THE QUEEN v. LAU SIU MING

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J U D G M E N T

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Macdougall, J.A.:

1. The applicant, who was represented by counsel, pleaded guilty before Judge Leong in the District Court to one charge of blackmail and was sentenced to 18 months' imprisonment.

2. The facts were that the applicant, who was employed as a waiter in a restaurant, had been accused by the cashier of overcharging a customer. The applicant denied that he had done so, and there the matter seemed to rest. A half an hour later, however, the applicant accosted the cashier after he had left the restaurant and, with menaces, whose nature was not specified in the charge, demanded to be given a lucky money packet containing $210.00, $2,100.00, $21,000.00 or $21.00. The cashier offered an apology for having made the allegation but this was rejected. Eventually the cashier gave the applicant a lucky money packet containing $210.00.

3. In passing sentence the judge observed that the applicant had been convicted of robbery and assault occasioning actual bodily harm in 1980, and of two offences of managing an unlicensed massage establishment in 1986 and 1987. Moreover, at the date of sentencing, he was serving a total term of 9 months' imprisonment in respect of two charges of doing an act tending and intended to pervert the course of justice. These charges related to offences that were connected with the present case. However, in view of the fact that both of those offences were separate and distinct from that in the present case the judge ordered that the sentence of 18 months be served consecutively to the sentence the applicant was already serving.

4. In his grounds of appeal the applicant contended that the present sentence was manifestly excessive for the reasons that there had been only a slight degree of intimidation, that his parents are both 70 years of age and depend on him for their livelihood and that he acted on impulse in an attempt to save face.

5. Mr Hingorani, who appeared on behalf of the applicant at the hearing of this application but not in the court below, has urged us to take the view that the circumstances of the present offence were so closely connected with those of the other two offences that we should not only reduce the sentence imposed by the trial judge, but should order that it be served concurrently with the sentence of 9 months which the applicant is presently serving.

6. While we accept that blackmail is a serious offence, we think that there is considerable force in those matters raised in the grounds of appeal which relate to the circumstances of the commission of the offence. We find it most unsatisfactory that the trial judge did not inquire into the precise nature of the menaces the applicant had admitted to having made. In the circumstances therefore we consider that we must treat those menaces as amounting to nothing more than a threat of minimal violence. This special case whose circumstances are vastly different from those which so frequently accompany the offence of blackmail.

7. We therefore grant the application and treating it as the hearing of the appeal, allow the appeal, quash the sentence and substitute for it one of three months' imprisonment. We order that this sentence be served consecutively to the 9 months' sentence that the applicant is already serving.