Chan Wing-hong v. The Queen
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CACC000059/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 59 OF 1975 -----------------
----------------- Coram: Morley-John, J. Date of Judgment: 6th February, 1975. ----------------- JUDGMENT ----------------- 1. The appellant was charged with the commission of two offences, namely, blackmail of a seventeen-year-old girl, and claiming to be a member of a triad society. The appellant who originally pleaded not guilty reversed his plea to one of guilty to both offences after the first witness for the Crown, the victim, had completed her evidence. 2. The learned magistrate sentenced the appellant to a term of eighteen months' imprisonment on the first charge of blackmail and on the second charge, he ordered that a term of two years' police supervision should be imposed to operate from the date of the appellant's release from prison. It is against this sentence and order that the appellant now appeals, and the grounds of his appeal are that the sentences were too severe. 3. Very briefly the facts of the case as found by the learned magistrate after he had heard the victim's evidence are that the appellant and the victim had known each other at school five years ago. They met again in May 1974 in Tsuen Wan and had a conversation and the next day the appellant telephoned her and they had tea together and went to his house. There he urged her to have intercourse with him, but she refused. Thereafter he rang her several times and apparently considered her as his girl-friend. That on about the 22nd November, 1974 he telephoned her again and asked her to meet him at a certain playground on the evening of the 23rd November, When she demurred the appellant claimed to be a member of a triad society and threatened to bring his brothers to her home. This frightened the viotim and she went to meet the appellant as arranged. That at that meeting the appellant asked the victim where they stood with regard to personal relations and she said that it was better that they separate. The appellant then asked for $1,080 as a severance fee. Several of his friends were in the vicinity at the time. The appellant then suggested that the victim should work in a dance hall as a call girl to enable her to pay the money. The victim refused and informed the police and the appellant was later arrested. 4. Counsel for the appellant contended that as the appellant was only sixteen years of age the learned magistrate should have considered the provisions of section 109A of the Criminal Procedure Ordinance, Cap. 221, which provides that with regard to offences other than excepted offences no court shall sentence a person of over sixteen and under twenty-one years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate. That although probation was not recommended the probation officer in his report stated that he thought that the appellant needed closed institutional training, and also that a report from the Commissioner of Prisons stated that the appellant was mentally and physically fit for detention in a detention centre or in a training centre. That under these circumstances the appellant as a first offender should undergo training either in a detention centre or in a training centre, but that because of his age and previous clear record he should not be sentenced to a term of imprisonment. 5. Secondly, counsel for the appellant contended that the two offences arose from one and the same act as the appellant had only claimed to be a member of a triad society in order to carry his blackmailing activities into effect, and, therefore, on the authority of Wong Ming-chau v. Reg. (1) the two sentences should not have been consecutive but concurrent. 6. As to counsel's first contention there is no indication in his statement of findings that the learned magistrate directed his mind to the provisions of section 109A of the Criminal Procedure Ordinance. After having received reports as to the appellant's suitability for detention either in a detention centre or a training centre the learned magistrate stated that in his view the offence was far too serious a matter for either a detention centre or a training centre, that such crimes are prevalent in Hong Kong, and from every point of view deserved exemplary punishment, but nowhere in his statement of facts did the learned magistrate state that he had directed his attention to the provisions of section 109A. Further the offence of blackmail is not considered by the Legislature to be serious enough to be declared an excepted offence. 7. As to counsel's second contention I agree that the result of the learned magistrate's sentence and order is in effect two consecutive punishments and I am also satisfied that the two offences arose out of the same act. In fact in his statement of findings the learned magistrate said:
However, I do not place any great weight on this contention as under the provisions of section 3(3) of the Police Supervision Ordinance, Cap. 224, the learned magistrate could have made such police supervision order in addition to the penalty he awarded with regard to the blackmail charge and then awarded a separate concurrent penalty with regard to the charge of claiming to be a member of a triad society. 8. Under all the circumstances of this case the appeal is allowed to the extent that in lieu of the sentence and order made by the learned magistrate the appellant shall be detained in a training centre in accordance with the provisions of section 4 of the Training Centre Ordinance, Cap. 280. This, of course, may mean that the appellant will be detained for more than eighteen months, but I am satisfied that detention in a training centre is a proper sentence in this case.
Date 6th February, 1975. Representation: Mr. D.G. Sparrow for the appellant. Mr. A.M. Niamatullah, Crown Counsel, for the respondent. (1) [1968] H.K.L.R. 583 |