HKSAR v. Wong Ching Ying

HCMA 474/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 474 OF 2005

(ON APPEAL FROM KTCC 2546 OF 2005)

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BETWEEN

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Before: Deputy High Court Judge To in Court

Date of Hearing: 26 August 2005

Date of Judgment: 26 August 2005

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J U D G M E N T

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The Charges

1.The Appellant was convicted after trial of one charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210 (the 1^st Charge”), two charges of common assault, contrary to common law and section 40 of the Offences Against the Person Ordinance, Cap 212 (the “2^nd Charge” and the “4^th Charge”) and one charge of doing an act tending and intended to pervert the course of public justice, contrary to common law (the “3^rd Charge”).  He was sentenced to 18 months’ imprisonment on the 1^st Charge, 1 month’s imprisonment on the 2^nd Charge, 12 months’ imprisonment on the 3^rd Charge and 3 months’ imprisonment on the 4^th Charge.  The sentences on the 1^st, 2^nd and 3^rd Charges are to be served consecutively while the sentence on the 4^th Charge is to be served concurrently, making a total sentence of 31 months’ imprisonment.  The Appellant now appeals against both conviction and sentence in respect of the 1^st, 3^rd and 4^th Charges.

2.The victims of these charges are husband and wife (PW1 and PW2 respectively) who worked together as hawkers.  On a day in March 2004, the Appellant approached their hawking stall claiming to be the “tor dei” and demanded a “tor dei fee” of $10,000 (the 1^st Charge).  PW1 replied that he did not have so much money.  The Appellant threatened him saying that if he set up his stall there he would be beaten whenever he was seen.  PW1 was afraid and asked for the fee to be reduced, but the Appellant refused and kicked his handcart.  Then PW1 and PW2 pushed their handcart away and left.  PW1 hawked at the same location again at the end of March 2004.  The Appellant saw him and pushed at his cart.  PW1 left and did not hawk there again.  He did not report the incidents to the police.

3.On 8 October 2004, as PW1 was dining at a restaurant, the Appellant glared at him and punched his face and chest once (the 2^nd Charge).  PW1 ran away.  The Appellant gave chase and threw a bottle at him.  PW1 made a report to the police.  Subsequently, he was required to attend court as a witness at the Appellant’s trial for blackmail on 12 April 2005.

4.On 12 February 2005, while PW1 was on his way to a market, the Appellant ran up to him and said “Don’t give evidence in court or you will be beaten whenever you are seen” (the 3^rd Charge).  PW1 refused.  The Appellant punched him twice on the chest (the 4^th Charge).  PW1 ran away and made a report to the police.

5.The Appellant elected to give evidence.  His defence was that he was being framed up.  He said he had once caught PW1 cheating while gambling and he scolded PW1.  Thereafter they did not gamble together and he had not come across PW1 for several years.  He denied coming across PW1 in March 2004 and demanding “tor dei” fee from PW1.  He encountered PW1 in a restaurant in October 2004 and had a quarrel over the old cheating matter.  They pushed and shoved one another but he did not punch PW1.  He saw PW1 again at the market in February 2005 and scolded PW1 for framing him up.  Then PW1 replied “For sure, I will frame you up”.  He denied punching or threatening PW1 not to give evidence.

Appeal against conviction

6.The Appellant’s complaint was that the learned magistrate did not believe him and he was not given the benefit of doubt.  He referred to the inconsistencies between PW1’s evidence in court and his witness statements and to the inconsistencies between PW1’s evidence and PW2’s over the incident in March 2004.  He challenged the credibility of PW1’s evidence because the alleged blackmail in March 2004 was not reported until October 2004.  All these have been rehearsed at trial by his counsel and had been carefully considered by the learned magistrate.  He rejected his counsel’s submission and in my view rightly so.  In the light of the Appellant’s defence, the learned magistrate had also considered PW1’s previous convictions for gambling when assessing PW1’s credibility.  The Appellant’s appeal was essentially an appeal against the learned magistrate’s finding of fact and his assessment of credibility of witnesses.  These are not matters which an appellate court will interfere.  The Appellant’s appeal against conviction must be dismissed.

Appeal against sentence

7.Apart from reiterating his innocence, the Appellant offered no reason why the sentences were inappropriate.  The learned magistrate adopted a starting point of 18 months’ imprisonment for the 1^st Charge of blackmail, 12 months’ imprisonment for the 3^rd Charge of perverting the course of justice, 1 month’s imprisonment for the 2^nd Charge of common assault and 3 months’ imprisonment for 4^th Charge of common assault.  These starting points are, in my view, appropriate in the circumstances.

8.There is nothing that could be said about his background by way of mitigation.  The Appellant has twelve previous convictions, most of which were related to offence of violence including two previous convictions for blackmail in 1979 and 1981.  He was last convicted of common assault and assaulting a police officer in December 2002.   In the circumstances, the sentences are in my view appropriate.  The appeal against sentence is also dismissed.

Conclusion

9.The Appellant’s convictions were well supported by the learned magistrate’s finding of fact.  They were neither unsafe nor unsatisfactory.  The sentences were neither wrong in principle nor manifestly excessive.  Accordingly, the Appellant’s appeals against both conviction and sentence in respect of the 1^st, 3^rd and 4^th Charges are dismissed.

Mr Liu Yuen Ming, Senior Government Counsel of the Department of Justice, for the Respondent

Appellant, in person