HKSAR v. Cheng Pui Man, Dicky

HCMA 765/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 765 OF 2009

(ON APPEAL FROM TMCC 2600/2009)

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BETWEEN

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Before: Hon Wright J

Date of Hearing and Judgment: 19 February 2010

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J U D G M E N T

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1.The appellant was convicted by S Smout, Esquire, after trial, of a single charge of criminal intimidation contrary to s. 24(c)(i) of the Crimes Ordinance, Cap. 200: the charge was amended to reflect that section by the magistrate, it originally having referred to s. 24(a)(i). The appellant was sentenced to undergo imprisonment for 18 months. He appeals both conviction and sentence.

2.The prosecution allegation was straightforward: that on a day in 2008 the appellant had taken two photographs of the complainant in the nude and had threatened her with an illegal act, publishing those photographs, with intent to alarm her.

3.The complainant was the only witness to testify. Her evidence was unchallenged: cross-examination was directed only towards her criminal record, which she had admitted. The magistrate accepted her evidence, as do I.

4.She was, at that time, a prostitute. She had gone to Macau in November 2007 to borrow $10,000.00. There she had been told that in order to borrow money she was required to gamble in a casino. She did so. She then returned to Hong Kong, accompanied by two unknown males, being promised the loan which had to be arranged through the ‘head office’ in Hong Kong. On her arrival she was handed over to two different men. They took her to her residence and promised to lend her the money if she proved she lived there. On arrival there she was told she owed $110,000.00 despite not having received any money at that time. She was asked to call her relatives to raise that sum: she tried but was unable to find the money. She was told to write an IOU – she signed one because she was “forced… to repay”.

5.She was told, she said, that if she refused she “…had to bear the consequence and something would be done to [her] family members and they said something like setting fire or pouring red paint.” She was to repay $5,000.00 a month. They gave her details of an account at Hang Seng Bank into which to pay the moneys. She deposited money into that account on 11 occasions. In addition on three or four occasions she had handed over the repayments, of between $1,000.00 and $3,000.00 each time, to the appellant personally.

6.On the day of the offence the appellant and two other males visited the premises where she operated. The appellant told her that ‘they’ were afraid that she had no money to repay: consequently, he requested her to strip. He then took two photographs of her unclothed using his mobile telephone. She had complied with this demand because, she said “…[she] did not want things to be done to my family, my company and did not want [her] boss to know”. After taking the photographs, the appellant left.

7.She was unable to recall exactly what it was the appellant had further said about the photographs. She did recall him saying that if she could not make payment, he would go to her home to ‘find’ her but he had not said anything specifically about the photographs.

8.There was a set of agreed facts in addition to the complainant’s oral evidence: apart from recording the circumstances in which the appellant was arrested – whilst handing over a repayment instalment, using banknotes of which the police had recorded the numbers – they also recorded the fact that two photographs, which had been deleted, of the naked complainant had been recovered from a mobile telephone seized from his person.

9.There are two grounds of appeal against conviction: that the magistrate erred in finding that, first, the taking of the photographs constituted an “implied threat” against her and, second, the prosecution had proved the essential elements of the offence.

10.I have a difficulty with the submission that was made before the magistrate that there was no evidence to show that the appellant was connected with the events surrounding the complainant’s trip to Macau. It is starkly obvious that he was fully involved. The money which she paid to him was in repayment of the IOU she had been forced to sign which was directly linked to the Macau visit.  The reason the appellant gave her for taking the photographs of her was doubt over her ability to repay those same moneys.

11.The magistrate was fully aware that there was no direct threat made to her concerning the use of the photographs. He found that the threat was implicit in the very taking of those photographs. He was right to do so.

12.On her evidence, which went entirely unchallenged, this was a clear case of extortion: making her telephone relatives to raise funds, the signing of the IOU, the threats of fire to her premises or the splashing of red paint on them, the threat to come to ‘find’ her and the taking of the photographs are all part and parcel of putting pressure on her to pay the moneys. To suggest to the contrary is to forsake reality. The magistrate was satisfied, as am I, that those photographs were taken with the intent of leading her to believe that they would be used against her if she failed to meet the financial demands being made.

13.That debt, on her evidence, was one which entirely spurious. Yet the appellant, and those with whom he was involved, intended to ensure she made payment of an unwarranted demand, enforced by menaces: that constitutes the illegal act resulting from the implicitly threatened publication of the photographs.  It is self-evident that the reason the appellant took the photographs was to achieve that object. There simply was no other inference to be drawn from the evidence when looked at in its entirety.

14.It was unnecessary for the prosecution to lead evidence that the complainant had been “scared, threatened or words to that effect” as suggested by counsel: it is the appellant’s intent at the time of the offence which need be, and was, proved. The magistrate was correct when he said that the prosecution had proved the essential elements of the offence.

15.As to the appeal against sentence: it has been said any number of times that it is unhelpful to cite sentences imposed in other matters in circumstances where, such as these, the sentence to be imposed depends upon the facts and circumstances of a particular matter. Of course there are no guidelines in matters of this nature – each case depends on its own facts and the variations are endless.

16.The submission that the magistrate erred in finding that the appellant was a ‘cog’ in the Macau machine lacks any realistic basis for the reasons already expressed. In any event, this being an appeal from a whether he erred or not or whether I agree or disagree with the view he has taken is not the issue, although, obviously, full regard should be had to his decision as he has the full flavour of the case having heard the evidence:  the decision as to the appropriate sentence is now mine. Nor is it necessary, as the prosecutor suggests, for the appellant to establish that the sentence is manifestly excessive or wrong in principle, this being a magistracy appeal, before the appeal against sentence can succeed.

17.The appellant appears to have been little more than a messenger boy but, even so, played an important and active role in the intimidation process. He has a fairly long record of previous convictions, one of which, in 2007, was for the identical offence. Probation, a fine, a spell in Training Centre and a period of imprisonment all appear to have had no effect on him.

18.This was a particularly mean and cynical offence. That the complainant was a prostitute meant, in some senses, that she was especially vulnerable. The appellant had no hesitation in taking the photographs of her and intended that they would be used to intimidate her. It is correct that no physical violence was threatened, but there was most certainly psychological violence and violence to her privacy.

19.This offence and the circumstances of the offender clearly call for a period of imprisonment. In my view the appropriate period is one of 12 months.

20.The appeal against conviction is dismissed and the conviction confirmed. The appeal against sentence is allowed: the sentence imposed by the magistrate is set aside and, in its stead, the appellant is to serve a period of 12 months imprisonment.

Mr. Victor HO instructed by Messrs Tang, Wong & Cheung for the Appellant

Mr Frederick CHUNG, Senior Public Prosecutor of the Department of Justice, for the HKSAR