THE QUEEN v. CHAN KWAN KAN

IN THE COURT OF APPEAL

No. 391 of 1987
(Criminal)

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JUDGMENT

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Penlington, J.

1. This is an application for leave to appeal against sentences passed following convictions in charges of blackmail and theft, the victim being the proprietor of an aquarium stall in the Tai Yuen Market, Tai Po. The actual blackmail took place on the 28th of June when a demand was made by the applicant for $200, the threat being that he was a member of the Sun Yee On triad society and that if the money was not paid, the victim's stall would be damaged. Being the proprietor of an aquarium stall with what he said were expensive fish, the victim was particularly vulnerable to such a threat. He only had $60 with him and he gave the applicant that sum to avoid the threat being carried out.

2. About a month later the applicant went back to the stall, the threat was not specifically repeated but quite clearly on the basis of the earlier threat, a further demand was made and another $40 was given.

3. The applicant was convicted after trial, his defence being that he did not make the demands and that the money was given to him as a loan. It is the main thrust of Mr Murray’s argument in support of his contention that the concurrent sentences passed of 2 years for blackmail and 9 months for each of the thefts were manifestly excessive, that this was a “try on” and that there was no evidence that the applicant was in fact a member of the Sun Yee On triad society and no evidence that if the money had not been paid, the threats would have been carried out. I do not agree.

4. The applicant said he was a member of the Sun Yee On triad society and while there was no ether evidence that he was, even if we accept that admission, as indeed the Deputy Judge appears to have done, for myself I cannot see any difference. Here was a man who went to a stallkeeper and said he was a member of a triad society, which claim the stall proprietor accepted and he also accepted that the threats would be carried out if he did not pay up. For myself I see no reason to distinguish, on a charge of blackmail, whether in fact the person making the threat was in a position to carry them out if in fact the victim thought he was and paid the money on that basis.

5. As the Deputy Judge said these are prevalent offences and people who are in vulnerable positions, such as the stallkeeper here deserve protection. It has been suggested that sentences of 2 to 3 years are for only organised classes of extortion by gangs. If that is so, then in my view those sentences are far too light. The applicant was drug dependant and has conviction for drug offences in 1985 and 1986. He also has a conviction for theft. He may well have been demanding money to satisfy his addiction but I do not consider that is any substantial mitigation for an offence of this sort. I think in the circumstances of this case, the sentence of 2 years imprisonment for the blackmail was amply justified. The application is dismissed.