THE QUEEN v. CHAN PING LEUNG AND ANOTHER

IN THE COURT OF APPEAL

1987, No.336
(Criminal)

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JUDGMENT

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Power, J. A.:

1. The two applicants were charged with offences of blackmail and theft. Each having pleaded not guilty, was found guilty after trial and sentenced to 2½ years' imprisonment on the blackmail charge and 12 months' imprisonment on the theft charge, the sentences to be concurrent.

2. The facts of the matter, which I briefly recite, were that the 1st applicant was owed some wages by the victim and enlisted the support of the 2nd applicant and two other men, who have not been detained, to assist him in an endeavour to obtain what he says was his due from the victim. They all went to the victim's factory and after threats and assaults the victim paid over $2,100 as wages and $1,600, that latter sum being extorted from him by threats and violence which emanated from the two other menu said by them to be a payment of "transportation money". This was a clear case of threats and force being used to resolve a wages dispute which should have been resolved by negotiation org as a last resort, by application to the Labour Tribunal.

3. The applicants now appeal against their sentences on the ground that, given their clear records and family backgrounds, they were too severe.

4. Mr. Wong who appears for them, pointed out initially that the courts are, in normal cases, reluctant to impose deterrent sentences on first offenders. He refers, in this regard, to R. v. Ho Tam[1]. It does not seem to us that there is any real force in this submission. It rests upon the words of the trial judge who said, when sentencing, that conduct of such nature must be "deterred". This observation was a perfectly valid and commonsense one and it is, we are satisfied, to give it a meaning beyond what was intended to suggest that the judge was indicating that he was imposing deterrent sentences.

5. Mr. Wong also urges that the findings of the trial judge that this was a premeditated joint venture are not justified by the evidence. He submits that this was an incident which gathered a momentum of its own and eventually got out of hand. That may, to an extent, be so but we are satisfied that the trial judge was correct both in saying that it was a joint venture and in saying that it was premeditated. While the exact form the demands and threats would take might well not have been discussed between the parties before they went to threaten the victim the judge was, rightly in our view, satisfied that it was a joint venture in which there was an intention to recover the wages by the making of demands and threats.

6. The next ground argued by Mr. Wong is that each of the applicants played subsidiary roles when it came to the demands, the threats of violence and the assault. This is true. The applicants were in the background in that regard but the judge was, nonetheless, satisfied that each participated in what occurred.

7. The final, and perhaps strongest ground; is that sufficient weight was not given to the good character of the applicants. Each had what must be described as good reports from the Probation Officer. Each has a clear record and each appears to have a good family background. Mr. Wong points out that the 1st applicant was entitled to make a demand as some wages were due to him.

8. Taking into account that a real dispute as to wages was at the root of this matter, that the attempt to resolve the dispute may well have become more heated than the applicants anticipated it would, that the real violence and threats came from the other two persons and, in particular, that the applicants are first offenders of good character we are satisfied that the sentences were too severe.

9. While we are satisfied that this type of offence calls for an immediate custodial sentence we bear in mind that the applicants have already been in prison for 5 months. We consider that it would be appropriate in the circumstances of this case to vary the sentence of of 2½ years on the Blackmail charge to one of two years and to order that the sentence be suspended.

10. We treat the hearing of the applications as the hearing of the appeal, allow the appeal and order that the sentence on the first charge be reduced to one of two years and that the balance of that sentence and the sentence of one year on the second charge be suspended for a period of 18 months.

Mr. Harris (Crown Prosecutor) for the Respondent

Mr. Frank Wong (D.L.A.) for both Applicants (on sentence)

[1]  (1978) H.K.L.R. 197