HKSAR v. Hung Shing Chung and Another

HCMA790/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 790 OF 2005

(ON APPEAL FROM TWCC 1133 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 11 November 2005

Date of Judgment : 23 November 2005

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J U D G M E N T

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Background

1.Both appellants appeal against sentence only.

2.The appellants each were convicted after a joint trial of an offence of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.  The 2^nd appellant was separately convicted of an offence of criminal intimidation, contrary to section 24(c)(i) of the Crimes Ordinance, Cap. 200.

3.Each appellant was sentenced to 12 months’ imprisonment in respect of the offence of claiming to be a member of a triad society.  The 2^nd appellant was sentenced also to 12 months’ imprisonment in respect of the offence of criminal intimidation of which 9 months were to be served concurrently with the sentence imposed for the triad offence.  That resulted in a totality of 15 months’ imprisonment for the 2^nd appellant.

Facts

4.The facts of the case as found by the magistrate were that on a day in May 2004, the victim (PW1), a minibus driver, placed his minibus in a queue at the Mongkok minibus terminus while waiting for passengers.  He was then asked by the 1^st appellant a supervisor at the Terminus to let another minibus join the queue ahead of him.  That was a valid request as the other minibus had been driving a route which entitled it to rejoin the queue at a certain place, and the 1^st appellant was entitled to give the direction to PW1 that he did.   PW1, however, refused to make way for the other minibus and an argument ensued between him and the 1^st appellant.

5.About five days later when PW1 had again placed his minibus in the queue at the Mongkok terminus, he was approached by the 1^st appellant who, on this occasion, was also accompanied by the 2^nd appellant and another man.

6.The 1^st appellant then said to PW1 : “I am Wo Hop To and I look after this terminus”.  The 1^st appellant then asked the 2^nd appellant and the other man to negotiate with PW1 and then left the scene.  After the 1^st appellant had gone, the 2^nd appellant said to PW1 : “We are Wo Hop To and we look after this terminus.  Do not drive anymore otherwise you will be responsible for anything that happens.”

7.The magistrate accepted in his findings of fact that although the 2^nd appellant said these words, the 1^st appellant knew before he left the scene that the 2^nd appellant or the third man would threaten PW1 in some such way so as to prevent him driving in the Mongkok terminus again.

8.PW1 however did continue to drive in the Mongkok terminus for about another month until on one occasion, but not at the terminus, he was seriously assaulted.  I am told, and must accept as did the magistrate, that this subsequent incident had no connection with the appellants.

9.Accordingly, Mr Donald for both appellants urges upon me that following this incident PW1 continued driving without any interference by either appellant, and I deal with this appeal on that basis.

The appeals

10.Each appellant complains that his sentence was wrong in principle and manifestly excessive.  So far as the suggested errors of principle are concerned, Mr Donald argues firstly that the magistrate overlooked an important piece of mitigatory evidence to the effect that the 1^st appellant, as a supervisor of the minibus terminal, had in fact authority to suspend the victim from driving for up to seven days.

11.Mr Donald says that this error is of general effect and applies equally to all sentences imposed.  In regard to this error Mr Donald relies on certain comments made by the magistrate at the time of sentencing.  The exchange between counsel and the magistrate went like this :

“COURT:	Well, I mean this was a similar type of matter where they were stopping a man earning a living.
MR YU: COURT:	No.  May I address your Worship in this way.  If I’m wrong, please correct me.  According to my understanding that, you know, they’re all living in a peaceful way, and the victim is also one of the — a member of the route.  And just because Mr Ng, the DW, okay, who has been work arranged by the terminus to allow him to take priority in the queue, and the victim, PW1, Mr Li, did not allow him, he was disobeying the rule in the first place.  That’s my understanding.  It’s not a case that, you know, somebody make use of this excuse, triad language, to force somebody out of his gainful employment.  It’s not the case like that, your Worship.  That’s my understanding.
	Well, my recollection was that they were trying to stop him driving there.  He was not going to be allowed to drive there.
MR YU:	We know that …
COURT:	After this incident he was not going to be allowed to drive at that bus stop.
MR YU:	After the incident?
COURT:	Yes.
MR YU:	No.  After the incident …
COURT:	There were two incidents.
MR YU:	Yes.
COURT:	There was the first one.
MR YU:	Yes.
COURT:	And then the second one.
MR YU:	Yes.  My understanding — if I’m wrong, please correct me, your Worship — there is the rule that if any member of the route in breach of the regulation, the supervisor, he have the right to stop the member who was at fault for one week suspension.  That is my understanding.  Simply, there’s a rule …
COURT:	Well, my recollection is one week didn’t come out in the trial at all.  It was nothing like that at all.
MR YU:	That’s a bit regret.  My understanding — I was told that he got the right to suspend any driver who was at fault for one week of service in that terminus, that route.  That’s my understanding, your Worship.  Yes.  Yes, thank you.
COURT:	Well, carry on.”  (emphasis added)

12.On the basis of these comments Mr Donald suggests the magistrate had overlooked the evidence of the 1^st appellant having power to suspend PW1 from driving for up to seven days for not complying with the 1^st appellant’s directions as to making room in the queue for the other minibus.  Mr Donald says that evidence should have been taken into account as mitigation on behalf of both the 1^st and 2^nd appellants.

13.In my view, the magistrate was not necessarily unaware at the time of sentencing of the 1^st appellant’s power to suspend drivers for seven days.  Looking at the comments of the magistrate in context it is not clear that the magistrate was suggesting there had been no such reference in the trial evidence at all.  Though the context is ambiguous, it may well have been that the magistrate was suggesting that there was no evidence that the threat uttered was limited to a seven-day period.

14.But in any event, I have difficulty in seeing how it is relevant to either appellant’s sentence that the 1^st appellant had the power to suspend PW1 from driving for seven days if he was found in breach of the minibus terminus rules.

15.The fact that a person may have been able to achieve or partially achieve a state of affairs lawfully is rarely a mitigating factor in circumstances where he attempts to achieve the same state of affairs unlawfully.

16.In the present case, it seems to me to be irrelevant that there was a proper procedure available for the 1^st appellant to discipline minibus drivers, when the court is sentencing both the 1^st and 2^nd appellants for criminal offences which go far beyond any proper exercise of a disciplinary power by the 1^st appellant.  It is no mitigation for moneylenders who try and recover loans by criminal intimidation that there may have been a proper legal procedure available to them to recover those loans.

17.For that reason even if Mr Donald is correct in suggesting that the magistrate at the time of sentence had forgotten that the 1^st appellant had power to suspend PW1 from driving for seven days (which contention in my view is in any event based on an ambiguous section of transcript) I do not think it matters, as the 1^st appellant’s power to suspend PW1 from driving through proper procedures is wholly irrelevant to the sentence imposed on himself and the 2^nd appellant.

18.The second error of principle Mr Donald suggests is that the magistrate wrongly thought that there was a “tariff” involved in sentencing for an offence of claiming to be a triad.

19.That contention is based on what the magistrate said at the time of sentence :

“Having considered all matters relating to this, bearing in mind that D1 does not have a previous record for such an offence and D2’s record for such an offence is very old, and bearing in mind the circumstances of this case where it was a public light bus driver who was earning his living who was claimed against, I see no reason to deviate from the tariff for such an offence, and I take a starting point for each of you of 12 months’ imprisonment. …” (emphasis added)

20.Mr Lee for the respondent, while accepting there is no “tariff” for this sort of offence suggests the magistrate was simply using the word in a loose sense, perhaps in the sense of a “usual” sentence on the facts before him.

21.That may well be so, but in the context in which the phrase appears there seems to me to be some force to Mr Donald’s suggestion that at the time of sentencing the magistrate believed there was a tariff or guideline sentence for such offences.  I accept he may well have thought so.

22.It is plain from AG v. Lee Chi Man (1980) HKLR 483 at 489 and R. v. To Luen Shun [1995] 1 HKCLR 318 that there is no tariff in respect of this offence and although a sentence of imprisonment is appropriate other than in exceptional circumstances, the length of that sentence depends very much on the facts of the case : see also R. v. Wong Kin Kwok CACC241/1991 (unreported).  Accordingly, the magistrate was wrong in principle to suggest at the time of sentencing that a “tariff” applied in sentencing for this sort of offence.

23.I look therefore at sentence afresh so far as both the appellants’ offences of claiming to be a triad are concerned.

The triad offences

24.The offences occurred at the victim’s place of employment in response to a dispute several days earlier.  The offences were committed in the context of a threat to the victim’s livelihood.  That threat was designed to bar the victim from the Mongkok minibus terminus on a permanent basis.   The claim by both appellants was made by way of a group approach to PW1.  This was not a case of a one-on-one confrontation, but was a claim each appellant made in a context which emphasised its seriousness.

25.In these circumstances, there can be no merit in the suggestion by Mr Donald that the claim by each appellant was simply “wild and wooly words”.  This was a planned approach to PW1 by three men in response to an incident which had occurred some five days earlier.  It was a calculated and deliberate claim by each appellant, designed to emphasise their authority in the Mongkok minibus terminus.

26.I appreciate that so far as the offence went it consisted entirely of words.  I am constrained to proceed on the basis that the appellants took no action against PW1 following the words used.

27.In Lee Chi Man (1980) HKLR 483, the Court of Appeal emphasised that for an offence such as the present the cardinal duty of a court is to pass a sentence commensurate with the gravity of the offence.  The whole of the circumstances of the offence must be taken into account.  In determining what is commensurate a court is entitled to take into account any activity of a triad nature undertaken by the offender, and connected with the claim, as an aggravating factor.

28.In the present case, the coupling of a serious threat with the claim to membership of a triad society is an aggravating factor in sentencing for the latter offence.  In my judgment, a starting point of sentence of 12 months’ imprisonment, as indeed was adopted by the magistrate, is appropriate in respect of each appellant so far as these offences are concerned.  

The criminal intimidation offence and totality

29.I turn to the 2^nd appellant’s offence of criminal intimidation in respect of which the 2^nd appellant was sentenced to 12 months’ imprisonment.  There was no real challenge made to the sentence before me apart from Mr Donald’s complaint that it should have been made wholly concurrent to the offence of claiming to be a member of a triad society.  There is no doubt that the threat, for the reasons already stated in this judgment, was serious and required a deterrent sentence.  In my view, the sentence imposed for this offence of 12 months’ imprisonment was appropriate.  

30.I turn now to consider the question of totality of sentence so far as the 2^nd appellant is concerned.

31.In my view, the governing principle is this : where in the course of sentencing for a particular offence, an aggravating factor is taken into account which is itself the subject of an offence for which the offender is also sentenced, then unless there is good reason not to do so some concurrence of sentence will be appropriate.  To order the sentences to be served wholly consecutively, in those circumstances, will have the effect of the offender being penalised twice for the same activity.

32.In the present case, the threat uttered by the 2^nd appellant forming the basis of the criminal intimidation offence has in my view sufficiently been taken into account as an aggravating factor in respect of the sentence imposed by me upon him for his offence of claiming to be a triad and the two sentences should be served wholly concurrently. 

Conclusion

33.Accordingly, the appeals against sentence are allowed to the extent I have set out.  That effectively means that the sentences imposed by the magistrate in respect of each charge faced by the appellants stays the same, but that so far as the 2^nd appellant is concerned the two sentences imposed on him will be served concurrently.  That is a totality of sentence for each appellant of 12 months’ imprisonment.

Mr Kelvin Lee, GC, of the Department of Justice, for the Respondent

Mr Richard Donald and Mr Oliver Davies, instructed by Messrs Jal N. Karbhari & Co.,  for the 1^st and 2^nd Appellants