The Queen v. Chan Kan

CACC000565/1984

IN THE COURT OF APPEAL

Coram: Hon. McMullin, V.-P., Silke, J.A. & Bewley, J.

Date of hearing: 22nd March, 1985

Date of judgment: 22nd March, 1985.

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JUDGMENT

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McMullin, V.-P.:

1. On the 14th February this year we dismissed the application of this applicant in respect of his convictions upon two counts of blackmail and one of claiming to be a triad society member. He had also applied for leave to appeal against his sentence which was a sentence of detention in a Training Centre.

2. He had been tried together with two other men as a result of a series of incidents in which he had made demands from a man called Yeung backed up with triad threats. All three were convicted but the other two had taken a lesser part in the series of events with which the case was concerned. The first defendant was fined and was also given a suspended sentence. He was the one who had been least involved. The second defendant was given a period of detention in a Detention Centre.

3. Detention Centre was considered also for this applicant but it was thought not to be appropriate because he was at that time suffering from a back condition which made him an unfit subject for such an order. We thought it proper to adjourn on the last occasion for the purpose of getting a further report from the Training Centre and also a medical report.

4. The latter, that is the medical report, makes it clear that he has no permanent damage of any kind to his back and the trouble appears to be a minor injury resulting from a strain when he lifted a heavy object.

5. The progress report from the Training Centre makes it clear that he has responded well to his time in that institution. He has been doing work principally in the laundry and the kitchen and is said to have made steady progress in the training programme. He has been frequently visited by his members of his family, and he has continued to be in correspondence with the young woman, whose former position in a Bar of which her family disapproved, was the occasion of his offence.

6. It is clear that the young woman, LEE Wai-lan, has a very supportive family. It was indeed the interference by one of the members of her family with LEE Wai-lan's job at this particular Bar which initiated the events which resulted in the offences for which the applicant was convicted. At the time of those offences it is clear that the family of the girl did not approve of the association between the applicant and their daughter.

7. By the time that District Judge came to deal with sentence, however, it does appear that the attitude of both families had altered. It was represented to the Court that the mother of the girl approved of the prospect of marriage between the two and there was even an offer that some accommodation as a matrimonial home would be provided.

8. What the District Judge did not have before him on that occasion was the information which is now before this Court and that is, that LEE Wai-lan is for the second time pregnant by the defendant. The baby is due in May and we are assured that the marriage will take place. This is the circumstance which principally motivates this Court in altering the order of the judge below. The applicant has already served some four months in the Training Centre.

9. We have in addition today had the advantage of some very valuable assistance by Mr. Van Buuren who has interviewed the various family members and who, in the comparatively short time available to him, has been able to show us a report in which we note a series of promises made by CHAN Kan, the applicant. In the same report counsel also informs us that the father of the applicant is prepared to employ him in his fish-breeding business and that he will pay him a regular wage of $2,500 per month. We note also the promise made to counsel by the girl herself not to continue in work of the kind which precipitated the unlawful acts of the applicant. The girl is at present engaged in a secretarial course in a Commercial School.

10. In these circumstances, we think it proper to interfere although we must make it clear that there was nothing wrong in principle with the Training Centre order made by the District Judge.

11. We shall treat the application as the appeal. Training Centre order is set aside and we substitute therefore an order for probation. That will be upon the following terms: the order will extend for two years. The applicant will report today to the Probation Officer in this building and thereafter he will be obliged to remain under the supervision of and at the direction of the Probation Officer during the continuance of the probation period. He will also have to undertake not to consort with any known Triad elements. That will be a condition of the order.

Representation:

Brian van Buuren (S. T. Poon & Co.) for the Applicant.

A. P. Duckett, Q.C. & Miss Mary Yuen for Respondent/Crown.