HKSAR v. CHEUNG KING SHUN

CACC 13/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 13 OF 2000

(ON APPEAL FROM DCCC 879 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 20 December 1999, the Applicant was convicted in the District Court, following a trial before Deputy Judge Saunders (as he then was), on three charges of blackmail (charges 1 to 3), and two further charges of criminal intimidation and possessing a corrosive substance (charges 4 and 5 respectively). The judge imposed concurrent sentences of two years' imprisonment on charges 1 to 4 and three and a half years' imprisonment on charge 5, making a total sentence to be served of three and a half years' in all. The Applicant now seeks leave to appeal against sentence having abandoned, on 31 May 2000, an application in relation to conviction.

Grounds of appeal

2. The short and principal point, correctly taken on the Applicant's behalf by Mr Peter Ip, and conceded by Miss Louisa Lai for the Respondent, is that the 5th charge, which had been brought under section 29A of the Offences against the Person Ordinance, Cap. 212, carried a maximum sentence of three years' imprisonment with the result that the sentence of three and a half years exceeded the statutory maximum for the offence. It is plain that the judge was unaware of the maximum sentence for this offence having taken as his starting point four years' imprisonment.

3. In passing, we observe that the judge, somewhat curiously, discounted the starting point by six months to take into account the Applicant's good character although the Applicant had only been in Hong Kong for a matter of hours before this offence was committed, having travelled to Hong Kong from the mainland for the express purpose of committing the crime in charge 5. In R v Chan Leung CACC 347/1994, it was said that the fact that someone was a resident of the mainland with a clear record in Hong Kong was a matter to be given little weight, and the same point, in a more recent case, was emphasised in HKSAR v Tong Fuk-sing (1999) 3 HKC 332 at 336.

4. The judge was also, and understandably so, criticised by Mr Ip in his most cogent address to the court, for drawing support for the sentence he imposed from examples of three other cases where corrosive fluid had been thrown with intent to do grievous bodily harm, contrary to section 29 of the Ordinance. An offence under that section carries a maximum sentence of life imprisonment. It was submitted that the sentencing considerations relevant to such offences were hardly to be equated with an offence under section 29A which merely provides for the possession, custody, or control of corrosive fluid which is capable of inflicting grievous bodily harm.

Fresh approach to sentence

5. Plainly the judge erred in principle by imposing a sentence above the statutory maximum. The question now remains for this court, approaching the matter afresh, to determine what the proper sentence on charge 5 should be.

Factual basis for sentence

6. By way of background, the judge found that the Applicant had undergone a form of traditional Chinese marriage with PW1 on the mainland but that this was never registered. When the Applicant learnt that PW1 had decided to remarry, this distressed him. The judge found, as he expressed it in his Reasons for Verdict, that the Applicant:

".... has, since their separation, used the fact of remarriage without divorce, and the fact of their child, as a means to try to exercise some form of authority over PW1. I accept her evidence that over the years she operated the boutique in Shenzhen he made demands on her for money and used his physical and verbal strength to ensure he received money. I find that when he learned she had closed her boutique in Shenzhen and was to remarry yet again, he saw an opportunity to replace the loss of income he had had with a substantial demand for $200,000, couched in the form of a demand for compensation, for the surrender of his rights to his daughter. I am satisfied the demand was made together with threats of violence as alleged. I am satisfied that the accused made the demands and threats as alleged, and with those demands not having been met, came to Hong Kong in possession of corrosive fluid with the intention of using it to harm PW1 if he did not get what he wanted."

7. The blackmail offences in charges 1 to 3 disclosed three separate demands for $200,000 made to PW1 in the months of May, June and July 1999. All these demands were made by means of long-distance telephone calls from the mainland. When the last of these was made on 23 July 1999, the blackmail was coupled with a threat (charge 4) to injure PW1's daughter.

8. The final charge arose from the Applicant being seen at night acting furtively in the close vicinity to PW1's flat on the 7th floor of her block. He was found in possession of a glass bottle containing 25 millilitres of nitric acid, a corrosive liquid which was at a concentration of 47%.

Consecutive sentence merited on charge 5

9. Plainly the circumstances relating to charge 5 were very serious and merited a sentence which would have added to the sentences passed on the other charges. The judge's approach on this aspect, with the greatest respect to him, was again flawed. He said at the commencement of his Reasons for Sentence:

"I am satisfied that all these charges are part of a continuing exercise on your part and that they should be treated as such, thereby receiving a concurrent sentence."

10. The offence disclosed in charge 5 was quite different in its nature and was, in our judgment, deserving of a consecutive sentence. We feel, in all the circumstances, that a sentence of eighteen months' imprisonment would have been appropriate, although having regard to totality, we consider that six months of this sentence should be ordered to run concurrently.

Conclusion

11. For the reasons we have given, we grant leave and, treating the application as the hearing of the appeal, we allow the appeal and quash the sentence of three and a half years on charge 5. We shall substitute a sentence of eighteen months' imprisonment, with only twelve months of this sentence to be served consecutively to the other sentences of two years' imprisonment which are not criticised or affected by anything said in this judgment. This leaves a sentence of three years' imprisonment to be served.

Counsel's duty to be aware of maximum sentence the court may impose

12. Before we leave this matter, it is a rare occurrence for this court to be provided with an example of a judge who has imposed a sentence which was higher than the maximum provided by statute. We emphasise, if further emphasis be needed, the duty on counsel, and particularly prosecuting counsel, not to stand idly by, ignoring the obvious error into which the judge has fallen in such circumstances. It is counsel's duty on both sides of the courtroom, albeit in the present case the defendant was unrepresented in the District Court, to be aware of the maximum sentence to which a defendant is liable and, if the judge, through oversight or carelessness, exceeds the maximum, it is counsel's duty to ensure that the matter is put right there and then. It is a pointless waste of time and resources to deal with the matter in the way which has arisen in the present case when it could so easily have been cured when the error was made.

13. The probability is that counsel for the prosecution had failed to acquaint himself with the relevant statutory maximum, but this was even more important in a case where the defendant in the trial did not have the benefit of legal representation. The prosecution had been represented in the District Court by experienced counsel who had been instructed on fiat. We do not for a moment suggest that he deliberately failed to point out the error into which the judge had fallen. It was more than likely to have been an oversight on the part of counsel, as it seems also to have been on the part of the judge.

14. We express the hope that counsel will in future make sure that they are fully acquainted with the statutory maximum and so that there will be no recurrence of this kind in the future.