HKSAR v. Chan Chi Man

HCMA000050/1999

HCMA 50/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 50 OF 1999

(On appeal from NKCC 6791 of 1998)

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Coram: Deputy Judge McMahon in Court

Date of Hearing: 31 March 1999

Date of Judgment: 31 March 1999

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J U D G M E N T

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1. The Appellant was convicted after trial of an offence of blackmail contrary to s. 23(1) & (3) of the Theft Ordinance, Cap. 210 (being charge 1) and of one offence of theft contrary to s. 9 of the Ordinance (being charge 2).

Appeal against convictions

2. He appeals against his convictions on the basis that there was insufficient evidence or that the convictions were against the weight of evidence.

3. The facts of the case were, as found by the magistrate, that the Appellant had contacted the victim, who was an insurance agent, and arranged a meeting on the pretext of the victim providing insurance advice to the Appellant's friend.

4. The meeting took place at a restaurant where the Appellant attended with another person. The victim came alone.

5. At the meeting all pretence of insurance advice was dropped and the Appellant produced a photograph of the victim to the victim and a piece of paper with the victim's phone numbers on it. The Appellant told the victim he knew where he worked and the route he travelled to work with his girlfriend.

6. The Appellant said he had been asked by 3 women to beat up the victim and to break the victim's girlfriend's leg but would not do so if the victim paid him $6,800. This was negotiated down to $5,400 and a period of time was allowed the victim to pay. The victim gave $500 to the Appellant and the Appellant gave the photograph, the piece of paper and the Appellant's pager number to the victim before the victim left the restaurant.

7. Next day the Appellant contacted the victim again and they arranged to meet later in the day at a restaurant for the balance of the money to be paid.

8. The victim went to the police. The meeting at the restaurant went ahead observed by the police who saw the victim hand over another $500 to the Appellant.

9. The police then moved in and arrested the Appellant who according to the police said words to the effect "Ah Sir I know I am wrong. I do it because I have no other way".

10. Subsequently the Appellant was interviewed under caution and made various and complete admissions to the offences.

11. These admissions were accepted into evidence by the magistrate after a determination of their voluntariness together with the words said by the Appellant at the time of his arrest. The magistrate heard evidence in this regard by way of the alternative procedure.

12. The admissions under caution were in the form of a written post record of what was said at the time of the Appellant's arrest and a series of further statements and answers to questions by the Appellant.

13. Those admissions amounted as I have said to a full confession to the blackmail offence and to the victim handing over to the Appellant $500 at the restaurant meeting.

14. In addition to the contents of the cautioned statements admitted into evidence the magistrate also accepted the verbal evidence of the arresting officer as to what had been said to him by the Appellant at the time of arrest. This had also quite properly been ruled voluntary by the learned magistrate as a result of his determination on the special issue and allowed into evidence.

15. The magistrate also accepted the victim who gave evidence as a witness of truth. He considered the victims evidence carefully before concluding that he was a reliable witness.

16. Previously to that he had considered the Appellant's evidence carefully both on the special issue and subsequently on the general issue before concluding the Appellant was not a witness of truth and that his evidence did not deserve to be given any weight.

17. The magistrate set out his reasons for rejecting the Appellant's evidence very carefully. Those reasons are detailed and reasoned.

18. Having rejected the Appellant's evidence and accepted the evidence of the prosecution witnesses, including that of the victim, and the contents of the cautioned statement made by the Appellant as being reliable, there was ample, even overwhelming, evidence against the Appellant in respect of both charged offences.

19. The magistrate considered the evidence carefully and arrived at conclusions that cannot be criticised.

20. Before me today, the Appellant raised one further matter. He alleged that the magistrate was biased against him but in support of that he could put before me nothing more than that the magistrate had refused him bail at the commencement of his hearing. He also seems to suggest that the magistrate had prejudged the issues in the case because he allowed the Appellant's cautioned statement to be admitted into evidence. In my view there is nothing whatsoever in that ground of appeal.

21. Accordingly in my view no criticism can be made of the learned magistrate's verdict in respect of either charged offence and the Appellant's appeals against conviction are dismissed.

Appeal against sentences

22. So far as the Appellant's appeals against sentence in respect of the offences of blackmail and theft are concerned, the learned magistrate imposed a sentence of 18 months imprisonment in respect of the blackmail offence and 3 months imprisonment in respect of the theft offence, both sentences to run concurrently.

23. Regarding the sentence imposed in respect of the blackmail offence the learned magistrate bore quite properly in mind that blackmail is a most serious offence.

24. He considered the case of R. v. LAU See Kan Court of Appeal 573/95 where the Court of Appeal had said there was no normal range of sentence for blackmail offences as circumstances differ so widely from case to case and then went on and considered some further cases such as R. v. HAU Sai Yin M.A. 56/96 and R. v. WONG Chung Keung M.A. 607/95 where much the same approach was taken.

25. The learned magistrate considered carefully the circumstances of the present case.

26. He took into account that the Appellant, in his initial threat to the victim, had made some triad references to a "big brother".

27. He took into account that the demand for money was in no way based on any disputed financial relationship or previous dealing between the victim and the Appellant but was a bare faced and calculated unwarranted demand. The learned magistrate was entitled to take these matters into account.

28. He says in his Statement of Findings:

"Blackmail is one of the most serious offences in the calendar of criminal offences, and deterrence is perhaps the most important part of the sentence, only just after the question of punishment."

He went on to say further:

"I considered this case one where deterrence was important because members of the community had to be protected from demands involving the use of considerable violence by those who might pick on them without any real prior connection between them."

29. Taking all those matters properly into consideration together with the amount of money demanded by the Appellant and that no harm in fact came to the victim, the learned magistrate arrived at a starting point of 18 months imprisonment.

30. He concluded that there were no significant mitigating factors as the Appellant had been sentenced after trial and was not of previous good character. He sentenced him to 18 months imprisonment in respect of that blackmail offence.

31. For the theft offence he took a starting point of 3 months imprisonment. Again, that starting point was arrived at after the learned magistrate had considered the circumstances of the offence including the amount of money involved.

32. His approach in this regard was also perfectly proper.

33. He ordered both sentences to run concurrently as they arose out of the same incident. Again, that was perfectly proper.

34. He activated a suspended sentence the Appellant was subject to at the time he committed the present offences.

35. He took into account that the suspended sentence was breached towards the end of the suspension period and ordered that only 4 months of that 12 months suspended sentence run consecutively with the sentences he had imposed in respect of the present offences.

36. He considered the totality of sentence of 22 months to be appropriate.

37. In my view the learned magistrate in no way can be criticised for either his reasonings or the level of sentences he has imposed.

38. The Appellant's appeal against his sentences being too severe is dismissed.

Representation:

Mr Johnny Chan, Senior Government Counsel, for the Respondent (HKSAR).

The Appellant - Chan Chi Man in person.