R. v. Wong Chung Keung & Other

HCMA000607/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.607 OF 1995

______________

______________

Coram: Hon. Duffy, J. in Court

Date of hearing: 29 November 1995

Date of handing down judgment: 6 December 1995

________________

J U D G M E N T

________________

1. These appellants were convicted of blackmail on 21st April 1995 by Andrew Kan, Temporary Magistrate. They were sentenced on the same day to 18 months' imprisonment for the 1st appellant and 6 months' imprisonment for the 2nd appellant. The 2nd appellant was granted bail pending appeal. The appellants appealed against both their convictions and sentences and the appeal against convictions was dealt with by Gall, J. on 10th October 1995. Gall, J. ruled that as there was no Statement of Findings in relation to the sentences, he could not deal with the matter of sentence. He ordered the magistrate to supply a Statement of Findings forthwith. That Statement of Findings was presented on 27th November 1995, and I heard the appeals against sentence on 29th November 1995.

2. It goes without saying that this delay was entirely unacceptable and was occasioned by no fault of the appellants, but as a result of the learned magistrate's failure to present Statements of Findings, which was a matter overlooked by those involved in the appeal procedure. The sentences passed were, in respect of the 1st appellant, 6 months for each of three offences of blackmail, the sentences being ordered to run consecutively; and in respect of the 2nd appellant, one sentence of 6 months for one offence of blackmail. In the Reasons for Sentence provided on 27th November, the magistrate said that he adopted a starting point of 9 months for each of the sentences, though he had not mentioned that at the time of passing sentence. Indeed it was surprising that if he had adopted a starting point of 9 months, why that had been reduced to 6 months, as there were no mitigating factors which would have justified such a reduction.

3. There was no doubt that each of these offences had to attract a custodial sentence. Nor was there any doubt that the sentences had to be ordered to run consecutively as these were all separate transactions. However, when passing such sentences, regard must be had to the totality of the sentence to ensure that the sentence does not exceed the level of criminality involved. The sums of money demanded by the appellants in this case appeared to have been sums owing by the victims to the appellant, although the Crown raised some doubts as to the legitimacy of the debts involved. The sums themselves were not paid by the victims for some time after the demands were made. In his ruling on the appeal against conviction, Gall, J. was satisfied that the evidence supported the finding that while the money might have been owed, it was the method of demanding it that was unlawful, and that therefore the charges were proved.

4. I felt that in all of the circumstances, a total sentence of 18 months was somewhat excessive. I therefore allowed the appeal against sentence and reduced the sentences for each of the counts of blackmail from 6 months to 4 months. That meant the 1st appellant would now serve a total sentence of 12 months, and the 2nd appellant, who has been on bail until now, would serve a sentence of 4 months.

Representation:

Mr Desaw, C.C., for Crown

Mr G.J.X. McCoy (B.C. Chow & Co.) for 1st and 2nd Appellants