HKSAR v. CHAN CHEUK HONG

CACC 5/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 5OF 2016

(ON APPEAL FROM DCCC NO. 396 OF 2014)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  With the leave of McWalters JA given on 22 July 2016, the appellant appeals against the total sentence of 54 months’ imprisonment imposed on him by District Judge A. Kwok on 28 December 2015 on his conviction, following his pleas of guilty, to the following seven charges:

(i) claiming to be a member of a Triad Society, on 4 August 2011, contrary to section 20(2) of the Societies Ordinance, Cap. 151 (Charge 1);

(ii) blackmail, on 4 August and 16 September 2011, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210 (Charges 2 & 4);

(iii) theft, on 4 August and 16 September 2011, contrary to section 9 of the Theft Ordinance, Cap. 210 (Charges 3 & 5);

(iv) unlawfullytraffickinginadangerousdrug,on13October 2011, namely 2.01 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Charge 6); and

(v) failing to surrender to custody, being a person admitted to bail, without reasonable cause, on 20 August 2014, contrary to section 9L (1) and (3) of the Criminal Procedure Ordinance, Cap. 221 (Charge 7).

The facts

2.  In June 2011, as part of a police undercover operation targeting the Wo Sing Wo Triad Society and the trafficking of dangerous drugs in the Sheung Shui area PC 4116 posed as a casual transportation worker and drug addict.

Charges 1 to 3

3.  In the early evening of 4 August 2011, PC 4116 went to the area outside Shek Wu Hui Jockey Club Clinic in Sheung Shui, where people were gambling at cards.  There, he was approached by the appellant and three other men.  The appellant said that he was called “Cheuk Si Hong” of the “Sheung Shui, Wo Shing Wo, line of “Big Nose” ” and told PC 4116 that the rules for playing cards in that area required that he pay money to his followers.  So, PC 4116 gave a $100 banknote to one of the other three men, after which the appellant and the other men left.

Charges 4 and 5

4.  In the early evening of 16 September 2011, PC 4116 returned to the same area outside Shek Wu Hui Jockey Club Clinic to gamble.  The appellant approached PC 4116 again and asked for payment of $100 from him, if he wished to play cards there.  In response, PC 4116 gave the appellant a $100 banknote, after which the appellant left.

Charge 6

5.  In the early afternoon of 13 October 2011, PC 4116 received a telephone call from a man who said that he was Ah Wai and that he was working for Ngau Chai.  He asked PC 4116 if he needed anything that day, saying that he had “Hei Shui”, a codename for cocaine, but not much “Chu Yuk”, a codename for Ice.  PW1 replied that he wanted 10 drops of “Hei Shui”, which he was told would cost $5,000.

6.  At about 9:30 p.m. that day, the appellant met PC 4116 outside the Fanling MTR station.  The appellant, who was driving a motor car, gestured to PC 4116 to join him in the motor car.  After PC 4116 had done so, the appellant gave him a packet of cigarettes inside which were 10 small plastic bags, which turned out to contain a total 2.01 grammes of cocaine.  In return, PC 4116 handed over $5,000 to the appellant, who then left.

7.  On 17 January 2014, police officers arrested the appellant at his home in Choi Yuen Estate, Sheung Shui.  At an identification parade held on 20 February 2014, PC 4116 identified the appellant.

Charge 7

8.  Having been charged with the offences the subject of Charges 1 to 6, on 2 June 2014 the appellant was granted bail on condition that he attend his trial in the District Court on 20 August 2014.  The appellant failed to do so, but was re-arrested on 3 August 2015.

9.  The appellant accepted the evidence of a Triad Expert that “Sheung Shui Wo Shing Wo” is a Triad group active in the Sheung Shui area, and that the reference to the line of “Big Nose” was to a faction of the Triad group operating under a person nicknamed “Big Nose”.

Reasons for sentence

10.  In his reasons for sentence, the judge noted that the appellant was a single man of 23 years of age and that in 2009 he had been convicted of an offence of occasioning actual bodily harm, for which he had been sentenced to serve 80 hours of Community Service.

11.  The judge noted that it had been submitted in mitigation that the appellant had committed the offences, six of which had occurred more than four years earlier, because he had fallen under the bad influence of his peers.  Having left school he had been unemployed.  He noted that it had been submitted that the appellant had failed to surrender to bail because he did not have the courage to face the consequences of what he had done.

12.  Of the seven offences, the judge said:^[1]

“ The present offences involved four separate incidents. The two blackmail incidents (were) committed in the space of about six weeks. The first blackmail incident related to Charges 1 to 3 while the second blackmail incident related to Charges 4 to 5. The third incident of course is another separate offence which involves the defendant’s selling of cocaine to PW1 and that relates to Charge 6. The last separate incident is of course the absconding offence in Charge 7...”

Starting point for sentence

Charge 1: claiming to be a member of a Triad Society

13.  Having adverted to the judgment of this Court in HKSAR v Tse Yiu Ming,^[2] the judge said that the usual range of sentence for the offence was 12 to 18 months’ imprisonment.  Then, having noted that the offence was committed as a threat to obtain “protection money”, the judge stipulated a starting point for sentence of 15 months’ imprisonment.

Charges 2 and 4: blackmail

14.  Having referred to the judgment of this Court in HKSAR v Tam Yun Chuen ^[3], the judge noted that this Court said that a sentence of as high as 4 years’ imprisonment would be appropriate for more serious cases of blackmail.  He noted that the demand made in Charge 2 had been made in the context of the appellant’s claim to be a member of a Triad Society and reinforced by the presence of three other men.  By contrast, he noted that the offence the subject of Charge 4 had been committed alone, but found the fact that the appellant did not reassert his claim to be a member of a Triad Society must be viewed in the context of his earlier assertion to that effect.  Then, he stipulated a starting point for sentence of 3 years’ imprisonment for both Charges 2 and 4.

Charges 3 and 5: theft

15.  Having noted that the amount of money involved in the theft the subject of Charge 3 was only $100, the judge said that the amount of money involved was only one factor in determining sentence.  Then, he stipulated a starting point for sentence of 9 months’ imprisonment for both Charges 3 and 5.

Charge 6: unlawful trafficking in dangerous drugs

16.  Having adverted to the judgments of this Court in the Attorney-General v Rojas ^[4] and R v Lau Tak Ming ^[5], in which sentencing guidelines for unlawfully trafficking in cocaine had been given, the judge said that the range of sentence for unlawfully trafficking in 2 to 10 grammes of cocaine was between 2 and 5 years’ imprisonment.  Then, he stipulated a starting point for sentence of 2 years’ imprisonment for Charge 6.

Charge 7: failing to surrender to custody

17.  Having noted that the appellant had absconded for almost one year, the judge stipulated a starting point for sentence of 6 months’ imprisonment for Charge 7.

Discount

18.  To reflect the appellant’s pleas of guilty to the charges, the judge said that he afforded the appellant a discount of one-third of that taken as the starting point for sentence for each of the charges.^[6]

Totality

19.  Having said that “the principle of totality requires me to adjust the sentences accordingly”, the judge said:^[7]

“ In respect of each blackmail incident, it is true that it is separate and distinct offence. Thus, it would not be right to order concurrent sentences in respect of these two blackmailing incidents.”

Charges 1 to 3

20.  Then, the judge ordered that the sentences of 24 months’ and 6 months’ imprisonment imposed in respect of Charges 2 and 3 respectively be served concurrently, but that 2 months of the sentence of 10 months’ imprisonment imposed in respect of Charge 1 be served consecutively to the total sentence of 24 months’ imprisonment imposed in respect of Charges 2 and 3.  Accordingly, the total sentence imposed in respect of Charges 1 to 3 was 26 months’ imprisonment.

Charges 4 and 5

21.  The judge ordered that the sentences of 24 months’ and 6 months’ imprisonment imposed in respect of Charges 4 and 5 be served concurrently.  However, repeating his earlier determination that the “two blackmail incidents are separate and distinct offences targeting at the same victim” the judge ordered that only 16 months of the sentences imposed in respect of Charges 4 and 5 be served concurrently to the total sentences imposed in respect of Charges 1 and 3.  The effect of that order was that 8 months’ imprisonment of the total sentence imposed in respect of Charges 4 and 5 was to be served consecutively to the total sentences imposed in respect of Charges 1 and 3.  Accordingly, the total sentence imposed in respect of Charges 1 to 5 was 34 months’ imprisonment.

Charges 6 and 7

22.  Of Charges 6 and 7, the judge said:^[8]

“ ...these two are separate offences and were distinct in nature. Even taking into account the principle of totality, I have to order that the sentences of these two charges to run wholly consecutively to the sentence that I have ordered in respect of Charges 1 to 5 (34 months + 16 months + 4 months).”

Grounds of appeal against sentence

23.  Mr Albert Poon submitted in his grounds of appeal against sentence that the sentence was manifestly excessive, in that the judge failed: to consider the principle of totality adequately; to balance deterrence with rehabilitation; and to give sufficient consideration to the fact that this was the appellant’s first custodial sentence. 

24.  Mr Poon submitted that having regard to all the circumstances of the commission of the two groups of blackmail offences, Charges 1-3 and Charges 4 and 5, the total sentence of 34 months’ imprisonment was excessive. No force had been used on the victim and the appellant was alone in the commission of the second blackmail. He contended that the judge was wrong to impose the same sentence, 24 months’ imprisonment, for the two offences of blackmail. That error impacted on the judge’s order as to the totality of sentence imposed in respect of Charges 1 to 5.

Charge 6

25.  Mr Poon submitted that the sentence of 16 months’ imprisonment imposed in respect of Charge 6 was manifestly excessive, given the role of the appellant and the fact that he had trafficked unlawfully in only 2.01 grammes of cocaine.

Charge 7

26.  At the hearing Mr Poon abandoned his written submission that the judge was in error to order that all of the sentence of 4 months’ imprisonment imposed in respect of Charge 7 be served consecutively to the sentence of 16 months’ imprisonment imposed in respect of Charge 6 and consecutively to the total sentence of 34 months’ imprisonment imposed in respect of Charges 1 to 5.

27.  Finally, Mr Poon submitted that having regard to the total amount of money stolen, namely $200, the amateurish nature of the blackmail and the small amount of dangerous drugs unlawfully trafficked, the total sentence of 54 months’ imprisonment was manifestly excessive.

The respondent’s submissions

One-third discount

28.  For the respondent, Ms Catherine Ko submitted that the appellant was fortunate to have been afforded a one-third discount for his pleas of guilty.  That discount was to be afforded to a defendant whose plea of guilty was timely.^[9]  The appellant’s pleas of guilty were anything but timely.  In the first place, he had absconded and remained at large for about one year.  Then, having been brought to the District Court in August 2015, on 25 September 2015 he indicated that he was pleading not guilty to the offences and a trial was fixed for four days to commence on 28 December 2015.  Only in mid-December 2015 was the District Court informed that the appellant proposed to plead guilty.

Blackmail

29.  Ms Ko submitted that the offence of blackmail, particularly when committed in the context of Triads, was a serious offence.^[10]  The claim to be a member of the Triad Society in the context of this case carried with it an implied threat of violence.^[11]  Ms Ko submitted that the starting point taken for sentence for the offences of blackmail of 3 years’ imprisonment was proper.  She contended that the judge was lenient in stipulating a starting point for sentence for the second offence of blackmail of 3 years’ imprisonment.  The commission of the second offence was an aggravating factor, entitling the judge to impose a higher sentence for the second offence.

Unlawful trafficking in cocaine

30.  Ms Ko suggested that the starting point for sentence of 2 years’ imprisonment stipulated for unlawful trafficking in 2.01 grammes of cocaine was entirely appropriate.  The quantity of the narcotic was the single most important factor in assessing sentence for this offence.^[12]

Totality

31.  Given that the offences of unlawfully trafficking in dangerous drugs and of failing to surrender to custody were separate and distinct offences in nature and in respect of the time of the commission of the offences Ms Ko submitted that in principle, subject to a consideration of the totality of sentence, it was appropriate for the judge to order that they be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 5.  She submitted that it was clear that the judge had paid regard to the issue of totality of sentence.  Of the offence of failing to surrender to custody, Ms Ko invited the Court to note that this Court said that the sentence would normally be made consecutive to the sentence of imprisonment imposed in respect of the substantive offence.^[13] In the result, she submitted that the total sentence of imprisonment imposed on the appellant was justified.  That was all the more so, given that the judge had afforded the appellant an unjustified discount of one-third taken as the starting point for sentence.

A consideration of the submissions

A one-third discount from the starting point

32.  On 3 June 2014, the appellant having indicated to District Court Judge Browne that he would plead not guilty to the six charges he faced, the judge fixed a trial to commence on 20 August 2014, reserving a total of three days.  In addition, he extended the appellant’s bail to that date.  On 20 August 2014, the appellant failed to answer his bail at the District Court and District Court Judge G Lam issued a warrant for his arrest.

33.  Having been re-arrested, the appellant appeared in the District Court on 5 August 2015 and the case was adjourned.  On 14 August 2015, the appellant appeared again in the District Court when the matter was adjourned to 25 September 2015.  On that date, the appellant intimated to District Court Judge G Lam that he intended to plead not guilty and the judge set down the trial to commence on 28 December 2015, with a total of four days reserved.  By a letter dated 17 December 2015, solicitors representing the appellant informed the District Court that on arraignment the appellant intended to plead guilty to the seven charges.

34.  Regrettably, none of these matters, were drawn to the attention of the single judge.  Ms Ko did not represent the respondent at that hearing.

35.  As noted earlier, the judge said that he afforded the appellant a discount of one-third from the starting point he stipulated “...because of the defendant’s plea”.  He did not advert to the issue that the pleas were anything but timely pleas of guilty.  With respect to the judge, he fell into error.  The error was fundamental and it falls to this Court to sentence afresh.

36.  This Court noted in its judgment in HKSAR v Lo Kam Fai ^[14] that a discount of one-third from that stipulated as the starting point for sentence is to be afforded only for a timely plea of guilty:

“ It has been long established in this jurisdiction that the full discount of one-third from that taken as a starting point for sentence for a plea of guilty is afforded only in circumstances where that plea is timely. The appropriate reduced discount to be afforded to a defendant where a plea of guilty is not timely will reflect the individual circumstances of the particular case. A range of factors may be relevant: the length of time that justice has been delayed; whether or not the defendant surrendered to the authorities ultimately or whether it was necessary for him to be re-arrested; the inconvenience and wasted expense and costs caused by the aborted scheduled hearing, to witnesses, counsel and the court. That is particularly the case, if witnesses have travelled to Hong Kong from overseas or remained in Hong Kong, where otherwise they would not have done so, in order to give evidence. There may be many other relevant factors.”

37.  The Court went on to note that:^[15]

“ ...the usual range of discount afforded to a defendant who has absconded is about 20% to 25%. Of course, there are circumstances peculiar to a particular case which will justify discounts outside that range. Within the usual range, the judge has a discretion in determining the discount appropriate to the circumstances of any particular case.”

38.  Of the usual range of discount of about 20% to 25%, the Court noted that in its judgment in HKSAR v Kwok Shiu To ^[16] it was determined that a discount of only 20% was appropriate where, having absconded whilst on police bail in February 2001, the appellant was not re-arrested until August 2005.  Also, the Court noted that in HKSAR v Kwan Po Keung ^[17], this Court had said that the judge ought not to have afforded the appellant the full one-third discount where, having been granted bail, the appellant had failed to surrender to court on 27 March 1998 and had not surrendered to the police until 25 October 2010.  This Court said that a discount of only 25% from that taken as a starting point was appropriate.^[18]

39.  It is clear that in failing to attend his trial on 20 August 2014 this appellant caused that date to be wasted, no doubt with ramifications for the other two days which had been reserved for his trial.  It is clear from the judge’s notes that the prosecution was ready to proceed.  So, there was inconvenience caused to witnesses.

40.  As noted earlier, the appellant remained at large for almost a year.  He did not surrender to the police.  Rather, he was “re-arrested during a stop-and-search investigation on the street.”  Then, on his third appearance in the District Court the appellant intimated that he would plead not guilty to the charges and the case was set down for trial.  It was only 11 days before the trial was to begin that the appellant intimated to the District Court that he would plead guilty to the charges.

41.  In all the circumstances, we are satisfied that the appellant was entitled to a discount to reflect his pleas of guilty to Charges 1 to 6 of 25% only.  He was entitled to a discount of one-third from the starting point taken for Charge 7.

Blackmail

42.  As Ms Ko pointed out the commission of an offence of blackmail in the context of claiming to be a member of a Triad Society is a serious offence.  In the judgment of this Court in HKSAR v Tam Yun Chuen ^[19], Yeung JA, as Yeung VP was then, said of demands for ‘Tor Dei’ from an employee of a massage establishment, in the context of claims to be members of the 14 K Triad Society:^[20]

“ Triad members bullying law abiding citizens in order to extort money from them is an extremely serious offence and must be deterred. We wish to repeat what this Court said in HKSAR v Wong Fu Wa [1991] HKC 363 at p 365 D-F:^[21]

“What is however very clear is that this type of offence is still quite prevalent.  There can also be no doubt that a serious view has to be taken of it.  The sort of threats which are made either implicitly or explicitly cause fear and disquiet to victims.  The courts must demonstrate to offenders that this type of activity will not be tolerated.”

In Wong Fu Wa (supra), we expressly approved a starting point of four years’ imprisonment and there was no reason not to adopt it.”

43.  As noted earlier, the judge made reference to this case specifically, noting that this Court had approved a starting point of 4 years’ imprisonment for the offence of blackmail.  However, in stipulating a starting point for sentence of 3 years’ imprisonment for the offences of blackmail the judge noted that the demand payment was “one-off as opposed to the periodic payments that are more serious than this type of offence” and that the sum demanded was only $100.  We are satisfied that he was correct in taking that approach.

Unlawful trafficking in cocaine

44.  In stipulating a starting point to sentence of 2 years’ imprisonment for unlawfully trafficking in 2.01 grammes of cocaine, the judge took an essentially arithmetic approach to sentence.  He was entitled to do so.

45.  No issue was taken by Mr Poon with the starting points taken by the judge for the offence of claiming to be a member of a Triad Society, theft or failing to surrender to custody.  We are satisfied that he was correct in that approach.

Discount of sentence

46.  Applying a discount of 25% to the starting points stipulated for sentence for Charges 1 to 6 and giving the appellant the benefit of a small extra discount where necessary to provide for whole numbers, we are satisfied that the appropriate sentence imposed on the appellant for those charges is:

Charge 1 - 11 months’ imprisonment;

Charge 2 - 27 months’ imprisonment;

Charge 3 - 6 months’ imprisonment;

Charge 4 - 27 months’ imprisonment;

Charge 5 - 6 months’ imprisonment; and

Charge 6 - 18 months’ imprisonment.

47.  Affording the appellant a full one-third discount from the starting point taken for sentence for Charge 7, the appropriate sentence is 4 months’ imprisonment.

Totality

48.  In approaching the appropriate totality of sentence, regard is to be had to the fact that the offences the subject of Charges 1 to 6, were committed in a period of just over two months at a time when the appellant was 19 years of age.  Although he had been the subject of a Community Service Order, the appellant had never been the subject of a custodial sentence.

49.  The judge was correct to treat Charges 1 to 3 as one incident and to have regard to the judgment of this Court in HKSAR v Tam Yun Chuen to determine the starting point to be taken for the offence of blackmail.  However, it is to be noted of that case that the offence of claiming to be a member of a Triad Society was subsumed within the factual background of the single charge of blackmail.  There, the applicant, who confronted an employee of a massage establishment in the company of four other men, claimed to be members of the 14 K Triad Society and demanded monthly payments of thousands of dollars.  Similarly, in HKSAR v Wong Fu Wa ^[22], cited with approval by Yeung JA in HKSAR v Tam Yun Chuen,the applicants pleaded guilty to single charge of blackmail.  There was no charge of claiming to be a member of a Triad Society.  Rather, the fact that the appellant claimed to be the local bully responsible for looking after bars in the vicinity and that he belonged to the 14 K Triad Society was subsumed into the overall circumstances of the charge of blackmail.  It was in that context, that the Court approved of a starting point of 4 years’ imprisonment.  So, the starting point of 4 years’ imprisonment for an offence of blackmail in a Triad context encompasses the claim to be a member of a Triad Society.

50.  In the appellant’s case the claim to be a member of a Triad Society is the subject of a separate charge.  However, given that in stipulating a starting point for sentence for the offence of blackmail, the judge had regard to the two cases to which we have referred, it was not appropriate to order that the sentence of imprisonment imposed in respect of a separate charge of claiming to be a member of Triad Society in the context of blackmail be served consecutively in part to the sentence imposed in respect of the offence of blackmail.  Accordingly, it would be appropriate for the sentences imposed in respect of Charges 1 to 3 to be served concurrently.  Accordingly, the total sentence to be imposed in respect of those charges is 27 months’ imprisonment.

51.  The judge was correct to order the 8 months of the sentence of imprisonment imposed in respect of Charges 4 and 5 to be served consecutively to the sentences of imprisonment imposed in respect of the first blackmail incident.  It would be appropriate to order that 8 months of the sentence of imprisonment imposed in respect of Charge 4 be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 3.

52.  Having regard to totality, we are satisfied that it is not appropriate to order that the whole of the sentence of imprisonment imposed in respect of Charge 6 be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 5.  Rather, it would be appropriate to order that 6 months only of the sentence of imprisonment imposed in respect of Charge 6 be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 5.

53.  On the other hand, we are satisfied that the judge was correct in ordering all of the sentence of imprisonment imposed in respect of Charge 7 be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 6.  When that is done, the total sentence imposed on the appellant becomes 45 months’ imprisonment.

Conclusion

54.  For the reasons that we have set out, we allow the appeal and quash the sentences of imprisonment imposed by the judge.  In their place, we impose the following sentences and make the following orders:

Charge 1 - 11 months’ imprisonment;

Charge 2 - 27 months’ imprisonment;

Charge 3 - 6 months’ imprisonment;

Charge 4 - 27 months’ imprisonment;

Charge 5 - 6 months’ imprisonment;

Charge 6 - 18 months’ imprisonment; and

Charge 7 - 4 months’ imprisonment.

55.  We order that the sentences of imprisonment imposed in respect of Charges 1 to 3 be served concurrently with one another and that the sentences of imprisonment imposed in respect of Charges 4 and 5 also be served concurrently with one another.  However, we order that 8 months of the sentence of imprisonment imposed in respect of Charge 4 be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 3.  Further, we order that 6 months of the sentence of imprisonment imposed in respect of Charge 6 be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 5.  Finally, we order that all of the 4 months’ imprisonment imposed in respect of Charge 7 be served consecutively to the sentences of imprisonment imposed in respect of Charges 1 to 6.  Accordingly, the total sentence imposed on the appellant is 45 months’ imprisonment.