R. v. CHAN SAM MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.647 of 1996

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J U D G M E N T

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1. The appellant is aged 40 and he is married with two children. He has never before been in trouble, but as a result of a dispute on 28th October 1995 and his conduct in relation to it, he find himself the recipient of a term of six months' imprisonment and he appeals against that sentence.

2. He pleaded guilty to four offences :

(1) Criminal damage. It was alleged that he damaged a door frame and a telephone. For that offence, he received a term of one month's imprisonment.

(2) Assault occasioning actual bodily harm. He and his wife assaulted a lady name Lau Chi Mo. He also received a one month's sentence for that offence.

(3) Blackmail. The charge was that he made unwarranted demand of $1,000 with menaces. For this he was sentenced to six months' imprisonment; and

(4) Theft. The demand with menaces worked, in that the victim paid over the $1,000, and that constituted theft by the appellant. For that offence, the appellant was sent to prison for one month.

3. He was also ordered to pay compensation in the sum of $2,000 to the victim of these offences.

4. All these sentences were ordered to run concurrently, a total therefore of six months.

5. The facts were these, that on 28th October, the appellant's wife Madam Lam Yuk Ying who is aged 38 and is also of previous good character had an argument with Madam Lau. Apparently, Madam Lau owed Ms Lam, the wife, some money and there was an argument about it at the Tin Shui Estate. I am not told what happened, saved that it was suggested in mitigation before the magistrate, and this was not said by the prosecution to be untrue, that Mrs Lau attacked Ms Lam and caused her hand to bleed. I am told today that the injury was caused by a bite. On her way home, the appellant's wife encountered her husband, the appellant, and told him what had happened. So off they went to Mrs Lau's flat on the estate. Mrs Lau refused them entry and the appellant, no doubt in a foul temper, kicked the door and forced his way into the premises. The damage to the door was part of the damage referred to in the first charge. Once inside, the wife slapped Mrs Lau's face, and they shouted at or abused each other. Mrs Lau wanted to call the police, but the appellant broke the telephone cord and flung the telephone to the ground. That is the second part of the criminal damage charge. Ms Lau then called for help whereupon the appellant punched Ms Lau twice in the region of her waist. That accounts for the assault charge. The actual bodily harm to Madam Lau was, I am told today by Mr Veltro for the Crown, an injury to Madam Lau's lip caused by the first blow struck by the wife. Then the appellant demanded $1,000 from Ms Lau as "medicine fee", by which I understand that he was demanding compensation for the injury occasioned to his wife. And he added that if that was not forthcoming he would strike her further. That is the basis of the blackmail charge. Mrs Lau said that they had better waited for her own husband to return home. He did, and the appellant then repeated the threat that if $1,000 was not forthcoming, he and his wife would be assaulted. So off they went to an ATM machine where $1,000 was drawn and handed to the appellant and his wife. That is the basis of the theft charge.

6. The matter was then reported to the police, and the appellant and his wife were arrested and later charged. The wife, who is not before me today, was charged jointly with her husband in respect of the assault and theft. For those offences, she was sentenced to one month's imprisonment on each charge, to run concurrently, but suspended for 18 months.

7. In his reasons for sentence, the magistrate emphasised that these were very serious offences in which the victims were not safe in their own home. He said that much heavier sentences would have been imposed, had there not been a guilty plea and had not the appellant had a clear record. The sentence in respect of the wife was suspended because the magistrate recognised that one of the parents was required to attend to their two children who are aged 10 years and 8 years. He was of the view that nothing other than a custodial sentence was appropriate in the appellant's case, by which in context I take him to mean that nothing short of an effective rather than a suspended sentence was appropriate.

8. This is a difficult case. On the one hand, the behaviour of the appellant and his wife was outrageous. Even if there had been an earlier incident which left the wife injured and aggrieved, it is simply unacceptable to force oneself into another's home, and assault an occupant and threaten her. On the other hand, there is every indication that the behaviour of the appellant and of his wife was wholly out of character. The appellant is aged 40 years, he has never before committed a criminal offence. He is a transportation worker earning about $10,000 a month. His wife too has no criminal record. She is aged 38 years and at the material time earned about $3,000 a month, although I am told now, by Miss Chan, that she is not working.

9. It cannot be said that imprisonment was inappropriate in this case. To invade the privacy of another's home, indeed to do so with force, and then to strike a woman in her home and threaten her is a serious matter in itself, the more so, when she has no-one there to protect her. I think that in the circumstances the magistrate was right to impose a custodial term. But the question which remains is whether the term was excessive and whether there were factors which ought to have moved him to suspend the operation of the sentence.

10. The magistrate has not himself provided any indication of the starting point which he has used for any of the sentences which he has imposed. That is not determinative in any way of this appeal. It would have been helpful had he given that indication, but the fact that he has not done so does not somehow turn an appropriate sentence into an inappropriate one. However, the term of six months' imprisonment for the blackmail offence was imposed after a plea of guilty, and on a person of middle age with a clear record. If due credit was given by the magistrate for those significant mitigating factors, the magistrate must have thought that a sentence of at least nine months' imprisonment was an appropriate starting point.

11. In the sentences which the magistrate has imposed, he has drawn a strong distinction between the blackmail and assault offences. I am not sure that in the particular circumstances of this case that is justified. No complaint can be made about the length of the terms of imprisonment for the assault, criminal damage and theft charges. But in my judgment, the starting point of nine months or more for the offence in this case of demanding money with menaces was in the particular circumstances of this case too high. That the conduct was seriously amiss is reflected by the imposition of a custodial sentence, and so one is not to minimize the serious view the courts will take of any demand accompanied by menaces, especially where the menace is a threat of an assault. The setting, however, in this case was a dispute somewhat in the heat of the moment, very shortly after an incident where one of the parties had been injured by the other, and the incident itself in the home of Madam Lau was in the nature of an unpleasant flare up between neighbours when one party felt, rightly or wrongly, entitled to compensation. This was of course not the way to go about things. But the six months' sentence after a plea of guilty for a person aged 40, of previous good character was too high. At most, this warranted a six months starting point, and in my judgment, the term for the blackmail offence should be reduced to three months, for the reasons which I have given.

12. Again, without seeking for one moment to minimize the nastiness of the appellant's behaviour, there are in my judgment cogent factors which justify a suspension of the prison terms. They are the facts that these offences were entirely out of character, committed by a man aged 40 with no previous conviction, committed if not in the very heat of battle as it were, then whilst still fired by great anger caused by a very recent incident. And it is apparent to me that this was or ought to be treated as a single course of conduct. It is also most unlikely that the appellant will behave in this way again. I note too that the appellant has spent three weeks in custody. These are features which, when taken together, justify the suspension of the terms of imprisonment. Accordingly, the sentence which I shall substitute are as follows :

(1) For the offence of criminal damage, there will be a term of one month's imprisonment.

(2) For the assault occasioning actual bodily harm, there will be a term of one month's imprisonment.

(3) For the blackmail offence, there will be a term of three months' imprisonment.

(4) For the theft offence, there will be a term of one month's imprisonment.

All those terms are to run concurrently, and all those terms are suspended for a period of 18 months. The order for compensation of $2,000 will stand.