The Queen v. Tsang Ping Kai

HCMA001204/1989

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HEADNOTE

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BLACKMAIL - MINOR CASE OF ITS KIND.

CRIMINAL RECORD - WHERE RECORD IS STATED TO BE FACTOR TAKEN INTO CONSIDERATION IN FIXING SENTENCE IT IS NECESSARY TO CLARIFY THAT THE RECORD WAS NOT CONSIDERED TO BE AN AGGRAVATING FEATURE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1204 OF 1989

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BETWEEN

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Coram: Hon. Ryan, J. in Court

Date of hearing: 7 February 1990

Date of delivery of judgment: 7 February 1990

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JUDGMENT

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1. The appellant was convicted after trial by Magistrate Betty Kwan on a charge of blackmail and sentenced to 9 months' imprisonment. At the same time the Magistrate activateda suspended sentence of 3 months imprisonment for an earlier offense of claiming to be a member of a triad society.

2. The appellant now appeals against sentence on the blackmail charge. It is not suggested that the Magistrate was wrong to activate the suspended sentence.

3. The brief facts were that a Mr Ng cut his hand on a broken tea cup at the restaurant operated by the victim. The victim acknowledged responsibility for the accident and paid Mr Ng's medical expenses of $770. The next day the appellant called at the restaurant and complained to the victim that as Mr Ng had injured his hand he could not work and what was the victim going to do about it. The victim said he could not make a decision. During the course of the day and in the evening the appellant visited the restaurant on four occasions requesting at first $900 as compensation for Mr Ng's employees who could not work because of Mr Ng's indisposition, and then increasing the demand to $2,000. It seems from his evidence that the appellant had been drinking during this period. On one of the visits he uttered a threat that the victim had better watch out, that he would do something nasty and that the victim would not live past the evening. The victim does not seem to have taken that threat too seriously at the time as he made no report to the police. It was not until the appellant had made a further visit continuing to harass the victim that a report was made.

4. It is submitted that the facts show the offence to be at the lower end of the scale of blackmail offences. The Crown do not take issue with this and I agree. The Crown also concede that 9 months' imprisonment is high but submitted it was not manifestly excessive.

5. The defence in addition to the submission that the term of imprisonment was too high given the facts of the case, also point to the Magistrate's reasons for sentence where she states that one of the matters taken into consideration in fixing the term of imprisonment was the appellant's criminal record. The complaint is that the Magistrate did not make clear whether the record was used simply to establish that the appellant could not claim in mitigation that he was of previously good character or whether she considered it an aggravating feature entitling her to increase the sentence she would otherwise have imposed. If the latter use was made of the record it would be wrong. I agree that this is a matter the Magistrate should have made clear in her reasons.

6. I am satisfied that in the circumstances of this case, the sentence of 9 months' imprisonment was manifestly excessive. The appeal is allowed to the extent that 6 months' imprisonment is imposed in lieu of the 9 months' imprisonment imposed by the Magistrate. This term will be served consecutive to the 3 months' suspended sentence which was activated by the Magistrate.

Representation:

Mr Alain Sham, Sr. Crown Counsel, for Crown.

Mr J. Hemmings, inst'd by DLA, for Appellant.