HKSAR v. Lee Sing Ho

CACC000606/1999

CACC 606/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 606 OF 1999

(ON APPEAL FROM DCCC 717/1999)

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Coram: Hon Mayo VP, Leong JA and Keith JA in Court

Date of Hearing: 19 May 2000

Date of Judgment: 19 May 2000

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. On 26 October 1999, the applicant pleaded guilty in the District Court before H. H. Judge Wright to one charge of theft, two charges of common assault, one charge of blackmail and one charge of claiming to be a member of a triad society. Sentence was adjourned for a DATC report and a Probation Report. On 16 November 1999, the Judge after considering these reports and giving 1/3 discount for the pleas of the applicant, sentenced the applicant as follows:

On the charge of theft, 2 months imprisonment; on one of the two charges of common assault, 2 months imprisonment and on the blackmail charge, 16 months imprisonment, all consecutive making a total of 20 months imprisonment.

2. On the remaining charge of common assault, 4 months imprisonment and on the charge of claiming to be a member of a triad society, 16 months imprisonment, concurrent with the sentence of 4 months but consecutive to the sentence of 20 months for the theft, assault and blackmail charges.

3. The total sentence was thus 36 months imprisonment.

4. The applicant now seeks leave to appeal against sentence on these grounds:

1. the Judge attached undue weight to the applicant's past criminal records;

2. the sentence on the blackmail charge was manifestly excessive; the Judge had failed to consider that the offence was of minor nature of its kind;

3. the Judge failed to sufficiently consider the principle of totality; and

4. alternatively, the Judge's adoption of 41/2 years in total as the starting point was too high for these relatively minor offences.

5. The following facts were admitted by the applicant when he pleaded guilty to the charges:

6. There were two victims (PW1 and PW2) in these charges. Both of them were elderly retired people. They frequently spent their time in the Shing Mun Garden, sometimes playing chess and sometimes indulging in gambling.

7. On or about 10 May 1999, PW1 was in the garden gambling and was holding some $200 worth of banknotes in his hand when the applicant approached him and snatched the money from him. The applicant told PW1 he was somebody in a triad society and had many brothers. He warned PW1 to be beware of the lives of his family members and not to report the matter to the police at the risk of the lives of his family members. PW1 did not report the matter to the police.

8. On 13 July 1999, the applicant approached PW1 when PW1 was gambling in the garden and asked PW1 if he had money. When PW1 said he had none, the applicant swore at the applicant and punched the applicant in the abdomen with his right fist.

9. Sometime earlier, in October 1998, when PW2 was gambling in the garden, the applicant approached PW2 for money. When PW2 said he had none, the applicant told PW2 if he did not hand over some money, PW2 would be beaten up whenever the applicant saw him in the garden. PW2 as a result of the threat, gave the applicant $200.

10. On 23 June 1999, when PW2 was in the garden the applicant approached him and demanded money. PW2 told him he had no money. Later that afternoon, when PW2 returned to the garden, the applicant together with three other male persons approached PW2 and kicked PW2's buttocks from behind. The applicant also told PW2 that he was 14K, meaning he was of the 14K triad society and he threatened to beat up PW2 if he reported the matter to the police.

11. At the time of sentence, the applicant was 23 years old. He had a number of previous convictions on charges of blackmail, assaults occasioning actual bodily harm, common assault and offences relating to triad membership and theft. His latest convictions were in June 1997 and these were the same as those in the present case for which he was sentenced to a total of 24 months imprisonment. In respect of the sentence of 24 months, the applicant was released in May 1999. This means that the applicant repeated his offences just 5 months after he was released from prison.

12. The Judge in considering what sentence to be imposed, was aware of the applicant's record which he described in his reasons for sentencing as startling. However, the Judge was also conscious of the principle that the applicant should only be sentenced for the offences he had been convicted and not for his previous records. Nevertheless, he reminded himself of the case of HKSAR v Chan Pui-chi [1999] 2 HKLRD 830 where the Court of Appeal said this in relation to sentencing a repeated drug trafficker: " ... the constant repetition of this applicant's trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest." The Judge considered that this principle was equally applicable in sentencing the applicant in the present case. He adopted as starting points 3 months and 6 months for the two assault charges, 2 years for the blackmail and for the claiming to be membership of a triad society offence. Bearing in mind the principle of totality and giving credit for the plea, the Judge arrived at the sentences he imposed.

13. In Chan Pui-chi, the Court of Appeal also said this "... the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court's duty to protect the public on the other. ..." (at p.834)

14. In our view, the applicant had engaged in a series of crimes of blackmail and assaults and claiming membership of a triad society to terrorize old people who frequented the garden. His criminal activities had deprived these old people of their leisure and past time in a tranquil environment. The activities of the applicant of such nature ought to be deterred. In the circumstances the adoption by the Judge of a starting point of 24 months for the blackmail offence and 24 months for the triad membership related offence is nowhere manifestly excessive. A total sentence of 36 months for all the 5 offences having regard to their nature and the circumstances they were committed and the fact that the applicant had pleaded guilty is neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence is accordingly dismissed.

Representation:

Mr M C McWalters, SADPP, of the Department of Justice, for the respondent

Mr David McKenzie Ross, of the Legal Aid Department, for the applicant