HKSAR v. Tse Yiu Ming

CACC 75/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 75 OF 2007

(ON APPEAL FROM DCCC No. 74 of 2007)

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BETWEEN

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Before: Hon Yeung JA and McMahon J in Court

Date of Hearing:   20 February 2008

Date of Judgment:  5 March 2008

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.This is a typical case of triad members bullying law-abiding citizens in Hong Kong.

2.The appellant - Tse Yiu Ming, alone or together with others used different pretexts to assault and threaten 4 victims on three different occasions:

1. On 29 August 2005, the two victims and their 2 friends had a minor dispute with three persons at a park. The appellant, together with 2 others joined the three persons (a total of 6) to assault the victims in the presence of their friends, causing them tenderness, bruises and swelling on their bodies. The appellant appeared to be the leader of the group and he also claimed, in the course of the attack, to be the “Tor Tei” of Wo Shing Wo triad society (“the first incident”);

2. On 24 September 2005, another victim and a friend had a dispute with a group of youngsters in a public garden, leading to the intervention by the police. After the police left, the appellant approached the victim and blamed him for a making a report to the police. The appellant claimed to be a member of the Wo Shing Wo triad society and that the youngsters were his followers. He then punched the victim four to five times on his head, causing injuries to his lower lip, nasal bridge and nasal bone (the second incident”);

3. On 2 December 2005, the appellant approached a newspaper stall owner saying that he was a “Tor Tei” of Wo Shing Wo triad society, and demanded a monthly protection fee of $2,000, otherwise his newspaper stall would be messed up. The appellant was arrested after the victim made a report to the police (“the third incident”).

3.The aforesaid three incidences led to an indictment consisting of 7 charges against the appellant, including three charges of claiming to be a member of a triad society (the 1^st, 4^th and 6^th charges), two charges of common assault (the 2^nd and 3^rd charges), one charge of assault occasioning actual bodily harm (the 5^th charge), and one charge of blackmail (the 7^th charge).

4.The appellant pleaded guilty to all 7 charges before Deputy Judge Woodcock (“the judge”) and was sentenced to a total term of 32 months’ imprisonment.

5.On each of the 1^st, 4^th and 6^th charges of claiming to be a member of a triad society, the judge adopted a starting point of 2 years and reduced it to 16 months. On each of the 2^nd and 3^rd charges of common assault, the judge adopted a starting point of 9 months and reduced it to 6 months. On the 5^th charge of assault occasioning actual bodily harm, the judge adopted a starting point of 18 months and reduced it to 12 months and on the 7^th charges of blackmail, which the judge considered to be most serious, a starting point of 3 years was adopted which was again reduced to 24 months to reflect the appellant’s guilty plea.

6.The judge ordered the sentences in respect of each of the three incidents, namely on the 1^st, 2nd and 3^rd charges (“the first incident”), and on the 4^th and 5^th charges (“the second incident”), and on the 6^th and 7^th charges (“the third incident”) to run concurrently. The total sentences for the three incidents were therefore 16 months, 16 months and 24 months’ imprisonment respectively.

7.The judge further ordered 4 months of the 16-month sentence on each of the 1^st and 2^nd incidents to run consecutively to the 24-month sentence on the 3^rd incident, making a total sentence of 32 months’ imprisonment.

8.At the time of sentence, the appellant was serving, in DCCC 114/2006, another term of 30 months’ imprisonment in respect of offences of false imprisonment, theft and wounding.

9.The judge ordered the 32 months’ imprisonment to run consecutively to the 30 months’ imprisonment imposed in DCCC 114/2006. The total sentence on the appellant in respect of both cases is therefore 62 months’ imprisonment.

10.Having obtained leave from Tang VP on 15 August 2007, the appellant appealed against sentence on the basis that if there had not been delay in the prosecution, the present case would have been dealt with together with DCCC 114/2006, and the total sentence on him would have been reduced. The appellant further suggested that the starting points adopted by the judge, particularly for the offences of claiming to be a member of a triad society, were manifestly excessive.

DCCC 114/2006

11.The victim in DCCC 114/2006 assisted a person by the name of “Fei Kau” to traffick in a dangerous drug. In March 2005, “Fei Kau” gave the victim $5,000 and instructed him to buy half an ounce of cocaine. Having bought the cocaine, the victim did not give it to “Fei Kau”, but instead resold it and pocketed the proceeds of $7,000, saying that “Fei Kau” had owed him wages.

12.On 21 April 2005, the victim, having met “Fei Kau” and the appellant, was firstly taken to and then kept in a flat in Tong Mei Road before he was taken to various other places. In the course of such unlawful detention, the victim was seriously assaulted, not just with fists and leg, but also a hammer, leading to serious injuries to his head and other parts of his body.

13.The victim was threatened to ask a friend to deposit $500 into his bank account. The $500 was subsequently withdrawn after the victim revealed the PIN of his account to “Fei Kau”. The appellant and “Fei Kau’ continued to detain the victim until 23 April 2005 when the victim managed to escape and make a report to the police whilst his captors were sleeping.

14.The appellant was arrested in December 2005 and was charged with the offences in DCCC 114/2006. Having been sentenced to 30 months’ imprisonment in June 2006, the appellant applied for leave to appeal against sentence. The Court of Appeal dismissed his application on 8 May 2007.

The Present Case

15.The appellant was charged with the present 7 charges in January 2007.

16.The facts of the cases indicate that the appellant repeatedly committed very serious offences involving triad elements. The offences were committed with others and certainly not on the spur of the moment as initially suggested by Mr Cahill, counsel for the appellant, in his written submissions.

17.The 7 charges related to incidences occurring at different times and involving three different victims. It is perfectly reasonable and understandable that the police required a longer period of time to investigate the cases and therefore unable to deal with the present case together with DCCC 114/2006.

18.The judge, having considered the appellant’s complaints, accepted the prosecution’s explanation for the delay and concluded that the delay was not excessive.

Grounds of Appeal

19.The appellant made no complaint that the alleged delay had caused him any psychological or psychiatric suffering.

20.Mr Cahill argued that the starting point of 2 years adopted by the judge for the 1^st, 4^th and 6^th charges of claiming to be a triad member was manifestly excessive.

21.Mr Cahill suggested that those offences were committed in the heat of the moment and did not therefore justify a high starting point of two years’ imprisonment.

22.Mr Cahill recognized that the appellant had a previous similar conviction, albeit committed eight years ago, and that s 20(2) of the Societies Ordinance provides for a fine of $250,000 and 7 years’ imprisonment on a second or subsequent conviction, but nevertheless sought to persuade us that the 2 years’ starting point adopted by the judge was manifestly excessive.

Discussion

23.The facts of the case do not support the suggestion that the offences of claiming to be a member of a triad society were committed in the heat of the moment at all. The appellant was not initially present when his “followers” had disputes with the victims on 29^th August 2005 and 24 September 2005.

24.Clearly the appellant only appeared in these “revenge” attacks in order to threaten the victims by claiming to be a triad member after his followers summoned him. It was a classic case of triad bullying.

25.On 2 December 2005, the appellant of course claimed to be a triad member to instil fear on the victim in order to gain protection money from him. Whilst the appellant did not in fact obtain any money, due to the victim’s bravery in making an immediate report to the police, the offence was not made less serious by that fact.

26.The appellant had over 10 previous convictions, including not just claiming to be a member of a triad society, but many other serious offences of blackmail, assault, wounding, theft, indecent assault and false imprisonment. The appellant, a hard-core triad member, is a menace to society.

27.It was clear that the appellant was prompt in resorting to his triad status to achieve whatever purpose he had in mind, and it must not be ignored that he did it on three separate occasions within three months.

28.The starting point of two years for the offences of claiming to be a member of a triad society is, perhaps, a severe sentence when the usual sentence in the circumstances of the present offences ranges from 12 to 18 months. However, the judge ordered the sentences in respect of the charges of common assault, assault occasioning bodily harm and blackmail to run concurrently to the charges of claiming to be a triad member.

29.With respect, the judge should have ordered at least parts of the sentences on the charges of common assault, assault occasioning bodily harm and blackmail to run consecutively to the sentences on the charges of claiming to be a triad member.

30.As the judge ordered the sentences on the 1^st, 2^nd and 3^rd charges, and on the 4^th and 5^th charges, and on the 6^th and 7^th charges to run concurrently, the total sentences in respect of the three incidents were only 16 months, 16 months and 24 months respectively.

31.In the light of the background of the case and that of the appellant, we are not persuaded that those sentences were manifestly excessive.

32.In any event, we are only concerned with whether the total sentence of 32 months’ imprisonment in respect of all 7 charges is manifestly excessive.

33.The 7 charges arose out of three incidents over a period of about three months. On two occasions, the appellant, with others, assaulted and threatened innocent members of society after claiming to be a triad member. The appellant appeared to be the leader of the group.

34.The appellant, separately and on his own, blackmailed a newspaper vendor, seeking a monthly “Tor Tei” payment of $2,000 by claiming to be a member of the Wo Shing Wo triad society.

35.The offences committed by the appellant are very serious indeed and must be deterred.

36.We are not persuaded that the total sentence of 32 months’ imprisonment is manifestly excessive.

37.The 7 charges were different in nature from the offences in DCCC 114/2006 and were committed at different times. The judge was entitled to order the sentences in respect of the two cases to be served consecutively although she should have regard to the totality principle, as Barnett J observed in R v Ng Chun Keung [1993] 2 HKC 171 at p 173B:

“It is a well-known sentencing requirement that a sentencer dealing with an offender who has recently been sentenced to imprisonment by another court for other offences must have regard to the totality of all the terms of imprisonment to which the offender will become subject. The sentencer must adjust the aggregate accordingly. Authority for that proposition, if it be required, is R v Millent (1980) 2 Cr App R (S) 357.”

38.In R v Tong Hoi-fung [1988] 1 HKLR 610, the Court of Appeal accepted the submission that the matter should be approached as if the two cases had been heard together and the totality of the sentence should be examined on that basis.

39.We are of the view that if the present case had been dealt with together with DCCC 114/2006, the appellant would not have been subjected to a starting point exceeding the jurisdiction of the District Court and that the total sentence would not be as much as 62 months on a guilty plea, and to that extent, it can be said that the appellant does have a justifiable sense of grievance.

40.The judge, in her reasons for sentence, did not appear to have regard to the totality principle as laid down in Tong Hoi-fung (supra).

41.We have considered carefully the backgrounds of both cases and that of the applicant, we are of the view that, whilst the sentences imposed by the judge in the present case were fair and proper, 8 months of the total sentence of 32 months should be served concurrently to the sentence imposed in DCCC 114/2006. The total sentence for the two cases should be 54 months’ imprisonment.

42.The appellant’s total sentence for the two cases should be reduced from 62 months to 54 months’ imprisonment. The appeal against sentence is allowed to the extent indicated.

Mr David Leung, SGC of the Department of Justice for the Respondent.

Mr Peter Cahill instructed by Messrs Henry H C Wong & Co for the Appellant.