R. v. MA YUAN

IN THE COURT OF APPEAL

1995, No.791
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced four counts. The first was forcible taking away of a person with intent to procure a ransom. The other three were counts of blackmail. The particulars of the first were that he, on 18th April, together with Lai Yim-on and other persons unknown, by force took away Chen Xiao-chun against her will, with intent to procure a ransom for her liberation. The second particularized that on 19th April, with a view to gain for himself, he made an unwarranted demand of $300,000 with menaces from Ho Yeuk-leung. The third that on 1st May, he made a similar demand for $1.5 million from Chen Xiao-chun. The fourth that on 2nd May 1995 he made a similar demand for $300,000 from Ho Yeuk-leung. He pleaded not guilty to all counts and was, after trial before Stuart-Moore J. and a jury, found not guilty on the first count but guilty on the other three counts. He was sentenced to seven years' imprisonment on the second count, to five years' imprisonment on the third count and five years on the fourth count, with the sentences on those two counts ordered to be concurrent but consecutive to the sentence on the second count, making a total period of imprisonment of 12 years. He now seeks leave to appeal against both conviction and sentence.

2. I take the facts from the summing up. It was the prosecution case that on 18th April 1994 Madam Chen Xiao-chun was subjected to the indignity of being made unconscious by the use of a cloth soaked in what was probably chloroform. It was her evidence that the applicant, with whom she had worked at sometime in the past, had tricked her into going down the street to meet him around the corner from her office whereupon he and others had seized her, placed her in a van, rendered her unconscious and then taken a number of photographs of a compromising and embarrassing kind showing her in various stages of undress. It was the prosecution case that the applicant had then blackmailed Madam Chen's husband by threatening to make the photographs public and that as a result he drew a total $0.5 million from his bank which was paid in two different instalments, $200,000 on the day of the kidnap and $300,000 the next day. The applicant, payment having made, was to hand over all of the photographs. The matter did not, however, end there as over a year later more demands were made by the telephone when the applicant sought what he characterized as the balance of the blackmail demand. The police, having located the phone being used by the applicant, were able to arrest him.

3. The jury did not convict on the first count but were satisfied that the applicant was guilty of the three blackmail counts. In his original self-drafted grounds of appeal he did no more than say that he felt aggrieved by the convictions. He has made further submissions before us today. There is no merit in those submissions. They concern matters of fact of no real significance which were before the jury and were for their decision. It was an impeccable summing-up at which no criticism can properly be levelled. The convictions on counts 2, 3 and 4 were both safe and satisfactory.

4. The applicant seeks leave to appeal against his sentences.

5. The facts have already been recited and I shall not canvass them again. The judge when sentencing said:

"You do not receive extra sentence for contesting the charges but equally, I cannot give you the substantial credit that I would have done had you shown any remorse. You have the mitigation that there are no previous convictions but beyond that, so far as I can see, there is almost nothing that can be said, and that which can be said has already, very ably been, expressed by Mr. Walters on your behalf.

This blackmail was a singularly bad one. You had no entitlement to the money whatsoever. Your greed netted you a huge financial gain. The victims had done you no harm whatsoever and the extortion in 1994 is very seriously aggravated by the repetition in 1995.

On count two of the indictment, the 1994 offence, the sentence is one of seven years' imprisonment.

Counts three and four fall very much together. The sentence on each of those counts, and having regard to the totality involved in this case, will be one of five years' imprisonment to run concurrently with each other but that sentence will be served consecutively to the seven years on count two."

6. Mr. Walters, who appears today for the applicant, has argued a number of grounds but the real thrust of his argument is that the totality was manifestly excessive and would have been justified only if he had been convicted of Count 1. The judge when sentencing seems to have been guided by the unreported case of Reg. v. Frederick Lloyd in which the Court of Appeal in England upheld a sentence of 7 years for one count of blackmail. Mr. Walters submits that seven years was too high a starting point and that sentences on the third and fourth counts should not have been made consecutive. We indicated in the course of argument that the sentences imposed in other cases were of limited assistance as the assessment of sentence in a blackmail depends very much upon the facts of each case. The criminality displayed by the individual offender must at the end of the day govern the sentence that is to be imposed.

7. We deal firstly with Count 2. The criminality of the offence can be assessed in the light of the answers to the following questions:

(iii) What was being demanded?

The offence was undertaken in a determined attempt to obtain very substantial amounts of money and in fact $0.5m was actually obtained.

(i) What was the nature of that threat?

This was a threat of a public exposure. It was a threat to bring a woman of good repute and her immediate family into public disrepute. The implication was the release of the photos would ruin her reputation and envelop her and her husband in an aroma of sexual misconduct.

(ii) Was there a real intention to carry it through?

We see no reason to think, in relation to the second count anyway, that those threats would not have been carried out if the money had not been paid. Indeed the victims were convinced that this would have occurred as they were prepared to hand over $0.5m in an attempt to stifle the threatened exposure.

8. To sum up, it was a seriously intended threat of public exposure made to obtain very substantial amounts of money.

9. Having considered the above matters, serious as they were, we are nonetheless satisfied that the sentence of 7 years was excessive. We consider that the proper sentence to have imposed on the second count was one of six years.

10. We turn to Counts 3 and 4. They also were serious offences. They exhibit one of the worst features of blackmail, i.e. a return by the blackmailer to repeat his demands placing the victim under frightening stress and putting him in fear that the demands will never end. On each of those counts we are satisfied, as was the judge, that the proper sentence would be one of five years.

11. We turn to totality. We are satisfied that the totality principle requires that we order that the sentences on the third and four counts be concurrent and that they commence to take effect after four years has been served of the sentence on the second count. That makes an overall sentence of nine years.

12. The hearing of the application will be treated as the hearing of the appeal. The application will be allowed and the sentences will be varied accordingly.