Kong Ming and Others v. The Queen

CACC000167/1977

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Coram: Huggins, Ag. C.J., Pickering, J.A. and McMullin, J.

Date of Judgment: 23rd August, 1977.

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JUDGMENT

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Pickering, J.A.:

1. The four appellants were each convicted upon the same charge of blackmail. In addition the first appellant was convicted of four further charges of blackmail, six of theft and three of claiming to be a member of a triad society whilst the fourth appellant, in addition to the single charge of blackmail, was also convicted of claiming to be a member of a triad society.

2. Each appellant applied for leave to appeal against some or all of his convictions and sentences. We dismissed all the applications in respect of conviction and also those of the first and fourth appellants in regard to sentence. We now give our reasons for allowing the applications against sentence of the second and third appellants.

3. It is apparent from his reasons for sentence that the learned District Court judge considered that the first appellant should not have been tried before the District Court the jurisdiction of which is limited to seven years' imprisonment and that he should have received a substantially higher term. We are not of that view and we consider that the sentence of seven years' imprisonment imposed upon the first appellant was the appropriate sentence. Similarly we consider that the sentence of five years' imprisonment for blackmail plus six months consecutive for claiming to be a member of a triad society which were imposed upon the fourth appellant are entirely correct sentences. However the view which the learned judge took as to the inadequacy of his powers in regard to sentencing the first appellant undoubtedly coloured his treatment of the second and third appellants for, the first appellant having been sentenced to seven years' imprisonment in respect of 14 convictions, the second and third were then sentenced to six years in respect of one conviction each. The former Full Court said in the case of Leung Hoi v. Reg.⁽¹⁾ that disparity of sentence of itself would not support a successful appeal on the grounds of a justified sense of grievance if the sentence complained of was in fact "right" in the sense of being appropriate to the offence and to the offender. At the same time we are of the opinion that sentences of six years' imprisonment in respect of one wholly unsuccessful blackmail demand are of themselves too high and once we accept that that is so, some degree of comparison with the sentences imposed upon the first appellant becomes inevitable. In all the circumstances we think the appropriate term of imprisonment for the second and third appellants is four and a half years. Accordingly their applications succeeded and the sentences of six years' imprisonment were set aside and substituted by sentences of four and a half years' imprisonment.

4. We wish to add a note in regard to a particular ground of appeal which did not commend itself to us. This was:

"Insofar as the learned trial Judge did so, he was wrong to take into consideration 'the dramatic increase in blackmail cases in 1976 over 1975' instead of considering the appropriate sentences for the offence in question."

5. The interests of justice include not only the interests of an accused person but also those of the community. There is nothing in appropriate in a trial judge having regard, when passing sentence, to the incidence of the offence with which he is concerned. Indeed this Court very recently in Tse Yeung-lai v. The Queen⁽²⁾ increased from four years to six years a sentence of imprisonment for the prevalent offence of robbery by means of entry by a group of men into domestic premises with knives, there ensuing the tying, gagging and blindfolding of the inhabitants for the purpose of ransacking the flat. We indicated at the same time that in the ordinary case a sentence of six years' imprisonment for this type of offence was unlikely to be interfered with by this Court. The very reason for that decision and indication was the continued prevalence of the offence despite sentences which have thus far been normally of four years' duration.

Representation:

K-John Cheung (Director of Legal Aid) for second and third appellants.

First and fourth appellants in person.

Hodge for Crown/respondent.

(1) 1973 H.K.L.R. 238.

(2) Criminal Appeal 656 of 1977.