HKSAR v. Chen Wei Li

CACC 402/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 402 OF 2004

(ON APPEAL FROM DCCC 669 of 2004)

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BETWEEN

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Before: Hon Stuart-Moore VP and Tang JA

Date of Hearing: 16 March 2005

Date of Judgment: 16 March 2005

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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):

Background

1.On 18 August 2004, the applicant was sentenced by Judge M. Poon in the District Court to a total of fifty months’ imprisonment on two charges of blackmail (charges 3 and 5), two charges of theft (charges 4 and 6) and breach of condition of stay (charge 7).  Each of the blackmail offences was committed with an unknown male accomplice.  This case was concerned with a typical example of blackmail by a prostitute, as Mr Suen Kam-hee for the applicant expressed it in his written argument on which it was not necessary to call upon him to elaborate. 

2.The applicant pleaded guilty to all the charges and now seeks leave to appeal against the totality of her sentence.

3.The victim of blackmail in charge 3 answered a magazine advertisement, in which the applicant purported to offer sexual services, and made an arrangement to see her at his home address.  Their meeting occurred at about midnight on 29 April 2004.  Soon after the applicant arrived there, she made a call on her mobile telephone.  This was followed, some short time later, by the victim’s home telephone being rung.  The male caller told the victim to pay $5,000.  This demand was backed by threats that if he failed to do so, his ‘brothers’ would go to his flat to beat him up and that he would be thrown from the building. 

4.Meanwhile, the applicant began to search the victim’s flat.  She was unable to find any money, having already been paid $700 in advance for the services she had purported to offer, but before leaving the victim she took from him a further $120 as well as his mobile telephone and Octopus card (charge 4). 

5.On the following evening, an undercover officer, posing as a potential customer, dialled the same telephone number which the previous victim, named in charges 3 and 4, had used.  Putting the matter briefly, the applicant turned up at the San Diego Hotel where the officer had taken a room.  When the officer expressed the wish for someone younger to replace her, the applicant made a telephone call and then passed the receiver across to the officer to speak to the man who was at the other end of the line.  The man informed the officer that the applicant had to be paid $500.  After this, the applicant took the receiver back and said “30 years old, very frightened” and again passed the telephone to the officer.  This time, the officer was told that “they” were just downstairs and that if he failed to make payment they would come up to beat him. 

6.When the officer repeated this conversation to the applicant, she said that if he refused to pay, a group of escorts would certainly come to beat him.  The officer then negotiated to pay the applicant $300 and, when he did so, he used specially marked $100 notes.  At about that time, the applicant received a call on her mobile telephone after which she demanded $6,000 (charge 5) from the officer, telling him that if he did not pay, her “men” downstairs would come up to beat him.  The room telephone then rang and a demand for $6,000 was made by the male caller using the same threats as before if the officer failed to pay. 

7.While this was happening, the applicant began to search through the officer’s luggage.  In the end, the applicant took all of his money which, like the $300 she had been handed earlier, was marked.  The further sums taken amounted to six $500 banknotes, three more $100 notes and nine RMB100 notes.  She then left the room, taking all this money with her (charge 6).

8.The applicant was stopped in the corridor as she came out of the officer’s room.  She said, after she had been arrested, that if she had not taken the money she would have been beaten by her bosses.

9.On 6 May 2004, the applicant was identified by the victim in charges 3 and 4.

10.The applicant came to Hong Kong on 1 May 2004, using a two-way permit which prohibited her from taking up employment of any kind while in Hong Kong (charge 7).

11.On each of the blackmail charges, the judge adopted a starting point of thirty months’ imprisonment and, for the related theft offences, she took fifteen months as a starting point.  These sentences were then discounted by a third to twenty months and ten months respectively, to reflect the pleas of guilty. 

12.In view of the prevalence of the kind of blackmail offences disclosed in charges 3 and 5, the prosecution had applied under section 27 of the Organised and Serious Crimes Ordinance, Cap. 455, for enhancement of those sentences.  The judge agreed to this course and decided that enhancement by fifty per cent was appropriate. 

13.On charges 3 and 4, the judge passed concurrent sentences of thirty and ten months respectively and, on charges 5 and 6, the same sentences were imposed but she ordered that eighteen months of the sentence on charge 5 should run consecutively to the other sentences, making forty-eight months in total.  A further two months’ imprisonment, to run consecutively, was imposed on charge 7.

The application

14.Mr Suen’s submission on the applicant’s behalf was that a total of fifty months’ imprisonment on charges 3 to 7 was manifestly excessive having regard to the overall criminality involved in the offences.  He also argued that the consecutive term of eighteen months on charge 5 failed to reflect a proper consideration of the totality principle in sentencing and that a fifty per cent enhancement was too high in all the circumstances.

15.We do not need to dwell upon the argument in any depth.  We have to say, with due respect to the judge, that a total sentence of four years’ imprisonment, following pleas of guilty to two blackmail offences of the kind described in the present case and in respect of a twenty-seven year old woman who had no previous convictions, strikes us as manifestly excessive.

16.Mr Suen’s researches led him to the decision of this court in HKSAR v. Xie Chun-mei, CACC 285/2003 (unreported) where the facts were so remarkably similar to the present case, it is unnecessary to recite them.  Whilst that case provides no tariff guidelines for offences of this kind, we are supported in our view that the sentence in the present case is far too long.  In Xie Chun-mei,the sentencing judge, by taking a higher starting point for each offence but making the sentences wholly concurrent, adopted a forty-two-month starting point for each of the two blackmail charges which, following conviction after trial, he enhanced by twenty-five per cent to fifty-two-and-a-half months.  These sentences were imposed concurrently.  This court did not interfere with this aspect of the sentence although there was some reduction to the length of two concurrent sentences for breach of condition of stay to which the appellant had pleaded guilty in that these were reduced to two months, bringing the appellant’s total sentence to fifty-four-and-a-half months. 

17.If the appellant in Xie Chun-mei had pleaded guilty to the blackmail charges, leading to the discounting by a third of the starting point of forty-two months and a subsequent enhancement by twenty-five per cent, the end result would, as Mr Suen pointed out, have been that she would have received a sentence in the region of thirty-five months for these offences.  We are satisfied that a sentence of this kind would be appropriate in the present case.

18.In this case, the judge properly adopted a starting point of two-and-a-half years’ imprisonment for each blackmail offence which she discounted by a third for the guilty pleas.  However, it is the enhancement of these sentences by fifty per cent which has caused us concern because, while there may be blackmail offences which are so serious, so sophisticated and so prevalent that enhancement as high as this may be justified, we are satisfied that this was certainly not such a case. 

19.In our opinion, on the present facts, a twenty-five per cent enhancement of sentence would have met the justice of the case.  By this route, the thirty-month blackmail sentences would become twenty months after discount for the pleas and, with enhancement by a quarter, they would become sentences of twenty-five months.  These were, as the judge rightly said, quite separate offences deserving at least in part, consecutive terms of imprisonment.

Conclusion

20.Having regard to the conclusions we have reached, we shall grant leave and, treating the hearing as the appeal, we quash the sentences on charges 3 and 5.  In their place, we impose on charges 3 and 5 sentences of twenty-five months’ imprisonment and the sentence on charge 5 will run consecutively to the sentence on charge 3 to the extent of only ten months, making thirty-five months in total on these charges.  The remaining ten-month concurrent sentences on charges 4 and 6 for theft are left undisturbed and, equally, we will not interfere with the two-month consecutive sentence on charge 7.  This, therefore, leaves an overall sentence of three years and one month’s imprisonment, a reduction of thirteen months on the sentence originally imposed.  To this extent, the appeal is allowed.

Anonymity of the victim

21.Finally, whilst it has nothing to do with the merits of this appeal, we were disturbed to see that the Department of Justice is still identifying by name the victims of blackmail in the charge sheet and for all purposes throughout the trial.  There may be a limited number of ‘blackmail’ cases where the victim will have no objection to being identified but, in the vast majority of cases, identification of the victim will lead to great embarrassment.  It is this very factor which is rightly said to lead to the victims of such a crime being reluctant to come forward.  It is small wonder that this is so when any hope of their anonymity being preserved is lost at the trial stage where the proceedings, by their very nature, are held in public.

22.We strongly disapprove of the general practice of identifying by name, address or in other ways the victims in such cases and we consider that, yet again, we should send a message to the Department of Justice that considerable injustice may be done if this practice is allowed to continue.  There can be no difficulty whatever in identifying blackmail victims by the use of letters of the alphabet (with their names and addresses obliterated on the copy statements served to all the parties at court) and this is a normal procedure in other jurisdictions.  Indeed, it is within the experience of this court that this has been done in Hong Kong.  Somehow or other, this obvious and sensible practice has apparently been allowed to fall into disuse which reveals a measure of insensitivity in handling a type of case which requires a high degree of sensitivity.

23.Returning to the present circumstances, we have been informed that the victim of the blackmail in charge 3 did not give permission for his name to be brandished in open court and, unfortunately, no attempt was made to shield his identity.  If the Hong Kong Police and the Prosecutions Department wish to have the continued cooperation of the public in prosecuting blackmail offences, the present practice of naming the victim in court and elsewhere on the case papers, as happened in this case should, in the absence of specific permission from the victim, cease forthwith.  We are extremely grateful to Mr David Leung, who did not appear in the court below, for having undertaken to bring this to the notice of those more senior to himself in the Department of Justice.

Mr David Leung, SGC, of the Department of Justice, for the Respondent.

Mr Suen Kam Hee, instructed by the Director of Legal Aid, for the Applicant.