The Queen v. Tong Wai Yu

CACC000079/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. McMullin, V.-P. Li, V.-P. & Yang, J.A.

Date of hearing: 19th June, 1985.

Date of judgment: 19th June, 1985.

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, TONG Wai-yu, was tried in the District Court on charges of blackmail and attempting to pervert the course of public justice. He was convicted on the 5th of February of both of those offences and he received sentences of 2½ years upon each count, the sentences to run concurrently. He applied for legal aid and legal aid was refused on the 20th of March.

2. The case was set down for hearing but the original date, fixed for the 17th of April, was vacated by the single judge on the 4th of April at the request of the applicant on the basis of a letter alleging that the applicants uncle would shortly be in a position to supply funds for legal representation.

3. A fresh hearing date was fixed for the 7th of May.  That date was vacated, on the 29th of April, once again on the basis of a letter similarly couched.

4. This morning the applicant renews his application for an adjournment. We have before us a letter dated the 5th of June in which once more he refers to the possibility of legal representation. The letter states that his aunt has told him that his uncle will return to Hong Kong in late June and in view of this be wants one last chance.

5. We have questioned the applicant as to the latest situation in respect of his uncle and the possibility of funds. He has not received any further information from his uncle he does not know when his uncle is going to return to the territory. We have no information from the aunt, the uncle, or any other member of his family.

6. We are not prepared to continue adjourning this case indefinitely. It is a case of a very straightforward nature - he pleaded guilty to the charges and the only question we have now to consider is the question of sentence. The application for an adjournment is refused.

7. We have before us grounds prepared by the applicant himself dated the 15th of February.

8. This was one of those cases, not unfamiliar in these courts, in which a young man considering himself a rejected lover, reacts to the behavior of a young woman in such a way as to indicate that he has lost face and requires atonement and then proceeds to seek it by illegal means.

9. The woman in question, CHENG Pui-ling, was a prostitute. She had come to know the defendant in September of 1984. On the 30th of that month in a restaurant she appeared to ignore the applicant who was sitting with some friends at a nearby table and an explanation for this conduct was demanded of her by the applicant. She was taken to the table where the applicant and others were seated and one of the persons there said he was not satisfied with her behaviour. She was asked to apologize and she attempted to do so. The applicant then claimed that he and his friends had weapons and that they belonged to a triad society, and that since he had lost face she should give him $10,800 or be beaten up. Thereafter the party adjourned to another restaurant where the demand was repeated. The victim, under these circumstances, handed over a sum of $108, but was not allowed to leave-and was taken to an apartment by the applicant and his friends. Later she was released. She reported the incident to the police.

10. Those were the circumstances supporting the first count to which the applicant pleaded guilty.

11. The second charge - the attempt to pervert the course of public justice - concerns what occurred on the 15th of October when the complainant and a friend were walking in the street. They encountered the applicant who came up and asked the complainant not to give evidence against him. He by then had been approached by the police and was facing criminal proceedings. He offered to treat her to a large feast if she would agree but added that if she did testify the consequences could be serious.

12. The District Judge in passing sentence had regard to two cases which he regarded as bridging the spectrum of offences from the most serious kind of conduct relating to blackmail on the one hand, and those of a more venial character on the other. The case at the upper end was YEUNG Kwok-fai ⁽¹⁾ in which a sentence of 4½ years' imprisonment was imposed upon an Inspector of Police in circumstances which the judge rightly regarded as being more serious than those in the present case.

13. The lesser sentence to which he referred was one substituted by the Court of Appeal for a suspended sentence, a sentence of 9 months' imprisonment. Having regard to these, he decided that the proper sentence in the present case was 2½ years.

14. He pointed out correctly that the attempt to pervert the course of justice is one that strikes at the root of the administration of justice. He took note of the pleas of guilty, and the clear record of the defendant.

15. The circumstances of the blackmail, compounded by what subsequently occurred were, in the opinion of this court, quite sufficient to justify the sentence of 2½ years. In imposing a similar sentence for the other offence the judge had in mind the principle of totality. We think that was a proper approach and the overall gravity of the offences justified the sentences imposed. The application is therefore refused.

(1)    Cr. App. No. 784 of 1980

Representation:

The applicant, TONG Wai-yu, in person.

Mr. M. J. Hartmann, Ag. Senior Asst. Crown Prosecutor, for Respondent/D.P.P.