HKSAR v. Wong Kai Hing

CACC000316/1999

CACC 316/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 316 OF 1999

(ON APPEAL FROM DCCC 102 OF 1999)

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Coram: Hon. Stuart-Moore, V.-P., Leong & Wong, JJ.A.

Date of Hearing: 9 November 1999

Date of Judgment: 9 November 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. This matter comes before the court as a renewal of an application for leave to appeal against sentence, following an application for leave before the Chief Judge on 31 August 1999 which was refused. The Applicant, on that occasion, did not pursue his application in relation to conviction and that was dismissed.

2. The Applicant was convicted on 28 May 1999, following a trial before Judge Toh in the District Court. He faced two charges of blackmail, and was sentenced to concurrent terms of 27 months' imprisonment on each charge.

3. The first charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210, was particularised in the following way:

"Wong Kai-hing, on or about the 31st day of December, 1997, at Flat C, 13th Floor, Alpha House, Nos. 27-33, Nathan Road, Tsimshatsui, Kowloon, in Hong Kong, together with Lang Shit-yi, with a view to gain for himself, made an unwarranted demand of cash $500,000 Hong Kong currency from Cheung Chiu-yin with menaces."

4. The second charge was in similar terms, albeit at a different location, on the following day.

5. In passing sentence the judge took notice of the fact that the Applicant's co-defendant had been sentenced to 27 months' imprisonment by Judge Fung on each count to run concurrently. This reflected a starting point of 30 months discounted by 3 months for previous good character. The Applicant also had no previous convictions and, as the judge was unable to find any distinction between the two offenders, she imposed the same sentence in order, as she put it, "not to cause any feeling of grievance" on the Applicant's part. This implies that the judge had in mind that she would otherwise have imposed a lengthier sentence on the Applicant.

6. The Applicant's grounds of appeal are that the sentence was excessive bearing in mind his good character and the fact that he was acting under the direction at all times of his co-defendant. He also complained that no Social Enquiry Report was ordered prior to sentence. He drew to our attention that financial problems have afflicted his family as the direct result of the prison sentence he has received and that sadly one of his daughters has, on account of those financial difficulties, not been able to go to university this year as planned. He went on to state that the victim of the blackmail was not injured in any physical way and that he now realises that there are things besides money which are more important in life. He emphasised that his present state of health is poor and he believes that the Correctional Services Department are unable to deal with these problems properly.

7. At court today, he has added nothing to the written grounds of appeal which he prepared some time ago.

8. It is quite apparent to this court that the Applicant still has no insight into the gravity of his crime. He was an equal partner, whoever it was who first hatched the scheme, in a very serious case of blackmail.

9. The blackmail victim's father (PW1) was known to Lang Shit-yi (the Applicant's accomplice). PW1 was taken to a hotel room in Phnom Penh, Cambodia, by the accomplice. The Applicant was inside the room when they arrived. PW1, who had not previously seen the Applicant, was subdued at gunpoint by the two men. PW1 was then kicked, handcuffed and blindfolded and his legs were tied. The accomplice said that he was collecting a debt from PW1 which he owed to a "Mr. Suen". The accomplice told PW1 that if he did not pay up he would be dead. PW1's ordeal lasted six or seven hours while he was handcuffed to the chair and blindfolded. After that time, the blindfold was removed when PW1 agreed to sign an I.O.U. PW1 was able to see the Applicant still in the room holding a pistol which looked like a colt. The Applicant was walking up and down the room cocking the pistol from time to time. The I.O.U. was eventually written by PW1 to the effect that PW1 had taken $500,000 as a loan for a certain purpose. In fact, during the trial, PW1 denied that there had been any such loan. He was made to affix his thumbprint to the I.O.U. PW1 was then kept hostage inside the hotel room from 29 December 1997 until 6 January 1998. The accomplice and the Applicant took turns to guard PW1.

10. The object of the exercise was that PW1's brother in Thailand should pay the money demanded. When he failed to do so, PW1 agreed that his son in Hong Kong should be contacted. This followed a threat by the Applicant that PW1 would be killed if the money was not raised.

11. PW1's son (the blackmail victim in Hong Kong) reported the matter to police with the result that subsequent telephone calls were tape-recorded. PW1 faxed details of the accomplice's bank account so that his son could transfer the money into it. In fact, despite reporting the matter to the police, the blackmail victim, fearing for his father's life, did pay $260,500 into the accomplice's account.

12. The accomplice was arrested in due course when he returned to Hong Kong on 5 January 1998. The Applicant, with the assistance of Cambodian police, was arrested on 6 January 1998, and PW1 was rescued at the same time. The Applicant was eventually returned to Hong Kong on 14 July 1998.

13. This was a case in which we are not in the least surprised at the trial judge's apparent reticence at passing a sentence of 27 months in order to achieve parity in sentence between the two offenders who were tried at different times. The Applicant could well have been sentenced to a longer period of imprisonment, and there is no merit whatever in this application.

14. Accordingly, the application for leave is dismissed and we shall, as it has been wholly unmeritorious, order that four months of the time the Applicant has spent in custody shall not count towards his sentence.

Representation:

Mr. Kevin P. Zervos, S.A.D.P.P. (Ag.) for D.P.P./Respondent.

Applicant in person.