sort of behaviour will not be tolerated and will be visited by appropriate punishment.  Threatening female staff of a convenience store in the early hours of the morning is conduct that should and will be soundly deprecated, particularly when they have been subjected to unwarranted demands in a menacing manner.  Offenders of this type of criminal conduct must realise that the courts take a serious view of it, even at its lowest level.

30.  The judge was correct to impose a custodial sentence on the appellant.  He treated the case at the lower end of the scale for the offence of blackmail and he noted that there were none of the aggravating features that are usually seen in a crime of this type.  We agree, but we feel that the starting point was too high in the particular circumstances of this case.

31.  We are of the view that a starting point of 30 months’ imprisonment was excessive and that a more appropriate starting point is 21 months’ imprisonment.  After reducing the starting point by one third for the appellant’s guilty plea, the resultant sentence is 14 months’ imprisonment.

Conclusion

32.  For these reasons, we allowed the appeal and set aside the appellant’s sentence of 20 months’ imprisonment and substituted it with one of 14 months’ imprisonment.

(Andrew Macrae)	(Kevin Zervos)
Vice President	Justice of Appeal

Mr Derek Lau, SPP of the Department of Justice, for the respondent

Mr Summly S Lee, instructed by K M Tang & Co, assigned by DLA, for the appellant