R. v. CHO HON LUNG, BILLY

IN THE COURT OF APPEAL

1996, No. 329

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. This applicant faced one charge of blackmail which alleged that he with two others on 5th September 1995 at Lok Yee Company, 4th floor, No.2 Li Yuen Street East, together with other persons unknown, with a view to gain for themselves, made an unwarranted demand of $300,000 from Wong Sik-mui with menaces. The second charge, which he faced with one other, alleged that at the same time and place the two persons assaulted Wong Sik-mui, to whom I shall hereafter refer as "the victim", thereby occasioning her actual bodily harm. The third charge was one of claiming to be a member of the triad society at the same time and place as alleged in the other two charges. The fourth charge was one of theft alleging that he stole $3,100 cash, a gold necklace valued at $2,000, a 1947 Republic of China banknote with a face value of $5,000, all from the victim and all at the same time and place as formerly alleged. The applicant pleaded not guilty to all charges and was found guilty after trial.

2. The judge when sentencing set out, in brief, the facts which he had found at trial. The victim was employed by the 1st defendant at her massage parlour. The victim was invited to the parlour on 5th September 1995. When she arrived, she was assaulted by the applicant and the 3rd defendant who punched, slapped and kicked her. This resulted in bruising to her lips, forehead and chin and occasioned injury to her chest.

3. The judge found that the applicant and the 3rd defendant when assaulting the victim were acting upon the instructions of the 1st defendant. He was satisfied that she was present throughout. It appears that the attack occurred because it was suspected that the victim had passed personal details of the 1st defendant to loan sharks who were pursuing her because of debts owed to them. The victim was detained at the massage parlour after the initial assault and for a period of hours thereafter the applicant threatened her, claimed to be a member of the Wo Shing Wo Triad Society and attempted by blackmail to obtain $300,000 from her. She sought desperately to raise the money by telephoning relatives but in the event was unable to do so. It was during the course of this ordeal that the applicant stole the property of the victim as detailed in the 4th charge.

4. The judge stated that he regarded the defendant as standing in a substantially different position from his co-defendants. The judge assessed the penalty which was appropriate with regard to the defendant bearing in mind the role he had played, his age and his background.

5. Today Mr. Buchanan, who appears for the applicant, has not sought to pursue any disparity argument but argues that the judge was wrong to impose the sentence he did given the age and previous record of the applicant.

6. The judge said that "each of the offences of which he has been convicted was a serious one and that in the case of blackmail neither his relative youth nor even his previous good character counts for much by way of mitigation". He refused to send for a detention centre report. He went on to say the offences "are quite separate, albeit the claiming membership of a triad society is an aggravating feature of the blackmail offence". He said that he adopted a totality starting point of four years' imprisonment. He quite correctly, in our view, characterised the offence of blackmail as "one of the most ugly and vicious offences known to law". He said:

"In the present case the victim was assaulted and put in fear. She was then detained for hours during which she faced the agony of not knowing what her tormentor would do next.

The 2nd defendant's victim, and the public generally, has every right to expect that such offences will be met with severe punishment."

The judge then noted that the applicant could not claim any credit for a plea of guilty, that the offences were to an extent spontaneous and that he was prepared to accept that the applicant had not planned to commit them but had taken the opportunity to try and to enrich himself after he had initially assaulted the victim. The judge considered that two years' imprisonment was appropriate for the blackmail charge, 6 months for the assault, six months for the claiming to be a member of the triad society and nine months for the theft charge. He then said:

"Having regard to the totality of these sentences, I order that the sentences on charges 1, 2 and 3 be served consecutively to each other, while the sentence on charge number 4 is to be served concurrent to the sentences imposed on charges 1, 2 and 3."

The result of that was that there was an overall sentence of three years and it is against that sentence that the applicant now appeals.

7. Mr. Buchanan has urged us particularly to take into account the fact that the applicant was only 21 and that he had no previous record. He submits that youth together with a clear record are matters that must significantly weigh with a court when assessing sentence. While we appreciate the force of the authorities which he has cited we must also not lose sight of the seriousness of the offences. Members of the public are easily intimidated by threats cloaked with triad menace. Such threats can cow even strong minded members of the public. The judge was right in our view to give weight to the public interest which must be protected by the courts when sentencing for offences of this kind. When we look at the conduct of the applicant and the totality of three years, we are by no means satisfied that the overall sentence was either wrong in principle or manifestly excessive. The application must, therefore, be refused.