HKSAR v. Ho Wing Hong

HCMA000666/2004

HCMA 666/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 666 OF 2004

(ON APPEAL FROM TMCC 1552/2004)

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Coram: Hon Beeson J in Court

Date of Hearing: 27 August 2004

Date of Judgment: 27 August 2004

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J U D G M E N T

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1.The Appellant was charged with Blackmail, contrary to section 23 (1) and (3) of the Theft Ordinance, Cap 210. He pleaded guilty to the charge and was sentenced to 8 months' imprisonment. That sentence was ordered to run consecutively to a 16 months' sentence, imposed some two weeks earlier for a burglary offence.

2.The Appellant appealed against sentence on the ground that the sentence was excessive. Although no formal grounds of appeal were filed, he advised the Court that his sentence was too heavy and complained that he had not been given a chance to mitigate for himself at the hearing.

3.The Court transcript shows that the Appellant was represented at the hearing and mitigation was made on his behalf by the Duty Lawyer, who placed all the relevant mitigatory material before the Magistrate.

4.The facts of the blackmail were that the Appellant made a demand of $1,000 from the mother of the friend of his son. The two children, who were 11 and 10 were on a shoplifting expedition stealing sweets. The Appellant's son stole some chocolates while the victim's son acted as lookout. The Appellant's son was caught but the victim's son was not. However, the Appellant's son didn't incriminate the victim's son. The day after the incident the Appellant called at the victim's home and made an unwarranted demand of $1,000, threatening that he would disclose her son's role as a lookout to the police if she did not comply with his demand. As a result, the victim gave $20 to the Appellant and promised to raise the remaining sum. She was not able to raise the remainder of the money and made a report to the police. The following day the Appellant went to the victim's flat and demanded the rest of the money. At that point, the victim called the police and identified the Appellant, who was arrested.

5.The Appellant had a number of previous convictions; going equipped for stealing; possession of dangerous drugs; aiding and abetting someone to remain in Hong Kong without the authority of the Director of Immigration; possession of dangerous drugs and burglary.

6.The Magistrate was asked to take into account in mitigation the guilty plea and to consider totality when sentencing. The Magistrate described this blackmail as "a mean offence" because the Appellant tried to make financial capital out of a child's predicament, confident that the anxious mother would accede to his demand, rather than run the risk of her son being reported to the police.

7.He took a starting point of 12 months for sentence and reduced it to 8 months for the plea of guilty. He considered totality before ordering the term to run wholly consecutively to the 16 months' imprisonment for burglary. Having considered the facts of the case, I find that the Magistrate correctly categorised this offence, however in view of the fairly minor and opportunistic nature of the demand, I consider that the starting point was rather too high. Justice would be served by taking a starting point of 9 months and imposing a sentence of 6 months.

8.I allow the appeal. I quash the original sentence, impose a sentence of 6 months imprisonment and order that it run wholly consecutively to the previous sentence of 16 months for Burglary.

Representation:

Ms Leung S Y Rosaline, SGC, of Department of Justice for Respondent

Ho Wing Hong, Appellant in person