Read the full judgment text of CACV 432/2010 on BabelCite. This Court of Appeal judgment was delivered on 16 February 2012 before Stock VP, Line J, McWalters J.
Criminal law – sentencing – blackmail – money laundering – whether s.25 OSCO sentence should be consecutive to predicate offence sentence when it adds nothing to culpability – Threats against family members as aggravating feature – Total sentence – Whether manifestly excessive or manifestly too light – Organized and Serious Crimes Ordinance (Cap 455) s.25 – Theft Ordinance (Cap 210) s.23(1) and (3) – Criminal Procedure Ordinance (Cap 221) s.83I – Applicant pleaded guilty to two counts of blackmail and one count of dealing with property known or believed to represent proceeds of an indictable offence under s.25 OSCO – Victim was senior marketing director of investment bank approached for US$350,000 in connection with unpaid passport arrangements – First blackmail involved threats to cut off limbs, detain, and harm wife – Second blackmail involved threats against family members, hard object pressed against victim, and visit to residence – Victim paid total of HK$2,715,500 into applicant's bank account, of which HK$1.9 million went to Liu – Issue 1: Whether sentence for s.25 offence should run consecutively to sentence for predicate blackmail – Court held that s.25 OSCO is broadly drafted and capable of including a wide range of conduct beyond what most people think of as money laundering – Mens rea of s.25 is concerned only with state of mind as to source of money, not purpose in dealing with it – Where s.25 conduct adds nothing to culpability disclosed by predicate offence, no effective additional sentence should be imposed to avoid double punishment – Following HKSAR v Ngai Yiu Ching, R v Greaves, and R v Thorn – Issue 2: Whether sentence for third charge was manifestly excessive – Court found sentence manifestly too light – Threats involving family members must be met with strongly deterrent sentences – Second threat a month after first led victim to fear no end to blackmailing – Starting point of 5 years appropriate for Charge 3, and 6 years for Charge 1 – Result: Sentences for Charges 1 and 3 quashed and substituted with 4 years and 3 years 4 months respectively – 6 months of Charge 3 consecutive to Charge 1; remainder concurrent; Charge 2 concurrent to both – Total effective sentence of 4 years 6 months maintained as in court below – Powers under s.83I Criminal Procedure Ordinance exercised to substitute sentences.
Legal issues: Whether a s.25 OSCO sentence should run consecutively to the predicate offence sentence when it adds no additional culpability · Whether the sentence for the third charge (second blackmail) was manifestly excessive
Outcome: Leave to appeal granted in part; sentences for Charges 1 and 3 quashed and substituted with higher sentences reflecting the seriousness of the blackmail offences, but overall totality maintained at the same level as imposed in the court below; s.25 sentence ordered to run concurrently.
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