HKSAR v. Wong Yin Chak

CACC 126/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 126 OF 2004

(ON APPEAL FROM DCCC Nos. 1070 of 2003)

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BETWEEN

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Before:  Hon Stuart-Moore, VP and Lugar-Mawson J in Court

Date of hearing: 17 December 2004

Dates of judgment: 17 December 2004

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J U D G M E N T

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Hon Lugar-Mawson J (giving the judgment of the Court)

1.The Appellant, Wong Yin Chak, and a seventeen-year-old youth (D2), were charged with two charges of blackmail, contrary to section 23(1) of the Theft Ordinance, Cap 210.  On 8 March 2004, after trial before Deputy Judge A. Wong in the District Court, the Appellant and D2 were convicted of the first charge, but acquitted of the second charge.

2.On the same day, the Judge, sentenced the Appellant to 4 years’ imprisonment for this offence.  Later, after reports, D2 was sent to a Training Centre.

3.The single judge granted the Appellant leave to bring this appeal against sentence on 16 November 2004.

Facts

4.The two victims, a man and wife, operated a newspaper stall at the junction of Percival Street and Hennessy Road in Causeway Bay.

5.At 3:05 a.m. on 19 August 2003, while the man, was conducting his business alone, two men came to the stall and demanded money from him.  When he questioned them about this they splashed Coca-cola over his stock and ran away.

6.The lady came to the stall at 3:30 a.m. and took over its operation from her husband, who returned home.  At 6:15 a.m., while she was alone at the stall, the Appellant and D2 turned up.  The Appellant asked her for a “tor tei” fee (a protection fee).  He asked her for $1,000.  The lady asked if it was a rule to pay such a fee, as she had never heard of it.  The Appellant said that it was the rule.  He went on to say that every newspaper stall had to pay “tor tei” and that once payment was made nobody should cause them trouble.  If they did, then she was to give him a call.  He also told the lady to confirm with her neighbours that they were paying “tor tei”.  The lady replied that she had never heard of such payment and that, as she was not the boss, she could not make a decision about payment.  She suggested that they return at noontime.  The Appellant and D2 then left without saying anything further.  The lady said that both D2 and the Appellant spoke to her in an “impolite manner’.  They did not return at noontime on 19 August. 

7.D2 and the Appellant, however, returned on 21 August at 6:15 a.m., when the lady was alone at the stall.  D2 asked her if she had spoken to her boss, and if she had confirmed with her neighbours that they had paid “tor tei”.  She replied that she had, and none of them had said that a payment had been made.  The Appellant and D2 again asked if she could make the decision to pay.  She gave a similar answer to the one she had given them on 19 August.  The two men left, but returned about 10 minutes later.  This time, without saying anything, the Appellant opened a can of Coca-cola and spilt its contents over the stall wetting the newspapers on display.  The two men then left and the lady made a report to the police.  She later identified the Appellant and D2 at an identification parade.

8.The Appellant has a chequered criminal record.  Starting at the age of 14, he has acquired 8 previous convictions for a variety of offences, including theft, assault occasioning actual bodily harm, possession of dangerous drugs, unlawful sexual intercourse with a girl under 16 and obtaining property by deception.  However, he has no previous conviction for blackmail and no conviction for a triad-related offence.

The Judge’s approach to sentence

9.In his reasons for sentence, the Judge noted that there was no evidence that either D2 or the Appellant claimed to either stallholder that they had a connection with a triad society; that there was no use or threat of violence towards the lady; and that the Appellant, aged 32, was married with two young children.  The Judge was of the view that an offence of this sort should not be tolerated; that legitimate traders should be protected so that they could run their business safely; and that the sentence imposed should have a deterrent effect.  He adopted a 4-year starting point and, as he found no mitigating factors in the Appellant’s favour, proceeded to pass that sentence.

Grounds of Appeal

10.In his home-made grounds of appeal against sentence, the Appellant states that after his last release from prison in July 2003, he was determined to turn over a new leaf and had found two jobs, one as a delivery worker, the other as a dispatcher.  His children are in Primary 2 and Primary 4 and he wishes to be with them.  His mother, who is 56, suffers from diabetes and hypertension, and needs his care.

Discussion

11.There are no guidelines laid down for this type of offence (see: R v. Lau See Kau, CACC 573/1995 (unreported)).  In her skeleton submission, Miss Rosaline Leung, for the Respondent, drew our attention to the decision in HKSAR v. Cheung Wan Ing [2000] 3 HKC 762.  In that case the defendant, who was accompanied by four other men, entered a restaurant, identified himself to its manager as a “tor tei” (a local tough guy) and told the manager they would protect the restaurant.  A subsequent meeting was arranged, at which undercover police were present.  The defendant came alone, claimed that he was a member of a triad society; that all the local businesses were under its protection; and that the businesses which had been reluctant to pay had been “kicked” into agreement.  The defendant then demanded “tor tei” of $5,000 per month.  He was immediately arrested and charged with blackmail.  He pleaded guilty in the District Court and was sentenced to 2½ years’ imprisonment.  The judge arrived at that figure after taking a starting point of 4 years.  The defendant  appealed, arguing that his sentence was manifestly excessive. 

12.This Court dismissed his appeal, saying that the 4-year starting point was not manifestly excessive in a case that involved demands for significant sums of money on a regular basis, coupled with threats or suggestions of violence.  The Court, however, went on to indicate that 4 years’ imprisonment might not be the appropriate sentence for a single man holding himself out to be the local bully boy in order to exact a few hundred dollars from shopkeepers.

13.We are satisfied that, despite the fact that he was accompanied by D2 and damaged the stall’s stock, the Appellant falls into that lower category of offenders.  He made no threats of physical violence towards either of the stallholders; neither did he claim to have a triad connection.  He made a one-off demand rather than a demand for the regular payment of protection fees.  There is no evidence that he has triad connections and his record, bad though it is, as we have already said, contains no convictions for blackmail or triad-related offences.  In our view the 4-year sentence the Appellant received is manifestly excessive and we are of the view that a starting point of 3 years’ imprisonment is appropriate for his offence.  We, however, agree with the Judge that the Appellant had no mitigation permitting a further reduction of that sentence.

Decision

14.We therefore allow the appeal and quash the sentence of 4 years’ imprisonment.  In its place we pass a sentence of 3 years’ imprisonment.

Ms Rosaline S Y Leung, SGC, for the HKSAR

The Appellant, in person