HKSAR v. LUK HAU CHEUNG

CACC 323/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 323 OF 2000

(ON APPEAL FROM DCCC NO. 517 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. On 27 July 2000, the Applicant was convicted by Judge Pang in the District Court on a charge of theft. He had pleaded not guilty. He was sentenced to 2 years' and 9 months' imprisonment. He now applies for leave to appeal against his sentence, his application for leave to appeal against his conviction having been dismissed on its abandonment earlier this morning.

The facts

2. In addition to being charged with the offence of theft, the Applicant had been charged with three offences of blackmail. In the first two of those charges, the owners of two garages in Ap Lei Chau had been parking their vehicles in an open space to which the public had access. Prior to their evidence, the allegation against the Applicant had been that he and others had demanded monthly payments from the owners of the two garages if they wanted to continue to park their vehicles there. The Applicant was held to have had no case to answer on those charges because when they came to give evidence, the owners of the garages said that the persons who had approached them had failed to specify what the consequences of not complying with the demands would be, and because their worries over what might happen to them if they did not comply were "self-generated". In other words, such demands as were made had not been accompanied by menaces. Moreover, the owners of the two garages either denied that the Applicant was "the front man" of the group or denied that he had been amongst the group at all.

3. In the third charge of blackmail, the proprietor of a small unit in Ap Lei Chau which repaired plant (PW3) had been parking his machines in the same area to which the public had access. Prior to PW3's evidence, the allegation against the Applicant had been that he had demanded monthly payments from PW3 if PW3 wanted to continue to park his machines there. The Applicant was held not to have had a case to answer on this charge on the basis that at trial there was no evidence that the Applicant had made any demand, let alone any evidence of any accompanying menaces.

4. The charge of theft on which the Applicant was convicted was linked to the third charge of blackmail. The judge found that PW3 believed that the area on which he had parked his machines was privately owned, and that the owner of the land could charge for its use. When PW3 was visited by the Applicant, the Applicant told PW3 that the land belonged to him. Although the Applicant did not demand any payment, PW3 knew "instinctively" that he had to pay. So when the Applicant next passed by, PW3 gave him a cheque for $2,000.00 drawn on the account in the name of PW3's business, but with the name of the payee left blank. That cheque was duly presented for payment and honoured. The judge found that although PW3 had been unwilling to hand over the cheque, he had felt that he had had no alternative.

The appropriate sentence

5. The Applicant is now 35 years old and has a number of previous convictions, for which he has been fined, disqualified from driving and sentenced to a suspended term of imprisonment. When sentencing the Applicant, the judge said:

"For reasons already given in the verdict I have acquitted you of blackmailing the victim. On the other hand I have found your taking of the cheque dishonest and amount to theft. Whether you expected the victim to be apprehensive or had acted fortuitously on it your action was still one that played on the fear of others. As such it deserves no less stricture from the court than in a proper case of Blackmail. Amongst other things, its seriousness lies in the fact that the victim carried out his trade in the same street as you hanged out so he was immobile as was vulnerable."

The judge added that he had referred to similar cases of blackmail, and although he was not equating the Applicant's case to one of blackmail, he said that a starting point for sentence of 2 years' and 9 months' imprisonment should be adopted. The judge described the Applicant as having had "more than a nodding acquaintance with the criminal law", and did not discount the sentence in any way. The criticism of the judge is that, although expressly disavowing it, the judge was in truth sentencing the Applicant for the offence of blackmail of which he had been acquitted rather than for the offence of theft of which he had been convicted.

6. It goes without saying that facts which may constitute separate offences for which a defendant has not been charged or convicted may be taken into consideration to determine the gravity of, and the appropriate punishment for, the offence of which the defendant has been convicted. Thus, the judge was perfectly entitled to take into account all the facts which he had found proved in relation to the Applicant's dealings with PW3 in determining what the proper sentence for the theft should be. The language which the judge used shows that he was alive to the need not to sentence the Applicant for the offence of blackmail of which he had been acquitted. But where the judge fell into error, we think, was in treating the Applicant's offence of theft as if it had been as serious as an offence of blackmail. That must have been the judge's view since he said that the offence of theft "deserves no less stricture from the court than in a proper case of Blackmail".

7. The fact is that the Applicant's offence of theft was nothing like as serious. He did not demand any money from PW3. All he said, admittedly in a blunt and forthright way, was that he was the owner of the land. Nor was that admittedly untruthful assertion of ownership accompanied by threats, let alone menaces. All that happened was that the Applicant's tone had been such as to make PW3 think that if he did not pay up, it would be "very troublesome". The absence of any demand, let alone any demand accompanied by menaces, meant that the Applicant's conduct, though undoubtedly deserving of punishment, and punishment amounting to imprisonment at that, could not be treated as being as serious as blackmail. In our judgment, an appropriate starting point for the judge to have adopted was 12 months' imprisonment. Like the judge, we have not discerned any mitigating factors which should have resulted in the Applicant's sentence being discounted in any way.

Conclusion

8. For the reasons we have given, we grant the Applicant leave to appeal against his sentence, we allow his appeal, we set aside the sentence of 2 years' and 9 months' imprisonment imposed by the judge, and we substitute for it a sentence of 12 months' imprisonment.