HKSAR v. So Chi Wah and Another

cacc 358/2004 &
CACC 365/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NOS.358 OF 2004 & 365 of 2004

(ON APPEAL FROM dccc 282/2004AND 283/2004)

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CACC 358/2004

BETWEEN

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CACC 365/2004

BETWEEN

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Before:   Hon Stuart-Moore, WooVPP and Lugar-Mawson J

Date of Hearing:  30 November 2004

Date of Judgment: 30 November 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1.So Chi-wah (D1), was convicted in the District Court (CACC 358/2004) on 20 July 2004, following a trial before Deputy Judge Dufton, on charges of (1) claiming to be a member of a triad society and (2) acting (on a different date to the first charge) as a member of a triad society.  He was sentenced on 10 August 2004 to nine months on the first charge and to a consecutive term of fifteen months’ imprisonment on the second.  In addition, two suspended sentences, each of two months’ imprisonment, were activated consecutively, making twenty-eight months in all.

2.D1 now seeks leave to appeal against sentence.  He did not pursue his application relating to conviction and this was, therefore, dismissed.

3.Lee Wai-hung (D7) was also convicted in the same trial as D1 on a charge of acting as a member of a triad society.  He was sentenced to nine months’ imprisonment.  He is in a similar position to D1 in that he has also chosen not to proceed with his application for leave to appeal against conviction.  Accordingly, we have dismissed this.  No complaint is made in these proceedings about his sentence of nine months.  There is, however, a written application seeking leave to appeal against this sentence and we can now formally dismiss this.

4.Following his conviction in CACC 358/2004, Lee Wai-hung pleaded guilty in the District Court on 6 August 2004 (CACC 365/2004), again before Deputy Judge Dufton, to two charges on a charge sheet containing fifteen charges against twenty-one defendants for triad-related crimes.  He was the seventeenth named defendant.  His pleas of guilty were to charges 10 and 14 alleging, on different dates, that he had acted as a member of a triad society.  On these charges, he was given an effective additional term of fifteen months’ imprisonment to the sentence of nine months in CACC 358/2004, making twenty-four months in all.  Lee Wai-hung seeks leave to appeal against the length of the term of imprisonment arising only from these charges.

5.The facts in each trial were relatively straightforward.  They arose from the undercover investigations of a police officer (PW9) who infiltrated a gang of triads.

The facts in CACC 358/2004

6.The evidence called by the prosecution on the first of the charges against D1 was that on 12 November 2002 he preyed on PW9, who was purporting to be a hawker, and two others who were hawking pirated compact discs, by demanding protection money from them.  Amongst other things, D1 said: “We are all brothers of Shing Wo but you still have to pay rent for setting up a stall”.  One of the hawkers then paid him $250 and D1 drove away.

7.So far as the second charge is concerned, on which D1 was convicted (charge 3 on the charge sheet), PW9 gave evidence about how he, together with others, went to the ‘Big Echo Karaoke’ on 5 May 2003.  D1 took PW9 and others into a karaoke room and told them to sit down while he found out what was going on.  He said that ‘Chu Gor’ had ‘blown the whistle’.  Later, he referred to seventy or eighty people belonging to Shing Wo having assembled in two of the karaoke rooms.  At about 10:40 p.m., D1 came back into the room to announce that everyone should take taxis to go to Jordan and wait at the junction of Shanghai Street and Saigon Street.  When the group arrived there, however, D1 instructed them all to leave.

8.Lee Wai-hung (D7) was also charged in relation to the ‘Big Echo’ incident.  PW9 identified him as one of those in the karaoke room with him when D1 told those present that there were about seventy people there and that they should take taxis to Jordan. 

The facts in CACC 365/2004

9.Lee Wai-hung, on charges 10 and 14, in each case responded to a ‘whistle-blowing’ and then directed violence to be used on the opposite party.

The applications

10.So Chi-wah (D1) was sentenced to fifteen months’ imprisonment on the second of the charges he faced alleging that he had acted as a member of a triad society.  No criticism is made of the nine-month sentence on the first charge.

11.Mr Burkett firstly submitted on D1’s behalf that fifteen months was inappropriate having regard to the role D1 had played which showed that he was neither the ‘whistle blower’ nor an ‘officer’.  D1 was, he contended, a ‘soldier’ who gave directions and, as such, his sentence ought to have been between “fifteen and nine months’ imprisonment”.  Alternatively, Mr Burkett contended that an overall sentence of twenty-eight months was excessive having regard to totality.

12.We can, with respect, accept neither of these submissions.  Mr Burkett was realistic enough to concede that where a defendant’s role is that of a ‘soldier’, the evidence may demonstrate that his participation has gone beyond merely receiving orders.  He accepted, also, that D1 had “directed operations in the Big Echo”.  It was for this reason that he submitted that somewhere between fifteen and nine months was the appropriate level of sentence having regard to the kind of sentences indicated in other cases which have come before this court.  He cited, as examples, HKSAR v Wong Fuk-tak & Ors, CACC 249/1999 (unreported), HKSAR v Wong Sing-chi & Ors, CACC 245/1999 (unreported) and HKSAR v Yeung Chi-keung & Anor, CACC 96/1998 (unreported).  None of these cases is a sentencing guideline case and, as such, provides us with very little assistance.  Furthermore, D1 has appeared before the criminal courts on no less than fifteen occasions and the judge had noted the fact that on his record was a previous offence in 1997 of acting as a member of a triad society.

13.We are satisfied that the sentence of fifteen months was an appropriate sentence for D1 in view of his involvement on that charge and that the twenty-eight months’ imprisonment, which includes the two suspended sentences which are now activated, was not, in totality, inappropriate.  On the contrary, it was not a day too long.

14.Lee Wai-hung, who is also represented by Mr Burkett, was sentenced (as D17) in CACC 365/2004 to a total of fifteen months for acting on two occasions as a member of a triad society.  The judge took fifteen months on each charge as a starting point and then reduced each to ten months to reflect the pleas of guilty.  Looking at totality, the judge concluded that with a nine-month sentence on CACC 358/2004 (which is not criticised in these proceedings) and with ten months on each charge arising from CACC 365/2004, the resulting twenty-nine months was too long.  He, therefore, made five months of the sentence on charge 14 run concurrently, making twenty-four months in all.

15.Again, Mr Burkett argued that for a ‘soldier’, albeit one who gave directions which, as here, amounted to counselling the use of violence, a sentence of “between fifteen and nine months’ imprisonment” was appropriate.

16.In this case, we consider that this submission was wholly unrealistic.  If anything, the totality reveals in Lee Wai-hung’s case a degree of leniency which he had, save for his pleas of guilty, done nothing to earn.

17.The applications made by So Chi-wah and Lee Wai-hung in relation to the sentences each of them received are, for the reasons we have given, dismissed.

Ms Grace Chan, SGC, of the Department of Justice, for the Respondent.

Mr Francis Burkett, instructed by Messers Solomon C. Chong & Co., assigned by the Director of Legal Aid, for D1 and D7/Applicants in CACC 358/2004 and D17/Applicant in CACC 365/2004.