HKSAR v. Tong Chi Keung

CACC000332/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.332
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. & Wong, J.

Date of Hearing: 27 November 1997

Date of Judgment: 27 November 1997

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced four charges. They were two of blackmail, one of assaulting a police officer in the execution of his duty, and one of criminal intimidation. The first of the blackmail charges (the first charge) alleged that on 18th March 1994, at Wah Yuen Foods Company Ltd. in Shatin, he, with a view to gain for himself, made an unwarranted demand of $50,000 from But Chai-tong with menaces. The other blackmail charge (the fourth charge) alleged that on 22nd March, some five days later, at Flat C, Block 11, City Garden, North Point, with a view to gain for himself, he made an unwarranted demand of $50,000 from a Mr. Siu Kam Chun. The assault charge (the second charge) occurred on 24th March 1994 at an amusement centre in Shatin and the criminal intimidation charge (the third charge) occurred in December 1993 in Wan Chai when the applicant was alleged to have threatened Chu Yuen-ki with injury to the property of the Ocean Empire International Co. with intent to cause the said Chu to do an act he was not legally bound to do.

2. The applicant pleaded guilty before Judge Gill and was sentenced on the first and fourth charges to three years and nine months' imprisonment, on the second charge to three months and on the third charge to two years and six months. The sentences were ordered to be partially concurrent resulting in an overall sentence of five years. He now seeks leave to appeal against that sentence. His appeal is concentrated upon the sentence of three years and nine months that were passed on the two blackmail charges.

3. The trial judge outlined the facts as follows:

".... On a day in March 1994 the defendant telephoned the proprietor of a food manufacturer and demanded $50,000 be paid into a certain bank account, failing which he would contaminate his produce and jeopardise his family's safety. The defendant was traced by means of the account and by voice identification. This gave rise to charge 1."

"During the same month the defendant was approached by a police officer who identified himself and asked to inspect the defendant's identity card in a routine enquiry. The defendant pushed him to the ground and tried to get away. The officer suffered mild injury. The defendant was apprehended before he could escape. This give rise to charge 2.

On an occasion in December 1993 the defendant entered premises being made ready for sale of cooked food and demanded of the person in charge that the proprietor contact him, with implicit words that damage to the premises would result if he did not. The defendant was later identified as the one who made the threats. This gave rise to charge 3.

In March 1994 the defendant telephoned a foodstuffs manufacturer saying that he had contaminated some of their produce and demanded $50,000. This gave rise to the 4th charge."

4. The applicant absconded prior to his trial in February 1995 and was, because of this, not dealt with until May 1997. He, it seems, had been in custody in China from September 1995 until he was handed over to the Hong Kong Police on 29th November 1996.

5. For the blackmail charges, charges 1 and 4, the trial judge took a starting point of five years, for the criminal intimidation charge he took a starting point of three years, and for the assault charge he took a starting point of four months. He did not give the full one-third discount because the applicant had absconded. He was, in the view of this court, quite entitled to give a lesser discount because of that. On the blackmail charge, he reduced the sentences on each from five years to three years and nine months, on the intimidation charge from three years to two and a half years, and on the assaulting a police officer charge, from six months to three months. He then ordered that the sentences be partially consecutive and partially concurrent making a total of five years.

6. The applicant seeks leave to appeal against his sentence and in the first of the Perfected Grounds, which has been argued by Mr. Allan, it is submitted that the judge failed to give any or any proper weight to his guilty plea. This, we have already indicated, is not a ground with any merit. The trial judge gave a lesser discount than the applicant would have got had he not absconded and he was entitled so to do.

7. Grounds 2 and 3 can be taken together. It is suggested in those grounds that the trial judge was wrong to have dismissed the applicant's contention that he had been unable to answer to his original trial date because he was detained in China. The trial judge, having heard what counsel had to say in this regard, dismissed this as being "far-fetched and unbelievable". It was suggested that he was required by reason of this contention to hold a Newton inquiry. That is not so. A trial judge, if "patently incredible" mitigation is put before him, is entitled to dismiss it in a summary way as did the trial judge here. We refer to R. v. Chung Kam-fai, (1993) H.K.C.L.R. 178 which makes it plain that a trial judge is entitled so to act.

8. We turn to Ground 4 where it was suggested that in view of the fact that there was not any contamination of the products and because these were, and I use the words of the ground, "clearly unsophisticated blackmails" and the "criminal intimidation was as serious and distinguishable from" the facts of Attorney-General v. Poon Kam-shing, [1990] 2HKC 177, the sentence was too severe. While it is true that it is too distinguishable from the facts in Poon Kam-shing, there is no doubt in our mind that this was a serious offence in which a determined attempt was made to extort money. The seriousness of offences of this nature lies in the making of the threat. The threat itself, if given the publicity which is threatened almost certainty damage the company in a very grave way by undermining public confidence in its products. These are serious offences and this court must emphasize that is so by imposing sentences that will not only punish but will also deter.

9. Ground 5 we consider does not have any merit. When we look at the overall sentence of five years, we are satisfied, given the multiplicity of offences, that it was in no way too severe. Indeed we consider that it was, particularly given the two blackmail offences, a somewhat lenient sentence.

10. The application for leave to appeal against it, therefore, must be refused.

Representation:

Mr. A.A. Bruce, S.C. & Mr. Martin Hui, G.C. (D.P.P.) for the Respondent.

Mr. William Allan instructed by Messrs. Josip Ma for the Applicant.