HKSAR v. WONG FU WA AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 383
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. Both Applicants pleaded guilty in the District Court before Judge Toh to blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210 and were sentenced to 3 years imprisonment. They now seek leave to appeal against their sentences.

2. After an incident in the early hours of the morning of 27th December 1997 at a bar in Wanchai the 1st Applicant introduced himself as the local bully in the district. He said that he belonged to the 14K and was responsible for looking after the bars in the vicinity. Ten or fifteen other males then came into the bar. The 1st Applicant told the bar manager that they were his brothers who would offer assistance at any time. The 2nd Applicant was one of these. After the others left he stayed behind with the 1st Applicant.

3. Both Applicants attended the bar again on 9th January 1998 when they met the proprietor of the bar who was to be PW2 at the trial. A demand for $10,000 was made. The proprietor inquired what would happen should she decline to meet their demands and was told "you just think what would happen if you don't pay". PW2 then made a report to the police.

4. A further meeting was arranged in the early hours of 1st February 1998 which was also attended by an undercover police inspector. He represented himself to be a manager. He negotiated the $10,000 a month down to $8,000 a month and two dozens bottles of beer per week. This conversation was taped and the 1st Applicant left a telephone number with the inspector which it transpired was the telephone number of his girlfriend.

5. The next day the 1st Applicant came and demanded $8,000 from PW2. She managed to make a report to the police. She gave the 1st Applicant the money in marked notes. When he left the bar he was arrested by another police officer.

6. As can be seen from the agreed facts this was an entirely typical extortion exercise. It was, however, more serious on account of the mass of force initially demonstrated.

7. The 1st Applicant in his application complains that his counsel did not sufficiently place before the court his family and background circumstances. Also he didn't sufficiently emphasis the fact that he had co-operated with the police. He also went on to suggest that there was no victim of the crime.

8. Before us he added nothing of any significance.

9. Mr. Macrae for the 2nd Applicant argued two grounds of appeal. The first was that the starting point of 5 years imprisonment was manifestly excessive and the second was that his client should not have received as much punishment as the 1st Applicant as his role was less and unlike the 1st Applicant his client had not got a previous conviction for this type of offence.

10. Mr. Macrae referred us to R v. Chan Wing-cheong Cr. App. 98 of 1987 where it was held that 3 years after a trial was the appropriate starting point for offences of this nature.

11. It does however have to be observed that heavier sentences have been imposed in a number of cases since then. Unfortunately it would appear that these sentences do not seem to have had much deterrent effect. Mr. Saw, S.C. for the prosecution has helpfully provided some statistics for the yearly total of blackmail cases since 1990. In that year there were a total of 814 offences. The total remained reasonably constant until 1995 when it started to decline slightly until 1997 when the total amounted to 487 cases. For the first nine months of this year the total was 339 which is approximately in accordance with this slightly reducing trend.

12. 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.

13. The courts must demonstrate to offenders that this type of activity will not be tolerated. While the starting point of 5 years imprisonment was too high we do not think that 4 years imprisonment after trial is excessive as a starting point.

14. There is nothing very exceptional concerning the other matter raised by Mr. Macrae namely the disparity in sentence having regard to the lesser role played by the 2nd Applicant. He was undoubtedly lending support to the 1st Applicant.

15. Both Applicants are entitled to the usual 1/3 reduction for their pleas. If 4 years is adopted as the starting point this would mean that the sentences should be reduced to 2 years and 8 months.

16. Treating the application as the appeal we allow it and reduce the sentences from 3 years to 2 years and 8 months. To this extent the appeal is successful.