HKSAR v. Chu Sin Chung

CACC000111/1999

CACC 111/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 111 OF 1999

(ON APPEAL FROM DCCC NO. 1370 OF 1998)

Coram: Hon Stuart-Moore, V-P, Wong, JA & Woo, J in Court

Date of Hearing : 29.10.1999

Date of Judgment : 29.10.1999

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J U D G M E N T

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Wong, J.A. (giving the judgment of the Court) :

1. The applicant was convicted before His Honour Judge Line in the District Court of two charges of blackmail and one charge of claiming to be a member of a triad society. He was sentenced to imprisonment for two years each on the blackmail charges and 12 months' imprisonment on the charge of claiming to be a member of a triad society. The judge ordered that 6 months of the sentence on the second charge of blackmail was to run consecutively to the sentence of 2 years on the first charge of blackmail, and the sentence of 12 months' imprisonment imposed on the third charge of claiming to be a member of a triad society was ordered to run consecutively to the sentence on the first charge. The applicant applied for leave to appeal against his sentence and is represented by Mr McGowan. Originally he also applied for leave to appeal against his conviction. Before us he indicated that he was not pursuing that matter further and his application for leave to appeal against conviction is accordingly dismissed.

2. The prosecution case is this. PW1 was the proprietor of a small restaurant in Tsimshatsui. He had a business partner surnamed Chong. The restaurant was opened for business on 28 June 1995. On that day, Chong introduced the applicant to PW1 and told PW1 that the applicant was the 'Tor Tei' (local bully) and PW1 should pay the applicant $1,500 each month. From then onwards the applicant came to the restaurant every month and collected his $1,500. This went on until January 1996 when Chong withdrew from the partnership and emigrated to Canada.

3. On an occasion in February 1996, the applicant came to the restaurant and told PW1 that $1,500 a month was too little and he wanted at least $4,000. He also told PW1 that no one would dare to bother him if he paid the money because the applicant was a member of 'Sun Yee On' and was known as Danny. Out of fear, PW1 agreed to pay this amount every month to the applicant.

4. In the afternoon of 28.9.1998, the applicant came to the restaurant to collect $4,000 from PW1 who asked to pay a lesser sum because business was not good and he was in fact thinking of closing down the restaurant. PW1 gave the applicant $2,000 on this occasion. The applicant took the money and left but returned later. He asked PW1 for the business registration certificate and the floor plan of the restaurant because he wanted to show them to a potential buyer. This PW1 refused. Thereupon the applicant threatened PW1 that he could get people to make trouble in the restaurant and find some excuse to chop up PW1 into pieces after closing up the front iron grille of the restaurant. Before he left, he told PW1 to pay the outstanding balance of $2,000 for September and $4,000 for October immediately.

5. Fearing for his safety, PW1 reported to the police. The applicant went to the restaurant to collect the money in the morning of 5 October 1998. He was arrested by the police who had been waiting in ambush in the restaurant.

6. Two grounds of appeal against sentence are advanced and argued on behalf of the applicant by Mr McGowan. They are these:

"1. The Learned Judge erred in failing to give the applicant due credit from the 2 years "start point" for his previous record.

2. The Learned Judge erred in making the 12 months' imprisonment on the 3rd charge consecutive to the 2 years on the charge 1."

7. In the course of his submission, Mr McGowan drew our attention to a judgment of this court in the Queen v CHAN Ka-choi [1988] 1 HKLR 530. Counsel relies in particular on the passage of the judgment of Power JA (as he then was) at p534G. It reads :-

"Once the offender has been found guilty of the offence the court must, leaving aside personal circumstances and previous record, make an assessment as to the proper sentence to be imposed given the type of offence and the circumstances of its commission. When this has been done the Court must give credit for absence of previous convictions and for personal circumstances."

He went on at p535E&F and concluded : -

"We now turn our minds to the question of whether the sentence was a proper one. We give due weight to the fact that the applicant was caught while carrying the drugs. We are, further, satisfied, in accordance with the guideline in Chan Chi-ming that the applicant, even if he be treated as having no previous convictions, would not be entitled to any discount. Leaving the judge's approach aside, we are nonetheless satisfied as to the propriety of the sentence of 4 1/2 years and the application, must, therefore, be dismissed."

8. Reading the judgment as a whole, we do not think that the passage of the judgment of Power JA provides us with any practical assistance. Whether a discount is given or not for good character must depend on many factors, among which are the nature of the offence and the circumstances of the facts of a particular case.

9. In his reasons for sentence, the judge referred to blackmail as an offence that is not to be tolerated. At the beginning of his reasons, he said this :-

"The type of crime you have committed is mean, deliberate and calculated. Honestly earned money belongs in the pocket of the man who earned it yet you felt free to demand and take a share. Your claimed criminal status meant that honest man was not free to enjoy the fruit of his labour in full and this conduct the court will not tolerate.

You felt free to do this. The blackmail was openly carried out yet you felt safe in it. By the careful pitching of demand to the turnover of the business and by the ever-present menace of the harm you could do through your claimed triad connection, the victim was long deterred from seeking the help of the authorities."

10. Blackmail is a serious and unpleasant crime. It is also a prevalent crime that calls for a deterrent sentence. The judge in his reasons for sentence had also taken note of the character of the applicant. He said at p20N-Q :-

"I take into account that you have only been bound over once in the early 70's and that you have been fined a modest sum for making a false report of an offence. In effect, you have no real convictions for what one would call proper crime. I have taken that into account in settling on the length of these sentences. If you had had previous convictions for identical conduct in the recent past, the sentences would have been longer."

11. It is apparent from this passage, the judge had given credit to the applicant's character and for all intents and purposes he had ignored the applicant's minor offence committed some 30 years ago and treated him as a person with a clear record. In our view the starting point of 2 years is rather on the low side in the light of the circumstances of this case. It could have been higher. The applicant was convicted after trial and the judge was in these circumstances justified in not giving him any discount. We are not prepared to interfere with the sentence imposed on the blackmail charge. This ground has no substance and must fail. With regard to the 2nd ground, we only have to say this. Looking at the facts overall, we do not think that the sentence of 3 years is in anyway wrong or manifestly excessive. The practical effect of the judge's sentence on the third charge was to add another 6 months to the sentence of 2 1/2 years on charges 1 and 2. We are in no doubt that the offence of claiming to be a member of triad society was an aggravating factor and the additional sentence of 6 months is, in our view, entirely justified. There is no merit in both grounds of appeal and we refuse leave to appeal against sentence.

Representation:

Mr. P. K. Madigan, SADPP(Ag.) for DPP/Respondent

Applicant in person