HKSAR v. CHEUNG WAI KONG

CACC 142/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 142 OF 2001

(ON APPEAL FROM DCCC 2 OF 2001)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of blackmail after a trial in the District Court before H.H. Judge Chua.

2. Particulars of the offence were that the applicant, between 29 and 30 June 2000 in Hong Kong with a view to gain for himself or another, made an unwarranted demand of $130,000.00 from the victim with menaces.

3. A sentence of four years' imprisonment was imposed upon him. He now seeks leave to appeal against this sentence.

4. The victim was a 40-year-old steel binder who worked on different construction sites.

5. On 27 June 2000 he received a telephone call from a man who said his name was Tse offering him employment in Wong Kong which is over the border in the Mainland. Arrangements were made for him to proceed to Shenzhen where he would be met. The victim went to Shenzhen. Mr Tse was not at the station to meet him.

6. He telephoned the number he had been given and was advised by a man who identified himself as Mr Tse's younger brother that Mr Tse had been held up and that he should go to the Wushan Hotel where they could meet up.

7. He went there and this Mr Tse suggested that they should go to a restaurant to wait. Two other men were there - Mr Wong and Mr Yeung.

8. After a very long wait Mr Wong asked the victim for $2,000.00 so that he could arrange for a "temporary pass". He also took his re-entry permit for this purpose.

9. After this it was proposed that they should play Russian poker.

10. The victim was most reluctant to do so as he said that he was not a gambler.

11. Eventually he was prevailed upon to play for very small stakes.

12. After nine rounds Mr Yeung announced that the victim had lost $400,000.00.

13. The victim was not allowed to leave and was required to hand over his credit cards and give particulars of his personal identification number. Also $4,000.00 in cash was taken from his wallet.

14. $47,000.00 was extracted from one of his accounts. Mr Yeung continued to demand the balance of what was due to him and insisted that the victim communicate with his family and friends in Hong Kong to raise the necessary funds. This was accompanied by threats of physical violence.

15. It was at this juncture that the applicant entered the scene. He took over making demands on the victim to pay the balance. He forced the victim to sign an IOU for $300,000.00 whereupon he was allowed to return to Hong Kong where he made a report to the police.

16. The next day the applicant telephoned the victim demanding the $300,000.00.

17. The victim, with the assistance of a police officer, managed to negotiate the figure down to $130,000.00 and arrangements were made to meet at Shatin where payment would be effected.

18. The applicant attended at the arranged venue and was arrested. At the time of his arrest he had the victim's IOU in his pocket.

19. As can be seen from this short summary of facts which were found by the Judge, this was a serious case of blackmail. It was well organised and a large amount of money was both taken from the victim and attempted to have been obtained.

20. In the first ground of appeal complaint is made that the starting point adopted by the Judge of four years was too high.

21. Mr McGowan for the applicant referred to a number of cases where lower starting points had been adopted. He accepted however that each case depended to a large extent upon its individual circumstances.

22. Having regard to the aggravating factors already referred to it cannot be said that the starting point was too high.

23. In the second ground complaint is made that the Judge "bargained" with the applicant over restitution.

24. It may be helpful to consider the transcript of the passage when the Judge was sentencing the applicant.

"Court: Now, Mr Mackenzie-Ross, I can either sentence him today but any part of ($)100,000 that was taken from PW1, should it be handed in, would count favourably in mitigating sentence.

Mr Mackenzie-Ross: Well, your Honour, I'm delighted with that indication. If your Honour could give me a few moments to take instructions, I'd be grateful.

Court: And I'm happy to adjourn the case for a cashier's order.

Mr Mackenzie-Ross: For what?

Court: A cashier's order. Nothing else will suffice."

25. It is not strictly accurate to state that the Judge "bargained" over restitution. What she did was to adjourn the proceedings so as to enable the applicant if minded to do so to make restitution. It would undoubtedly give the applicant the impression that if he did make a substantial payment it could have the effect of reducing the term of imprisonment he would be required to serve.

26. This is altogether too close to encouraging a defendant to believe that he can buy his way out of prison. This is quite wrong and contrary to public policy.

27. Where restitution has been made in whole or in part it is indicative of the defendant's remorse and can be a powerful mitigating factor. It is however the case that it should move from the defendant and not the judge. Otherwise a wholly wrong impression is obtained.

28. However in the present case the fact that the Judge adjourned the proceedings in the way she did should not have a direct bearing upon the sentence which was imposed. It does not provide a valid reason to reduce the sentence which was properly imposed.

29. In the third ground complaint is made that the Judge declined to accept the applicant's statement that he had received no financial recompense or benefit himself from the offence.

30. It is always open to a judge to accept or reject an assertion made by a defendant. Having regard to the circumstances of this case, it is not surprising that the Judge disbelieved the applicant.

31. In the fourth ground the Judge is criticised for not giving the applicant credit for the fact that a period of twelve years had elapsed since the applicant last offended against the law.

32. There is no merit in this ground.

33. The sentence imposed was in no way manifestly excessive or wrong in principle. The application is accordingly dismissed.