Attorney General v. Poon Kam Shing

CAAR000008/1990

BETWEEN

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Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Date of Hearing: 10 August 1990

Date of Judgment: 10 August 1990

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JUDGMENT OF THE COURT

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Sentence : Blackmail: contaminated soft drink cartons:

threat to place on market

Silke, V.-P.:

1. Poon Kam Shing appeared for trial in the District Court before Her Honour Judge Chua on a charge sheet containing a single charge of blackmail. The particulars were that, on 16th October 1989, with a view to gain for himself he made an unwarranted demand of $300,000 from Lau Kin Kee of the Yeo Hiap Seng (Hong Kong) Limited, with menaces. To this charge, he pleaded guilty and, after a probation report was called for and considered, was sentenced to a period of five months' imprisonment.

2. The Attorney General now seeks, under the provisions of section 81A of the Criminal Procedure Code and with leave, to ask this Court to review that sentence on the basis that it was manifestly inadequate and/or wrong in principle.

3. The facts basing the charge were that on the morning of 16th October a sales supervisor of the company received several anonymous telephone calls. These came from a man who said that he had in his possession a number of packets of contaminated soft drink in the brand name sold by the company. There was a demand that there be a payment of the $300,000 and a threat that if a report was made to the police the man would place the contaminated soft drinks in the market.

4. A report was made to the police and the telephone calls of the company were monitored. There was another call on the same day and negotiations took place with the man, who was the respondent here Poon Kam Shing, eventually agreeing to reduce his demand to $200,000.

5. Then between 16th and 20th October there were a number of telephone conversations between various officers of the company and the respondent. In the course of those conversations the respondent was told that the company would want to get back the contaminated items before the money was delivered.

6. On the afternoon of 20th October the respondent telephoned the company and told them that five packets of contaminated soft drinks had been left at a fire hose reel box in Sun Tin Wai Estate, Shatin. The money was to be placed in the same box after the contaminated drinks had been recovered. An ambush was laid by the police, a manila envelope containing fake money was placed in the box and the contaminated drinks were recovered. The respondent was seen coming up to the box, removing that envelope and, as he was about to leave the area, he was arrested.

7. He led the police after arrest to a lift lobby in another portion of the Sun Tin Wai Estate where a set of syringes was found hidden behind a drainage pipe and then to room in that part of the Estate from which a bottle of toilet detergent was recovered.

8. The soft drink packets recovered from the reel box had been injected with the toilet detergent. They had pinpricks in them showing that they had been injected by the use of a syringe. The toilet detergent contained hydrochloric acid and, although no chemists report appears to have been produced to the trial judge, the facts stated that it was

"estimated that up to 1 to 2 millilitres of concentrated hydrochloric acid had been added to each of the five contaminated packets."

It is uncertain whether that quantity covered all the packets or whether each of the packets had that quantity but nevertheless a highly deleterious substance had been added to them.

9. The probation report showed that the respondent, having persuaded his mother-in-law to mortgage her house in 1987, received $450,000. Of that he deposited $300,000 in a bank in order to secure overdraft facilities for a business. But he was a gambler. He started a trade which necessitated visits to Macau and there he succeeded in losing $300,000. He got into the hands of loan sharks, he borrowed money from relatives and generally his financial circumstances were very poor indeed. He thought up this scheme in order to attempt to avoid any further financial difficulties.

10. The trial judge acknowledged that this was a serious offence and said:

"....copycat crimes like these have to be discouraged and deterred. It could disrupt the smooth running of food supply and cause panic."

11. She expressed sympathy for the dire straights the respondent's family now found themselves in and she expressed the opinion that this was another case where a partially suspended sentence would have been appropriate. She went on to say:

"One factor in his favour is that I have heard no evidence that this type of case has been done in Hong Kong before or since."

12. She thought it unlikely that after this, that is his appearance in her Court, the respondent would commit another offence again.

13. We have had drawn to our attention by Mr. Cross, who, together with Miss Evena Chan, appears for the Attorney General, in this Application, to one case which has occurred in Hong Kong, that was High Court Case No. 109 of 1985 The Queen v. Lau Kwok Kong and others. It is unfortunate that this was not drawn to the attention of the trial judge. In that case Barnes, J. expressed the view that for the case before him, which concerned two related offences involving separate demands on the same company and in circumstances not dissimilar from here, 9 years would have been the appropriate overall sentence. This after trial. In the event, Barnes, J. for reasons peculiar to the defendant Lau Kwok Kong imposed a sentence in total of 4 years' imprisonment. Mr. Cross acknowledges that it is somewhat unusual that this instant case was brought in the District Court and not in the High Court.

14. In The Queen v. Hadjou [1989] Criminal Law Review 390 the English Court of Criminal Appeal, of which Lord Lane, L.C.J. was a member, intimated that in this type of case deterrence was perhaps the most important part of the sentence only just after the question of punishment.

15. We would respectfully adopt that principle. Offences of this particular nature are heinous. They can cause grave public disquiet and harm and enormous damage to the company concerned. We note that in 1977 in England for a very serious offence of blackmail also concerning the poisoning of company's produce where the two offenders had bad records, a sentence of 12 years' imprisonment was not interfered with. [R. v. Mullaly and Curley [1977] Crim. L. Rev 756.]

16. Mr. Kwok, who appeared for the respondent both here and below, has drawn the respondent's particular circumstances and those of his family to our attention. He had said everything that could be said on his behalf. He tells us that the respondent was actually aware that the police had been brought into the matter before he went to the fire box to leave the contaminated drinks and recover the money. That in our view shows his determination to achieve his end.

17. We accept that this was not a sophisticated plan but it certainly was a clever and competent one and we do bear in mind the very unfortunate effects that the incarceration of the respondent will have upon his family and, further, that he is presently released from prison having served the 5 months jail term imposed by the trial judge. But even for a minor case of blackmail 5 months would have been clearly inadequate. For an offence so serious as this, it was manifestly wrong, and manifestly inadequate in the full sense of that phrase. Bearing in mind all the circumstances of the offence and of the offender and the fact that the trial took place in the District Court, we would have thought that this offence warranted a sentence of 6 years' imprisonment. This being a Review the discount which has been traditional will be given. The application of the Attorney General will be allowed, the sentence of 5 months set aside and there will be substituted for it a sentence of 5 years' imprisonment.

Representation:

I.G. Cross, Esq., Q.C. & Miss Evena Chan for Crown/applicant

Eric Kwok, Esq. (K.C. Chan & Co.) for respondent