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)
||FONG King-choi (方琼財)
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
R E A S O N S F O R J U D G M E N T
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, 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...