HKSAR v. CHENG HON KEUNG

HCMA198/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.198 OF 2004

(ON APPEAL FROM TWCC 404 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on 5 February 2004 of one charge of criminal intimidation, contrary to section 24(a)(ii) of the Crimes Ordinance, Cap.200. He was acquitted of a charge of blackmail in the same trial and was sentenced to two years' imprisonment. He now appeals that sentence.

2. The sentence which the magistrate could have imposed in respect of criminal intimidation was set out in section 27 of the Crimes Ordinance :

"Any person who commits an offence against section 24 or 25 shall be liable on summary conviction to a fine of $2000 and to imprisonment for 2 years and shall be liable on conviction upon indictment to imprisonment for 5 years."

3. This matter was at the election of the Department of Justice brought in the magistrates' court. The magistrate was confined to a maximum sentence of two years which was the sentence he imposed.

4. The perfected ground of appeal is that the learned magistrate erred in imposing a sentence which was manifestly excessive in all the circumstances of the case and/or was wrong in principle.

5. Mr Pang, for the appellant had taken me through a number of cases of varying facts which have attracted varying penalties. What can be derived from these cases is that there is no tariff for criminal intimidation and each case must rely very much on its own facts.

6. The facts which the magistrate found in this case were that the appellant demanded that the victim accept $100,000 as settlement for a claim that he had made against the neighbouring stallholder for injuries arising out of a chopping perpetrated by that neighbour. The victim had been awarded a judgment of $1,180,000 by the court in a civil action and the appellant threatened the victim, saying words to the effect that he would give him $100,000 to "buy him out" and that even if the victim were to go back to the Mainland he could be located. A further threat was made two days later with the "offer" being raised to $200,000 accompanied by a threat. The appellant saying that he knew where the victim lived.

7. It is quite clear, as the magistrate found, that these were threats of injury to the victim if he was not prepared to accept a far lower figure than the judgment which had been awarded to him and the threat to prevent him taking action to enforce that judgment. This is a serious act of intimidation inasmuch as it offers threats of violence and injury and is aimed at preventing the victim from taking the action which he is entitled to take to enforce his judgment. It strikes to some extent to the heart of our system of civil justice.

8. It does not, in my view, however, warrant a sentence which is the maximum that could be passed on the charge that was brought. There was no damage done to the premises. It was not accompanied by an assault. There was no weapon displayed. There were no party of men brought to back up the threat. All of these are factors which appeared in many of the cases which have been brought in the magistrates' court and which have attracted a lower sentence than the maximum.

9. In the circumstances, the sentence of two years' imprisonment was manifestly excessive, and this appeal is allowed to the extent that a sentence of nine months' imprisonment is imposed in lieu of that sentence.