HKSAR v. CHEUNG WAN ING

CACC 118 /2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 2000

(On Appeal from DCCC 1146 of 1999)

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J U D G M E N T

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Hartmann J:

1. On 2 March of this year in the District Court, before Judge Toh, the Applicant was convicted on his own plea of two offences. The first was blackmail, contrary to sections 23(1) and (3) of the Theft Ordinance, Cap. 210. The second was claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151. In respect of the blackmail offence, the Applicant was sentenced to 2 years and 6 months' imprisonment. In respect of the offence of claiming to be a member of a triad society, he was sentenced to 8 months' imprisonment. The judge ordered that the sentences be served concurrently. The Applicant now seeks leave to appeal against the sentence imposed for the offence of blackmail.

2. The facts of the case are as follows. On 28 October of last year, the Applicant entered premises in Tsim Sha Tsui which were being decorated as a restaurant. The Applicant was accompanied by 4 men. The Applicant and one of the other men spoke to the manager of the intended restaurant asking if the restaurant was as yet being 'protected' by anybody; if not then in future it would be protected by them. During this conversation the Applicant identified himself as a 'tor tei', this being slang for a local 'tough guy' who commands the street. The manager said that he would have to consult with his employer before any decision could be made and in order to facilitate future contact, one of the men - but not the Applicant - gave his pager number to the manager.

3. The manager reported the matter to his employer who, in turn, made a report to the police. A meeting was then arranged under police supervision. An undercover police office played the part of the employer. The pager number was used to make contact and on 30 October, the Applicant came to the restaurant. On this second occasion, however, he was alone. During the ensuing conversation with the undercover police officer, he claimed to be a member of a triad society and said that all the businesses in the area were under the protection of himself and his associates. He intimated that some businesses had initially been reluctant to pay protection moneys and as result they had been 'kicked', as he apparently expressed it, into agreement. He then demanded $5,000.00 per month as protection money, saying that a regular payment of this sum would ensure that nobody else dared to collect a similar fee.

4. The conversation was terminated when a police officer entered the restaurant and arrested the Applicant. After his arrest, the Applicant was interviewed under caution and made a full admission.

5. Mr Harris, who appears for the Applicant, has founded his application on the submission that the judge in assessing an appropriate sentence chose as her starting point a sentence which was in all the circumstances excessive, namely, one of four years imprisonment. Mr Harris has emphasized that each case depends on its own facts. He has said that there is no tariff for this type of offence. Mr Harris referred to three main factors which, he says, render the starting point chosen by the judge manifestly excessive.

6. First, Mr Harris submitted that, other than the threat implicit in claiming to be a triad member, no violence or threat of violence was used by the Applicant who was alone when he had his conversation with the undercover police officer although, of course, he had on the first occasion been accompanied by 4 of his associates.

7. We find no substance in this submission. On the first occasion the Applicant had had the support of numbers and the purpose of his visit would have been apparent to everybody present. On the second occasion he informed the undercover police officer that he was a triad member and spoke of businesses in the area which only yielded to the request for protection money after force, or at least a threat of force, had been used. In R v Lee Keng-kwong C.A. 182 of 1992, this Court rejected an almost identical argument. On that occasion Power JA said the following:

"As to the suggestion that there was no threats of violence, we cannot help but say that any triad threat contains an implied threat of violence that triad retribution will be wreaked upon the victim if he does not comply. Victims undoubtedly understand and are meant to understand that such a threat is implicit in the words that were spoken and because of this are prepared to make payment ..."

8. The second submission of Mr Harris was that there was a notable absence of sophistication in the blackmail demand. He has pointed to the fact that a pager number which was traceable was supplied.

9. We do not find anything mitigatory in that. The arrogance exhibited in the neglect to take precautionary measures is evidence of the fact that triads know from experience that invariably victims, duly intimidated, would rather pay and keep silent than report the matter to the police.

10. In his third submission, Mr Harris said that co-operation with the police was total and immediate. That is of course correct. But it must be remembered that the Appellant was caught red-handed. His demands for protection money had been directed to an undercover police officer and he was arrested on the spot by a second officer. In any event, the Judge at first instance recognised the admissions made to the police and the plea of guilty by granting the normal one-third discount in respect of both offences.

11. Mr Harris has also complained that the sentencing judge should, before passing sentence and in order to properly assess the quantum of that sentence, have obtained reports. But this Court has said that blackmail of this kind is a serious offence demanding an immediate custodial sentence and we are unable to criticize the judge for not calling for reports when she appreciated fully that a custodial sentence would have to be imposed.

12. As to the general submission that the starting point chosen by the judge was excessive, it would appear that the judge relied upon a ruling of this Court given in late 1998 in HKSAR v. Wong Fu Wa & another [1999] 1 HKC 363, in fact, an appeal from the judge herself.

13. The facts of that case were described by Mayo JA as an entirely typical extortion exercise. The two applicants in that case had gone to a bar in Wanchai and demanded protection money of $10,000.00 per month. At the first meeting with the staff of the bar some 10 to 15 men had come in the bar premises, they being described by the applicants as associates who would render assistance if required.

14. In passing sentence, the judge had assessed an appropriate starting point of 5 years' imprisonment. This Court reduced that starting point to one of 4 years. But in so doing Mayo JA said the following:

"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. While the starting point of five years' imprisonment was too high we do not think that four years' imprisonment after trial is excessive as a starting point."

15. While the amount of money demanded may have been greater and while the number of men brought into the premises as a visible show of force may have been more numerous, we can find no discernible difference in the moral culpability of the applicants in the case that has been cited and the Applicant in the case now before us. These are not cases of a single man holding himself out to be the local bully boy in order to exact a few hundred dollars from shopkeepers or storeholders. In both cases significant sums of money were demanded on a regular basis. In both cases force of numbers was employed to show the victims that they were dealing with an organised gang and that retribution was, therefore, not an idle threat.

16. In the circumstances, we are satisfied that the starting point chosen by the judge in assessing the appropriate sentence is not manifestly excessive. The application for leave to appeal must therefore be dismissed.