The Queen v. Tsang Chu

CACC000462/1986

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Li, V.-P., Hon. Penlington and Hon. Bewley, J.J.

Date of hearing: 31st December 1986

Date of delivery of judgment: 31st December 1986

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JUDGMEN

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Penlington, J.

1. This is an application for leave to appeal against sentence on charges of arson and being a member of a triad society. The applicant originally also appealed against the convictions but he now abandons that appeal.

2. These charges arise out of events which took place on the 29th May 1984 at the Golden Harvest Film Studio in Hammer Hill Road. It was agreed at the trial that on the previous day the applicant had visited the premises and had asked for a job as an extra but was refused. On the day in question he returned with a large group of other people who had met together in the MacPherson playground, and according to a statement which he made to the police and which was admitted in evidence, after some discussion they all went into the film studio at 0509 hours in the morning. There they found a watchman who they threatened and tied up and they then threw petrol bombs inside the premises and stones were thrown to break the glass windows and the door. The fire caused damages estimated at some $15,000.

3. It is not absolutely clear what was the precise reason for this attack but it would appear that it may have been because the applicant and the others had been refused employment as film extras at the studio.

4. One of the others involved was apprehended and tried and was sentenced to 3½ years imprisonment. This applicant however made good his escape and managed to stay at large until he was arrested in a routine stop and search operation in May of this year. He defended the charges but was found guilty after trial. He submits that the other defendant received 3½ years whereas he has been sentenced to four years for the arson and two years for being member of a triad society, the sentences to be concurrent. He said that he is remorseful and that he acted only as a watchman; that during the last two years he has not committed any offence; he has a wife and two children; and he points to the fact that this is his first conviction.

5. Mr. Bruce, Senior Crown Counsel, has referred us to two decisions regarding the offence of membership of a triad society and one in respect of the arson. In R. v. Chan Yuk Kuen ⁽¹⁾ Court had said that for arson, a sentence of 4 - 5 years should be regarded as appropriate, though of course this can go up or down substantially depending on the particular circumstances. Arson is a very serious offence and carries a maximum sentence of life imprisonment. This was a deliberate planned arson carried out by large number of people in the early hours of the morning. It could have resulted in very much higher level of damage than in fact was done. We must also take into account that there was a watchman who eras threatened and tied up. It is not clear whether there was any danger to him or to any other person who was in the premises and we must assume, in favour of the applicant, that that was not so. Nevertheless, we see no reason whatever why we should interfere with the sentence of 4 years imprisonment imposed in respect of the arson charge.

6. The charge of being a member of the triad society arises entirely because of the statement which the applicant made to the police on his arrest. In the course of that statement, he said that he was a member of the Chuk Luen Bong Triad Society. In Application for Review No. 5 of 1980, this Court said that membership of a triad society was a serious offence. In R. v. Ho Chun-chau ⁽²⁾, this Court said a sentence of 6 months imprisonment in that case was appropriate but there membership of the triad society was not related to any other criminal offence. A sentence of two years imprisonment is, possibly for a first offender, on the high side. But here, the membership of the triad society was quite clearly related to a very serious criminal offence and was one carried out in conjunction with a large number of other people. It is true that these offences took place some 2½ years ago. That is entirely due to the fact that the applicant, although he said he was remorseful, managed to avoid being arrested during that period.

7. We do not think the sentences passed here were neither wrong in principle nor manifestly excessive and the application for leave to appeal against sentence is refused.

(1)    Criminal Appeal No. 402 of 1980

(2)    Application for Review No. 17 of 1984

Representation:

Mr. A.A. Bruce, S.C.C. and Mr. Stephen Wong, C.C.for Respondent

Applicant in Person