R. v. Kan Tak Man

CACC000443/1996

IN THE COURT OF APPEAL

1996, No.443

(Criminal)

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Coram: Hon. Power, Ag. C.J., Mayo, J.A. & P. Chan, J.

Date of hearing: 7 January 1997

Date of judgment: 7 January 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter was originally facing 17 counts. He pleaded guilty to six counts of blackmail (charges 5, 6, 8, 12, 13 and 14) and to two driving offences (charges 16 and 17), one of driving without a licence and the other of driving without a third party insurance. He was sentenced overall to imprisonment for four years.

2. The facts which he admitted revealed that, as regards the 5th charge, Mr. Chui Kai-wai, who operated a workshop at Lin Kee Farm in Yuen Long, was approached by him and another person in July 1995. A demand was made of Mr. Chui for a "Tor Tei" fee of $1,680. Mr. Chui pleaded financial difficulties and eventually paid only $100 of the amount demanded. He was told that that fee would be $800 each year.

3. In September, some two or three months later, a Mr. Lam, who was another workshop owner at the Lin Kee Farm, was approached by the applicant and was also told that a "Tor Tei" fee was owing in the sum of $1,680. Mr. Lam said that the boss was out but that he would inform the boss when he came home.

4. In the 8th charge, on 16th February 1996, the applicant and another person went again to the workshop of Mr. Lam and blamed Mr. Lam for not paying the fee. The applicant became angry and hurled a telephone at a table, kicked wooden planks and threatened that if the fee was not paid the house would be set on fire and the business closed down. Mr. Lam, understandably in fear, asked his wife to obtain the money and $1,700 was then produced and paid to the applicant. He said to Mr. Lam that he would be back in the following year to collect a similar fee.

5. In the 12th charge, which was the one the judge considered the most serious, a Mr. Yuen Wai-tung on 25th February 1996 went to store some work tools in a factory on the Lin Kee Farm operated by his brother. As he was about to leave he was approached by the applicant and another male. The applicant told him that he was watching the factory and that he used to collect $168 from all factories nearby. Mr. Yuen gave him $100 and drove the applicant to Yuen Long. When they arrived there the applicant took his mobile phone saying that he would return it later. He did not in fact return it on that day and when he eventually did return it, some days later, he demanded $20,000 from Mr. Yuen as compensation. This was, he said, because the phone service had been stopped and the stoppage had caused him a loss of $100,000. When Mr. Yuen said that he did not have the money he was threatened with a knife like object wrapped in a newspaper. The applicant and the other man said that if he did not pay the money, then the safety of his family would be in trouble. He then promised to pay. Immediately thereafter the two driving offences occurred as the applicant had asked to be allowed to drive the light goods vehicle owned by Mr. Yuen and, when doing so, had had an accident. It was then discovered that he had no insurance and, of course, no third party cover.

6. In consequence of the accident and the minor injuries suffered by the other man, the applicant demanded a further $5,000 (charge 13). This, he said, was as compensation for those injuries. Mr. Yuen, who was in fear, said that he would pay the amount.

7. The 14th charge related to incidents which occurred on the same day. The demand was now raised to $25,000. Arrangements were made for the wife of Mr. Yuen to meet the applicant at a playground. She did meet him there and handed over $5,260 in cash, a gold bracelet and a finger-ring. These were apparently, assessed to have a value overall of $740. The applicant continued to press Mr. Yuen to pay what was said to be the outstanding balance of $19,000. Mr. Yuen badgered with persistent threats eventually raised the $19,000 and handed it to the applicant. It was later in that morning, the brother of Mr. Yuen having alerted the police that the applicant and the other man were arrested.

8. The judge said when dealing with those offences:

"In short, these were very unpleasant offences. The court will not tolerate, and will demonstrate it will not tolerate, the use of violence and threats to intimidate innocent civilians and extort money from them and their families. I will deal with the offences in what I deem to be the order of seriousness and take account of the principle of totality."

He had at the outset said that he would give a discount because of the pleas of guilty but that it would not be a full discount because of the lateness of the plea. He went on:

"The 12th charge; the demand for $20,000, the displaying of a knife-like object, the threat to the victim's family, two males against one innocent victim, you are sentenced to 21/2 years' imprisonment.

13th charge, demand for $5,000 when driving PW4's vehicle, two males against one victim, sentenced to 4 months' imprisonment.

14th charge; demand for $9,000, two versus one again, 4 months imprisonment, consecutive.

Charge 5; demand for $1,680 protection fee, two versus one, 3 months' imprisonment, consecutive.

Charge 6; demand for $1,680, a one-on-one situation, 2 months' imprisonment, consecutive.

Charge 8; demand for $1,680, demand made, two versus one and threat to set fire to the building, 3 months' imprisonment, consecutive.

Charge 16; driving without a valid licence. You put the public at risk. You are incompetent to get behind the wheel of a vehicle which is a lethal instrument and weapon. You were out of control, it was intentional, there is no excuse, 1 month imprisonment, consecutive.

Charge 17; driving without insurance, 1 month imprisonment, consecutive and disqualified from driving all classes of vehicles for 2 years."

9. All of those sentences having been made consecutive amounted to a total of 48 months' imprisonment. The applicant now seeks leave to appeal against those sentences. His grounds, argued by Mr. Shaun Kelly, are firstly, that there was insufficient discount given to his pleas of guilty, secondly that insufficient discount was given in respect of other mitigating factors, and thirdly that the totality of sentences was excessive.

10. We can deal quickly with the second ground which was that insufficient discount was given for other mitigating factors. The only matter of any weight in this regard was the youth of the applicant, who was about 21 years at the time. This was not overlooked by the trial judge who was perfectly well aware of it. We find no weight in that ground.

11. The suggestion that the totality of sentences is excessive is made because a number of the offences occurred on the same day and were connected sequentially. They were the driving offences and two of the blackmail offences. It is suggested that concurrent sentences would have been appropriate in relation to those offences. We must look at the overall totality. The approach of the judge was to try to make an assessment in relation to each charge, bearing in mind totality, and then to make all sentences consecutive. He could have adopted a different approach. It would have been proper to have assessed the individual criminality in each case, to have imposed a proper sentence in relation to that criminality and then, considering totality, to have made the sentences concurrent or partly concurrent. This latter approach commends itself to us but the judge was entitled to use the approach he did. He arrived at an overall sentence of 48 months.

12. Before we deal with the totality we turn to the other ground which was that insufficient discount was given for the pleas of guilty. The judge did not indicate his starting point. He should have done so. This court has said repeatedly that when a discount is being given the judge should give an indication of his starting point not only to indicate to the applicant the discount which he has been given but also to assist this court, if the matter is appealed, in its assessment of the propriety of the sentence. We consider that the judge must have had in mind a discount of 20-25%. This would indicate that he took a starting point of about 5 years. Would 5 years be a proper starting point, given the overall criminality, and would 20% be a proper discount to apply to it ? We have no hesitation in adopting the words the judge used. These were, indeed, unpleasant offences and the courts must demonstrate that they will not tolerate the use of violence and threats to intimidate innocent civilians so as to extort money from them and their families. We are satisfied both that a starting point of five years would have been proper and that a discount of one year would also have been proper, That being so, there is nothing which calls for us to interfere with the sentences imposed. The application for leave to appeal against sentence must be refused.

Representation:

Mr. Alain Sham (Crown Prosecutor) for the Respondent.

Mr. Shaun Kelly assigned by D.L.A. for the Applicant.