The Queen v. Woo Kwong-hoi

CACC000449/1984

IN THE COURT OF APPEAL

Criminal Appeal

No. 449 of 1984

BETWEEN

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Coram: Sir Denys Roberts, C.J., McMullin, V.-P. & Silke, J.A.

Date of hearing: 18th January, 1985.

Date of judgment: 18th January, 1985.

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JUDGMENT

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McMullin, V.-P. :

1. The appellant, WOO Kwong-hoi, applies for leave to appeal against sentences of three and a half years imposed upon him in the District Court before which he had been charged with three offences of blackmail and three related charges of theft. The trial proceeded for several days and after voir dire proceedings had concluded with the admission of a statement made under caution by him, the pleas were retaken and he pleaded guilty to all the charges.

2. The circumstances of the offences are briefly as follows. The applicant is a small businessman who, at the time of these offences, also held a money-lender's licence. The complainant on several of the charges, a young woman called CHAN Chuen-wai, had herself been employed in some business concern. In November 1982, she met the applicant and went to live with him. It appears clear that their relationship was of an intimate character but the complainant also assisted in the business interests possessed by the applicant at that time.

3. During the period while she was living with him, this young woman was incautious enough to permit the applicant to take photographs of her in the nude. It must be said at once that there does not appear to have been anything in the nature of compulsion attending the taking of these photographs.

4. Their partnership in both the senses broke up in June 1983 and they parted on bad terms. The applicant claimed that the girl, Chan owed him a considerable sum of money. Some of this was said to have been for loans and some to have been the fruit of gambling which they had engaged upon while they lived together.  It seems evident that some money was owed to the applicant at that stage because $65,000 was paid to him by the complainant at the time that she left him.

5. Thus far there appears to have been nothing in the nature of criminal conduct on the part of the applicant. Thereafter, however, he continued to pursue her and her family for further payments of money and he received a number of such payments, $60,000 on one occasion which is the sum concerned in the second count and fifth counts. That money was paid by the mother of the victim and the charge relating thereto was ultimately amended by substituting her name for that of the victim. Finally, a sum of $10,000 was paid over and became the subject of counts 6 and 3.

6. The means whereby the applicant succeeded in gaining these sums was in each case the same. He threatened to expose the girl by making public the pictures he had taken of her and it was under that threat that on each occasion either she or her mother paid money to him.

7. Following the latest of the payments, he made further demands and there was a long telephone conversation between himself and the complainant, Chan, the tenor of which suggests that although she might have been objecting to the size of the sums that he was still claiming, she was not denying that some money might still be owing between them. Shortly after this, a meeting took place between the victim and the applicant and the victim's brother and two other persons. This took place in the open and was observed by some police officers who intervened and after enquiries, took the whole party off to the police station.

8. There is no doubt that this was extortion by the use of a particularly mean kind of trick, the applicant having turned to his own use in this way pictures, reflecting an extreme intimacy, which he had come into control of during the period while relations between them were still sweet.

9. In passing sentence, the District Judge regarded the use of the photographs in this way as "quite revolting". He noted their disparity in age and he said:

"She seems to have agreed with the defendant's proposal to go and live with him purely out of greed to make easy money : he used her and later blackmailed her and her mother on the basis of those photographs."

He then referred the previous record of the applicant. The applicant had previous convictions, the relevant one, for our purposes, is a conviction on the 24th June, 1982 upon three counts, i.e. criminal intimidation, assault occasioning actual bodily harm and lending money at an excessive rate of interest. The applicant had been fined for three of those offences and sentences of imprisonment were imposed in respect of the criminal intimidation and the assault six months in each case. The custodial sentences were suspended for 18 months, a period which has now elapsed.

10. Although this was undoubtedly criminal conduct of a despicable character, there are certain aspects to the offences which may not perhaps have been given sufficient attention by the judge. This was not one of the blackmail cases in which conduct of a violent and intimidating character is proved. No physical force was employed nor was anything of that sort threatened to secure compliance. The victim herself had placed in the hands of the applicant the means whereby he was able to exert pressure against her and she did so willingly. The girl and her family and the applicant had for a considerable period of time been treating with each other on the basis that there was some debt in existence and the demand was in some sense regarded by the applicant as not being unjustified on the basis of that debt.

11. Because of the pleas of guilty no question was raised before the District Court as to whether, in the circumstances, the theft charges were properly laid. That is a matter which we need not consider, except to say that obviously the theft charges are in a sense technical the criminal character of the entire event being essentially that contained in the blackmail charges.

12. In these courts blackmail offences of the more serious kind involving either violence or kidnaping or threats against life and family have, in previous cases, usually been visited with sentences in the region of four years. Although therefore we would not diverge from the judge's stigmatizing of this offence as one of a revolting character, we think it lacks those elements which would attract the heavier range of sentences imposed in the most serious kind of case.

13. The judge allowed six months in respect of the plea of guilty on the view that four years would have been the appropriate sentence without that plea. We think that that range of sentence was excessive in the circumstances disclosed herein. We grant the application and treat the hearing of it as the hearing of the appeal. The sentences of 3½ years imposed in respect of each of these six offences are set aside and terms of 2 years only on each charge are substituted therefor. The sentences to run concurrently.

Representation:

Applicant in person.

Mr. F. Wong for Respondent/Crown.