THE QUEEN v. KWAN TAK HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1108 OF 1991

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BETWEEN

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J U D G M E N T

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1. This appellant appeals against a total sentence of 31 months passed at North Kowloon Magistrate's Court. The Appellant had been charged with four offences of blackmail and three of theft and claiming to be a member of a triad society; after the first witness had completed his evidence, he pleaded guilty to five charges, and was later convicted of the other three.

2. This was a typical nasty type of blackmail case where a demand was made with menance; on the other hand, it appears to me that he was charged with a variety of offences which stemmed from the main matter, namely that blackmail.

3. The claim to be a member of a triad society was indeed part and parcel of the blackmail and so was the theft. The sentencing was somewhat unusual in that the magistrate sentenced him to four months' imprisonment for the triad society then 15 months' imprisonment consecutive for blackmail. As far as the theft of the $100.00 which is part and parcel of the blackmail, he was sentenced to six months concurrent with the blackmail, but consecutive to the triad society offence, which I confess I find very difficult to follow. The second blackmail was also 12 months. The magistrate in rather brief reasons said he took into account the fact the defendant did not have a clear record and what was said on his behalf, and also took into account the totality of the sentences. The magistrate did not really explain the reasoning behind the separation of the consecutive nature of the first matter and the first blackmail nor the distinction between the two blackmails, if any. It appears to me, having read all the papers, that Mr. Pallaras is right when he says that a court may impose consecutive sentence, but in my judgment, one has to have regard to all the circumstances. The sentence was low as far as blackmail is concerned. In my judgment, the proper sentences should have been one of 18 months' imprisonment with the triad society as a concurrent sentence with the theft and the other blackmail. Doing the best I can, I think the appropriate way to approach this case is as follows.

4. It was a nasty blackmail, and blackmail should be treated seriously and people should receive heavy sentences for them, but having regard to the facts of this case, I alter the sentence to 18 months' imprisonment, for the blackmail with a similar sentence for the other blackmail charges, 6 months for the theft, 4 months for the triad charge all to run concurrently.