Chan Ming and Others v. The Queen

CACC000845/1971

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 845 OF 1971

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Coram: McMullin J. in Court.

Date of Judgment: 10th December, 1971.

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JUDGMENT

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1. Notwithstanding the protestations of the 1st and 3rd appellants I am satisfied that they did each plead guilty to the charges which concern them in the full knowledge of what was implied by the charge in each case. (1st appellant: blackmail and professing to be a triad member and 3rd appellant: blackmail and theft). The 1st appellant in any event initially admitted to me that he had represented himself to be a member of a triad society to secure payment for his friend the 3rd appellant only thereafter seeking to attenuate this admission almost to vanishing point by adding that the complainant was willing to pay the $200 suggested. I cannot believe that either the 1st appellant or the 3rd appellant would ever have pleaded guilty to such serious offences through a mistaken belief that the law was so drastically frawned as to penalize persons seeking, with some show of warmth to exact a reasonable and lawful contribution by way of compensation. The 1st appellant's record (containing as it does 2 previous instances of demands with menaces) is in itself some guarantee against his being in doubt as to the true nature of such a demand.

2. I do not believe the 3rd appellant when he says that he was persuaded to plead guilty to blackmail and theft upon it being represented to him by Inspector Shek that what he had admitted (which was according to him nothing more than a legitimate demand for compensation) was, by virtue of the peculiarities of the English language, a plea of guilty to theft and blackmail.

3. I have no doubt that the facts as outlined to the magistrate were understood and agreed to by all defendants.

4. Upon review the magistrate reduced the sentence of 9 months imposed upon the 2nd accused to one of 6 on the basis that he had played a minor part.

5. I am satisfied however that the whole scale of sentences was, in view of the background to the offences, excessive. In saying that I must point out that matters were put before me by the defence and not dissented from by the Crown which were apparently not drawn to the attention of the magistrate either in the first instance or upon review. In particular it seems that the waiter who accompanied the complainant and the three appellants to the police station was a captain from the same restaurant and that he agreed with the 3rd appellant that he was the wronged party and further that it was he who suggested that the complainant should pay compensation for his assault upon the 3rd appellant. There is certainly nothing on the record of the proceedings to give the lie to this, indeed it is quite congruous with what was put before the court by the prosecutor and, as I have said, the Crown makes no demur in respect of it. To my mind small though this item is it has the effect of re-focussing the whole picture by reinforcing the element of rightful indignation on the part of the defence and going a considerable way to palliate the apparent compliance of the second and third appellants in the quite unlawful threat uttered by the 1st defendant. In this distinctly altered perspective the case then wears far more the appearance - so far at least as the 2nd and 3rd appellants are concerned - of an injudicious acceptance of and reliance upon their companion's illegal tactics to gain what all three evidently regarded as a just quittance of their grievance, rather than that of a gratuitous act of extortion for motives of revenge and cupidity. The real and substantial offender in this matter was the 1st appellant, as he himself frankly admitted when he came before the magistrate on review. The other two though undeniably his accomplices to some extent on the blackmail charge were such in a sense very much below him in culpability. Where a legitimate claim is being pressed with hot words one may be tempted to accept very dubious assistance, without too nice reflection upon the seriousness of its implications, which in other circumstances one might instantly repudiate. By this I do not mean that the 2nd and 3rd appellants should be absolved from guilt, but that I regard their guilt as being of a more technical nature than that of the 1st appellant. Notwithstanding what Mr. Jackson Lipkin has said on behalf of his client, and although I agree that his client took - as the magistrate said upon review - a more passive part in the affair, I cannot for the purpose of my order make any large distinction between the case of the 3rd and that of the 2nd appellant. Although the 3rd appellant appears to have himself uttered a threat whereas the 2nd appellant did not, the threat was of a vague and unspecific sort such as an angry man might utter without thought and in this it differed totally from the 1st appellant's deliberate injection of a quite specific element of terrorism into the debate by his invocation of the triad society. The 2nd appellant, although he appears only to have suggested a figure of compensation did so gratuitously in answer to a question not even directed to him thus showing his eagerness to be a party to what, on the most lenient revaluation of it, was nevertheless a forceful settlement.

6. As regards the 1st appellant while it is true that he has had two previous sentences of 6 months for similar offences, he has not been in trouble with the police since 1967. I think therefore that the present offence - in view of that fact and in view of the special circumstances of its commission - should not be regarded as requiring the heavier punishment which would normally be called for by the apparent impenitence of a further repetition. I feel that if the facts had been as fully exposed before the learned Magistrate as they ought to have been he might well have taken the view that a lighter sentence than that imposed on all three defendants would have been appropriate.

7. The appeals are allowed and for the sentence imposed there will be substituted the following:-

10th December, 1971.

Representation:

Jackson-Lipkin (Samuel Soo & Co.) for 2nd appellant.

Mrs. Jackson-Lipkin, C.C., for the respondent.