HKSAR v. Lo Chi Yip and Another

CACC000546/1999

CACC 546/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 546 OF 1999

(ON APPEAL FROM DCCC 646/1999)

__________________

___________________

Coram: Hon Stuart-Moore VP, Leong JA and Wong JA in Court

Date of Hearing: 21 July 2000

Date of Judgment: 21 July 2000

______________

J U D G M E N T

______________

Hon Leong JA:

1. The 1st applicant Lo Chi-yip and the 2nd applicant Choi Ping-wing were jointly charged with one count of blackmail and one count of wounding with intent. On the first day of trial, the 1st applicant pleaded guilty to the 2nd count of wounding. On 17 September 1999 after a trial before H H Judge Wilson in the District Court, the 1st applicant was convicted of the first charge of blackmail and the 2nd applicant was convicted of both charges of blackmail and wounding. They were each sentenced to 6 years imprisonment on the wounding charge and 2 years imprisonment on the blackmail charge. 1 year of this sentence is to be consecutive to the 6 years imprisonment, making a total of 7 years imprisonment.

2. The 1st applicant originally applied for leave to appeal against conviction on the blackmail charge and the sentences on both charges. But now he has abandoned his appeal against conviction and that application for leave to appeal conviction is dismissed. The 2nd applicant applies for leave to appeal against conviction and sentence on both charges.

3. The prosecution case is this. PW1 Cheung Wai-chung often patronised the Cowboy Pub in Kowloon. The pub was owned by his relative. He sometimes helped out in serving customers. That gave some customers the impression that PW1 was the boss.

4. On 2 June 1999, in the evening, the 1st applicant came to the pub looking for the boss. PW1 was there at the time. After he was told the boss was not working that night, the 1st applicant left. At about midnight, the 1st applicant came back and this time, he was with the 2nd applicant and another man. They sat at a table and PW1 was asked to join them. PW1 did so and sat at their table. The four of them had a talk. During the talk, the 2nd applicant asked PW1 if he was running the pub to which PW1 replied "No". The 2nd applicant then said "if you take over the business, I will come to collect local bully fee." PW1 understood that to mean protection money would be collected. PW1 then said: "It has nothing to do with me." The 2nd applicant then used foul language and said "You are so fucking cheeky." The two applicants and the third man then got up and left.

5. Subsequently the 1st applicant returned and told PW1 that their big brother wanted to speak to him (PW1) at the outside. PW1 obliged and went outside the pub. He saw the 2nd applicant with 8 to 9 men behind him. The 2nd applicant accused PW1 of being cheeky and punched him. PW1 fell to the ground and the 2nd applicant started to kick him in the face. Someone from the pub went to PW1's assistance and helped him go back into the pub and in the course of this, PW1 heard the 2nd applicant shout "Chop him with knife". In the meantime he had asked someone in the pub to call the police. Later, when he went out of the pub to see if the police had arrived, he was confronted at the door by the 1st applicant holding two knives and the 2nd applicant was standing a few feet from the 1st applicant with the same group of 8 or 9 persons. The 1st applicant attacked him with the knives. He was chopped in both his arms and hands. The attack was seen by three police officers who were in a car passing by the pub at the time. One of the police officers PW3 got out of the car to stop the attack and he had to point his revolver at the 1st applicant before he could stop the attack on PW1. PW1 suffered serious chop wounds to both upper limbs. The 1st applicant was arrested at the scene and the 2nd applicant was not arrested until 12 days later. He was identified at an identification parade by PW1 as one of the assailants.

6. The 2nd applicant did not give evidence nor call any evidence, but his defence as put in cross-examination of the witnesses was that he was not present at the time.

7. The perfected grounds of appeal of the 2nd applicant are the identification evidence of PW1 was unreliable and alternatively in respect of the blackmail charge, there was no immediate demand and there was no evidence of menace in the demand, if any.

8. On identification, Mr Lau for the 2nd applicant submits that in view of the lighting in the pub, the short time PW1 was face to face with the 2nd applicant and PW1 had taken alcohol before seeing the 2nd applicant, PW1's observation of the 2nd applicant was no better than a fleeting glimpse. The Judge should not have relied on PW1's identification evidence.

9. We do not think Mr Lau's submission is sustainable. The evidence showed the opportunity for PW1 to observe the 2nd applicant was much more than a fleeting glance. PW1 saw the 2nd applicant face to face, sitting at the same table and carried on a conversation which must have been more than a few seconds, the 2nd applicant did the talking which focussed PW1's attention. PW1 had the second opportunity of seeing the 2nd applicant when he was assaulted by the 2nd applicant who subsequently ordered the chopping. PW1 had seen the 2nd applicant before in October 1998 so that on the night of the attack, the 2nd applicant was no stranger to PW1. It was a case of recognition. The lighting both inside and outside the pub was adequate. The Judge had also considered whether PW1's observation might have been affected by the alcohol he had consumed prior to seeing the 2nd applicant. The Judge had warned himself along the guidelines in Turnbull. The Judge was entitled to conclude the identification evidence of PW1 was evidence he could rely on to find a conviction. This ground must fail.

10. On the question of whether there was a demand with menaces, the Judge in his judgement found PW1 was quite clear that he was being asked for protection fees. And he was satisfied that "whatever fine point one seeks to put on the 2nd applicant's apparent use of the future tense, the 2nd applicant together with the 1st applicant and the third man, intended an immediate demand with menace." This is shown, the Judge said, by the demeanour, their use of triad slang and, last but not least, by their immediately ensuing actions which occurred within minutes of the victim's failure to pay or failure to offer to pay.

11. We agree to that conclusion of the Judge. The evidence was so clear that the reason the applicants went to the pub was to demand protection money from whoever was the boss. The element of threat was implicit in the demand made at the time. Together with the abusive language used when PW1 indicated that payment had nothing to do with him because he was not the boss, this is more than clear. This was further manifested by the violence that was brought upon PW1 subsequent to his failure to accede to the applicants' demand.

12. In our view the 2nd applicant was rightly convicted of the two charges.

13. On sentence, in the case of the 1st applicant, the Judge took a starting point of 7 years for the charge of wounding. He gave the 1st applicant 1 year discount for his plea because it was only tendered at the last minute. In the case of the 2nd applicant, he adopted a starting point of 6 years because of his lesser role in the wounding charge. The Judge considered this case a very serious one and he considered that substantial deterrent sentences should be imposed. He referred to the injuries suffered by PW1 as appalling albeit not life threatening. PW1's left little fingertip was completely severed, other fingers were fractured and there were multiple nerve and tendon injuries. PW1 had to spent 14 days in hospital and was at the time of trial, 3 1/3 months after the attack, was still on sick leave and was undergoing physiotherapy and pain medication. PW1's left little fingertip remains severed and other fingers are visibly distorted. He cannot hold a pen or chopsticks and is significantly and permanently disabled.

14. Mr Tolliday-Wright for the 1st applicant submits that the starting point of 7 years for the wounding charge was too high having regard to the injuries not being life threatening. He also submits that the applicant should be given the full one-third discount for his timely plea since no time was lost because of his plea. He also submits that in totality the sentence of 7 years imprisonment was too high and the sentence of the two charges should be concurrent.

15. Mr Lau for the 2nd applicant on sentence simply submits that the sentence is manifestly excessive and that the two sentences should run concurrently.

16. In our view this is a case of blackmailing by the applicants who have triad backgrounds. When those threatened failed to meet the applicant's demand, they were dealt with swiftly, summarily and callously by beating and wounding them seriously.

17. In our judgment legitimate business owners are entitled to be protected so that they can run their business safely. The injuries inflicted on PW1, the victim, were serious and they resulted in incapacity. The Judge was right in imposing a deterrent sentence and the starting point of 7 years for a wounding of this nature is nowhere near manifestly excessive.

18. We are also of the opinion that the overall sentences of 7 years for these two charges are not manifestly excessive. However, the only question that remains that we should deal with is in respect of the 1st applicant's sentence on the wounding charge. The Judge only gave the 1st applicant 1 year discount and that was based primarily on his late plea and being caught "red-handed".

19. The 1st applicant had pleaded to the charge of wounding on the first available opportunity, that is, on the first day of the trial. Mr Tolliday-Wright submits that in the District Court, normally on a plea day, a defendant would not have much opportunity for the purpose of considering a plea in the sense that he has time to fully understand the implications of a plea and proceed to plead guilty.

20. This court has indicated in HKSAR v Wong Ka-kuen and another Cr. App. [1998] No. 35 that a full 1/3 discount should be given for a timely plea. The practice of giving one-third discount for a timely plea has now been settled in the recent case of HKSAR v YEUNG Kin-man Cr. App. [2000] No. 20. We do not think that the 1st applicant's plea was untimely. The fact that the Judge only gave him 1 year discount instead of the full one-third is not in accordance with this settled practice.

21. In the circumstances, in respect of the sentence on the wounding charge imposed on the 1st applicant, the discount should be one-third, and it should be 4 years and 8 months imprisonment after the discount. Accordingly, we grant the application for leave to appeal against sentence in the case of the 1st applicant and we reduce the sentence of 6 years imprisonment on the wounding charge to one of 4 years and 8 months. We order the sentence of 2 years on the blackmail charge to run consecutively to the 4 years and 8 months imprisonment, making a total of 6 years and 8 months imprisonment.

22. As regards the sentence in respect of the two charges of which the 2nd applicant was convicted, we see no reason to disturb that sentence. Accordingly his application for leave to appeal against sentence is also dismissed.

Hon Stuart-Moore VP:

23. I agree with the judgment given by Leong JA that the application made on behalf of D2 in respect of conviction must be dismissed. It should be added that D1, who had originally put in an application relating to conviction, did not pursue it and that application we have dismissed. I agree also that the sentence imposed upon D1 must be reduced.

24. It was to the great dismay of this court that we found ourselves yet again confronted by a judge in the District Court who had failed to accord a defendant the customary one-third discount for a plea of guilty where no good reason was shown for a departure from the practice, despite the number of times in recent months and years that this court has had occasion to deal with the topic.

25. The judge gave as one of his reasons for discounting the seven year starting point by only one year in the case of D1, that the Applicant had been arrested "blatantly red-handed and had little or no option (to plead guilty)". Although this was once considered to be a good ground for reducing the discount that otherwise would have been given, this has not been so for quite some time, and for such an experienced judge to have fallen into the trap of believing that this remained a sufficient ground to discount by less than one-third is most unfortunate.

26. The other ground for justifying a reduced discount was said to be the late plea entered on "the very first day of the trial". In some circumstances, that might have been a justification for slightly reducing the discount although we do not seek to encourage that view. This will entirely depend on all the circumstances of individual cases, particularly when considering whether a plea at court on the first day of trial has been a technical manoeuvre resulting in frightened or reluctant witnesses being forced to come to court, or resulting in a prolongation of an investigation that could have been curtailed far earlier if a plea had been indicated at the first opportunity. These are examples and by no means do they provide an exhaustive list.

27. However, in this case, the blackmail charge was to be contested so that, in any event, it made no difference that the plea to the first charge was entered on the day of trial as the private witnesses were to an extent common to both charges. D1 had not jumped bail or contested a voir dire and, for all practical purposes, this was, in the particular circumstances of the case, a timely plea in the broadest sense.

28. The judge described the case as one of the "nastiest cases it (had) been (his) misfortune to hear in the District Court". Undoubtedly, it was a very bad case but bad reasons to justify imposing a longer sentence, even if only by a matter of months, than would otherwise be possible cannot under any circumstances be justified and will inevitably call for the intervention of this court as a matter of principle.

29. Apparently, the principle that being caught red-handed is not a sufficient reason to disallow the full discount where an offender pleads guilty needs to be stated again. Counsel must be able to advise their clients with full confidence as to this aspect of sentencing, and it is neither fair nor sensible that this principle should be dependent upon the whim of the judge before whom the offender appears as to whether the full discount or less than the full discount should be given merely because an offender has been caught red-handed or, putting it another way, has been caught in the act. Counsel cannot properly advise his client that he will receive a discount of one-third if, before one judge, it may be decided that being caught red-handed deserves a discount short of one-third and yet, before another judge, it may be decided that the full discount is appropriate. This is no more than a statement of common sense, but it is an important rule of practice in order to achieve fairness and parity towards all defendants. In any event, the ingenuity of some defences has shown that there is no such thing, in terms of practical reality, as a case that is so open and shut that no defence could ever be advanced. The obvious example often given is that of the drug trafficker caught holding a bag of drugs who can always allege a fabricated account has been given against him. But there are countless other examples where concocted defences can be raised in the face of overwhelming evidence of guilt. In the present case, it does not take much imagination to think of defences that D1 could, had he been so minded, have concocted in an attempt to avoid justice. D1 did not take this course. He pleaded guilty and, in the particular circumstances, he should have received the full discount for his plea.

30. The recent authorities on this aspect of sentencing are copious and the sentencing practice which used to allow for reduced discounts in cases where the offender was caught red-handed have long since been disapproved. It suffices to make reference to the case of HKSAR v Wong Ka-kuen & Another CACC 35/1998. Even if a copy of the judgment in that case had not been provided to the sentencing judge, the topic is covered in Messrs Cross and Cheung's most excellent book of reference: "Sentencing in Hong Kong". The relevant passage for present purposes is concisely set out by the learned authors at p. 253 which reads:

"Yet in HKSAR v Wong Ka-keung (sic) & Another CACC 35/98, it was said that 'being caught "red-handed" is not, in the view of this court, a sufficient reason to disallow the full discount.' There the matter currently rests."

31. Nothing could have been clearer. If we appear to have laboured the point, it is because we can see no reason why this recurring error in the approach to discount should arise again in cases where offenders have entered pleas of guilty and are said to have been caught in the act of committing the offence in question.

32. I agree that leave must be granted and that the appeal should be allowed to the extent that has been already set out in the judgment of Leong JA.

Hon Wong JA:

33. Agree.

Representation:

Mr G D Fazio, SGC of the Department of Justice, for the respondent

Mr David Tolliday-Wright, instructed by the Legal Aid Department, for the 1st applicant (re: sentence)

Lo Chi-yip, 1st applicant in person (re: conviction)

Mr Lau Yiu-nam, Eric, instructed by M/S Kenneth C C Man & Co. for the 2nd applicant