HKSAR v. CHAN WAI HANG

CAC C 119/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 2011

(ON APPEAL FROM HCCC NO. 239 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 10 March 2011, after a trial in the Court of First Instance before Line J and a jury, the applicant was convicted (by unanimous verdict) of the offence of conspiracy to blackmail.  His co-accused in the trial was convicted of the same offence.  The applicant and his co-accused were each sentenced to a term of 10 years’ imprisonment.  The applicant sought leave to appeal both conviction and sentence.

2.  Legal aid was granted to the applicant to advance his application for leave to appeal sentence but not conviction.

3.  Having heard submissions from the applicant (in respect of his application for leave to appeal conviction) and his counsel (in respect of his application for leave to appeal sentence), we dismissed both applications saying that we would give our reasons later.  We do so now.

The background facts

4.  In the late 1990s, a man by the name of Walter Kwok, one of the members of a Hong Kong family known to possess great affluence, was kidnapped by a criminal gang.  His kidnappers originally demanded a ransom of $1 billion but after negotiations reduced the demand to the sum of $600 million.  That sum was paid and Walter Kwok was released.  The kidnapping received substantial media coverage.

5.  It goes without saying that the kidnapping must have left the deepest emotional scars on the kidnap victim himself and on members of his family.

6.  More than 10 years later, the applicant and his co-accused were convicted of entering into a criminal scheme to profit from that earlier event.

7.  In or about September 2009, communications were commenced with Walter Kwok’s family, communications designed to remind the family of the earlier kidnapping and the trauma that it must have induced, communications designed also to remind the family of the fact that the original ransom demand of $1 billion had been compromised, being reduced by $400 million.

8.  Essential to the scheme was the assertion that the compromised figure of $400 million was still due and owing, the clear implication being that, unless this sum was paid, there would be a further kidnapping of Walter Kwok or some other member of the family.

9.  Three demand letters were sent to individual members of the Kwok family including Walter Kwok himself.  These were followed by a number of telephone demands.  The scheme was clearly planned to build pressure, doing so over a period of three months.

10.  The first letter sent to the family contained photographs designed to cause distress.  One of the photographs depicted a masked man with bombs strapped to his body.  The leader of the criminal gang that had kidnapped Walter Kwok was believed to have strapped bombs to his body in like fashion.

11.  Integral to the scheme was the requirement to place Walter Kwok and his family members under such fear at the prospect of having to live through an outrage similar to, or worse than, the original kidnapping that they would submit to any demand.  It would not be an exaggeration to say that the scheme was designed to terrorise Walter Kwok and his family.

12.  In furtherance of the scheme, in the course of a telephone call, a demand was made for a show of sincerity.  That show of sincerity was to be constituted by a payment of 20% of the $400 million outstanding: a sum of $80 million.

13.  The issue at trial was not whether Walter Kwok and his family members had been subjected to the blackmail threats but whether the applicant and his co-accused, together and/or with others, had conspired to perpetrate the scheme.

14.  It should be said that there was no evidence that the applicant or his co-accused were ever members of the original kidnap gang or in any way associated with the people who made up that gang.  It was however the prosecution case that, by creating the impression that there was such an association, the applicant and his co-accused were able to exploit the reputation for ruthless violence earned by the original gang.

The grounds of appeal in respect of conviction

15.  In his notice of appeal dated 28 March 2011, the applicant advanced four grounds of appeal.

16.  First, it was said that the judge’s summing-up to the jury placed undue emphasis on the prosecution case while the defence case was mentioned only in the briefest of terms.

17.  There is nothing to this assertion.  Given that the prosecution was obliged to call numerous witnesses in order to prove its case while the applicant, as was his right, elected not to testify nor to call witnesses, it is unsurprising that the judge spent a greater period of time assisting the jury with a consideration of the prosecution case.  The assistance looked not only to the strengths of the prosecution case but to matters that emerged during the course of evidence pointing to its weaknesses.  Read as a whole, the summing-up in our view is a model of clarity and of fairness.

18.  Second, it was said that the trial, which apparently had been originally listed for 20 days but was completed within five days, acted to the applicant’s prejudice in that it was unduly ‘perfunctory’.

19.  Again, there is nothing to this assertion.  The applicant was represented by counsel.  No suggestion has been made that counsel acted incompetently or in any way failed in the discharge of his professional duty.  The fact is that a great many matters of evidence were agreed between counsel, that is, between prosecuting counsel and both defence counsel, and placed before the jury as ‘admitted facts’.  In the result, of course, the length of the trial was materially reduced.

20.  Third, it was said that in his summing-up the judge “repeatedly stated that only a majority vote would be acceptable”, a direction that, in the applicant’s submission, placed undue pressure on the jury, this being to the prejudice of the applicant.

21.  This is a misreading of the summing-up.  The judge did not ‘repeatedly’ direct the jury that only a majority vote would be acceptable.  The judge gave a single, standard direction in the following terms:

“It is desirable that you should all be agreed on your verdicts and I urge you to reach unanimous verdicts, but if you cannot all agree then the law permits me to accept a verdict of 5 to 1. There must be at least five of you who are agreed. A division of 4 to 2 or 3 to 3, either way, is not a verdict. Should that position arise, I will give you further directions…”

22.  Fourth, it was said that the applicant (and his co-accused) were denied a fair trial because of the extensive media attention given to the trial and to the fact that much of what was reported related back to the kidnapping of Walter Kwok by a notorious criminal gang.  Again, there was nothing in this ground.

23.  The assertion of prejudicial publicity was not supported by reference to any particular newspaper reports.  In the result, it was simply not possible to judge the nature and degree of any alleged prejudice.

24.  Clearly, however, the judge was aware that the trial was likely to engender a greater degree of publicity than normal and for that reason he gave a warning to the jury at the beginning of the trial that they were to ignore any reports in the media.  In addition, when giving his final directions to the jury, he said:

“You must decide the case only on the evidence that you have seen and heard. That is the oral testimony of the witnesses who appeared in front of you, the exhibits and he admitted facts. I repeat the warning I gave to you at the beginning of the trial to ignore any reports in the press or media that you may have seen reporting the trial or any background to the trial.”

25.  It is also to be noted that at no time during the course of the trial was the issue of prejudicial publicity raised by counsel with the judge.  No application to stay proceedings was made based on any supposedly prejudicial publicity.

Sentencing: looking to the judge’s reasons

26.  In passing sentence on both the applicant and his co-accused, Line J commenced by saying:

“It has been said that blackmail is one of the ugliest and most vicious of crimes. The judge who said that also made the observation that the courts have always imposed severe sentences for it and, he said, because of that, it was seldom one saw a person convicted for a second time of blackmail. Deterrence is perhaps the most important part of the sentence in such cases.”

27.  The judge was here citing the words of Lord Lane CJ in R v Hadjou (1989) 11 Cr App R (S), it being in the circumstances of the present case an entirely apt citation:

“Blackmail is indeed one of the most vicious crimes in the calendar of criminal offences and it is perhaps due to the fact that the courts always impose severe sentences that one so seldom, if ever, finds a person convicted for the second time of blackmail.

It is submitted to us… that although a custodial sentence was necessary, the gravity of this offence could be marked by a shorter sentence.  We do not think it could.  Deterrence is perhaps the most important part of the sentence in a case such as this only just after the question of punishment.”

28.  In assessing the gravity of the offence in the present case and determining that it required a sentence of 10 years’ imprisonment, Line J observed:

“Because of the huge amount you demanded and because of the nature of the menace that was made accompanying the demand, this becomes a very bad case of blackmail.”

The submission that the sentence was manifestly excessive

29.  When convicted upon an indictment, the maximum sentence for both blackmail and conspiracy to blackmail is 14 years: see s. 23(3) of the Theft Ordinance, Cap 210, and s. 159(C) of the Crimes Ordinance, Cap 200.

30.  On behalf of the applicant, Mr H Y Wong submitted that, while the offence was clearly a most serious one meriting a lengthy term of imprisonment, when compared with sentences imposed upon other defendants for similar offences, the sentence of 10 years was manifestly excessive.

31.  The difficulty with this submission based on a comparison of cases is that the circumstances in which offences of conspiracy to blackmail are committed are simply too diffuse, too widespread and variable to permit of any sort of sentencing guideline.  Accordingly, only limited assistance is to be gained from a review of other cases which, while similar in certain respects, are invariably very different in others.

32.  One of the cases referred to us which in certain respects is similar to the present case is that of R v Wong Yeu Kai (unreported) CACC 40/1989.  In that case, the applicant had sent letters to a very wealthy Hong Kong businessman, threatening his life and the life of his son if a sum of $3.5 million was not paid to him.  On an application for leave to appeal sentence, this Court held that the starting point of seven years’ imprisonment adopted by the judge at first instance fell within the acceptable range of sentences for offences of this gravity.

33.  In our view, the following factors made the present case materially more serious and thereby deserving of a higher sentence.  First, the blackmail scheme in the present case was well-planned and pursued over a period of months, the pressure being built by a series of letters (one of them containing distressing photographs) and telephone calls.  Second, the amount of money demanded in the present case was far greater, the ultimate sum the applicant and his co-accused hoped to gain being a sum of $400 million.  Third, the scheme in the present case was parasitical in the sense that it was designed to feed off the fear and trauma of an earlier event, a kidnapping by a criminal gang known for their ruthlessness and brutality; undoubtedly an event which Walter Kwok and his family would do anything to avoid being subjected to again.

34.  There is no doubt that the sentence imposed in the present case was stern.  In our view, however, bearing in mind the well-settled principle that deterrence is to be a principal component of any sentence passed in cases of this kind, this was a case deserving of a stern sentence.  We did not see that it was excessive.

The second ground of appeal: the failure to grant a stated discount for the expeditious conduct of the trial by the defence

35.  In passing sentence, the judge said the following:

“There is little capable of mitigating this crime. The trial has been conducted expeditiously and sensibly, and I give what weight I can to that in my sentence. But the allowance is one more of attitude than calculation, and it has to be modest given the circumstances and given the fact that most of the matters which you did admit were not really amenable to any sensible challenge.”

36.  On behalf of the applicant, it was submitted that a stated discount should have been given.  The trial was apparently listed for 20 days but because so much of the evidence was agreed it ran for just five days.  In light of this, it was suggested that a discount of around 20% would have been reasonable.

37.  There are of course limited occasions when, even though a plea of not guilty has been entered, a discount in sentence is warranted by the manner in which the trial proceedings have been conducted by the defence.  For example, some form of discount may be granted in cases alleging the sexual abuse of children and other vulnerable persons when they have been spared the torment of having to testify.

38.  One of the authorities cited by Mr Wong was that of HKSAR v Mak Shing (unreported) CACC 322/2001, a case in which a discount was given by this Court in recognition of the fact that the defence had been confined to legal argument on the single discrete issue of whether the applicant was entitled to avail himself of a saving provision in the relevant Ordinance, all other matters in support of the prosecution case being conceded. 

39.  However, the mere fact that a material amount of the prosecution evidence has been agreed will not of itself, without more, warrant a discount when, in the opinion of the trial judge – as in the present case – that evidence, or the great majority of it, was not in any event amenable to any sensible challenge.

40.  Whatever may have been the case in the past, efficient case management is today an obligation placed on both counsel for the prosecution and the defence.  The fact therefore that defence counsel, while at all times safeguarding the interests of his client, is able to enter into a sensible arrangement with prosecuting counsel as to the disposition of non-contentious evidence is not to be seen, without more, as a basis for being granted a discount in sentence.

41.  On behalf of the applicant, Mr Wong submitted that in the present case, although he did not spell out the quantum of the discount, the judge must have intended, by the manner of his reasoning, to incorporate a specific discount in recognition of the fact that the defence had been conducted in an expeditious and sensible manner.

42.  We do not agree.  In our view, that is a misreading of the judge’s reasoning set out above: para 35.

43.  In calculating sentence, a judge cannot be expected to calculate the weight to be given to every mitigating factor no matter how slight it may be.  There may be mitigating factors which, taken individually, do not have sufficient weight to dictate a computed discount but which nevertheless cannot be ignored and which therefore must play some role in influencing the final decision.  In the present case, in the view of the judge, the fact that the applicant had played a role in ensuring the sensible conduct of the trial was such a factor: one not to be ignored but too slight to be anything other than an influencing factor in determining the appropriate sentence.

44.  The judge had the advantage of presiding over the trial proceedings.  He was in the best position to judge whether the manner in which the defence was conducted was such as to be deserving of recognition and, if so, to what extent.  Nothing was put before us to make us question his decision in that regard.