Au Siu-ming v. The Queen

CACC000282/1979

Coram: Roberts, C.J., Huggins, J.A. and McMullin, J.

Date of Judgment: 6 June 1979

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JUDGMENT

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Roberts, C.J.:

1. This is an appeal against concurrent sentences of three years and two years imposed for blackmail and theft in the Victoria District Court.

2. The agreed facts, which were put before the trial judge, were that the victim, a taxi driver named LUI, spent the night with a woman named Kan ching-yee on the 28th January this year. On 3rd February a man claiming (truthfully, it appears) to be KAN Ching-yee's husband phoned the victim LUI and demanded to see him.

3. LUI agreed to meet him on 4th February at the Cafe Celano. When LUI arrived at the cafe he saw the woman KAN Ching-yee at a table and went towards her. As he did so the appellant, AU Siu-ming, grabbed hold of LUI and punched him in the chest. AU claimed to be the husband of KAN Ching-yee and expressed his anger at LUI's relationship with his wife. He then demanded from LUI a sum of $10,000 as compensation. After some discussion the appellant agreed to accept a sum of $8,000, provided that $5,000 of it were paid by the next day, and the remainder within two months. LUI then left the cafe and reported what had happened to the police.

4. On 12th May, by arrangement with the appellant, LUI went to the Boston Restaurant, accompanied by Detective Constable LUI Kwai-hoi, whom he introduced to both the appellant and his wife as his cousin. The appellant again said how insulted he was by LUI's behaviour towards his wife and added that his family were urging him to take revenge. The appellant again asked for money and LUI gave him four fake $500 notes and five $100 notes. The appellant was arrested as he counted this money. At the trial the appellant pleaded guilty to both charges.

5. The appellant is aged 30 and has a bad record. He has been in trouble since the age of 19, with a total of 35 previous convictions, some of them for demanding money with menaces (though we have no details of the circumstances) and some of them for larceny or theft.

6. The doubts about the sentences imposed by the judge which have arisen in our minds are due to the fact that, on the record as it stands, this seems to be a case of a wronged husband, married on 17th January, who discovers that his wife has committed adultery with another man only eleven days after the marriage.

7. It is possible to feel some sympathy in those circumstances for a wronged husband who might be carried away and unwisely attempt to secure compensation from the adulterer by means of threats. We do not for a moment suggest that such conduct is in any way justifiable. Nevertheless they are circumstances which, in our view, provide substantial mitigation of the appellant's conduct. We are forced to the conclusion that, in spite of the accused's record (which inevitably arouses suspicion that LUI was the victim of a plot) we should treat this as an instance of a wronged and newly married husband who lost control of himself and that we should not be affected by his previous record.

8. This should be regarded as an exceptional case, depending on its special facts and not as a condonation of any form of blackmail.

9. We therefore substitute for the sentences of three years' and two years' imprisonment, concurrent sentences of two years' and two years' imprisonment, both sentences to be suspended for a period of three years. The application for leave to appeal against sentence is therefore granted.

Representation:

Mrs. Bokhary (Thomas Wang & Co.) for appellant

Adams for crown