HKSAR v. CHIANG TAI MEI

CACC 288/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 288 OF 2001

(ON APPEAL FROM DCCC 349 OF 2001)

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REASONS FOR JUDGMENT

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Hon Woo JA (giving the reasons for judgment of the Court):

Introduction

1. At the conclusion of the hearing on 18 July 2002, we granted the application and treating the application as the appeal proper, we allowed the appeal to the extent that the total sentence was reduced to 5 years' imprisonment. The reasons appear below.

2. The defendant faced three charges in the District Court, namely, criminal intimidation, assault occasioning actual bodily harm and criminal damage. The case was heard before District Judge Line. On 20 July 2001, the Judge convicted the defendant of the three charges and passed the following sentences:

(a) For Charge 1, criminal intimidation, five years' imprisonment;

(b) for Charge 2, assault occasioning actual bodily harm, two years' imprisonment, to run concurrently with the sentence for Charge 1;

(c) for Charge 3, criminal damage, two years' imprisonment, one year of which to run concurrently with the sentence for Charge 1, and the remaining one year to run consecutively to the sentence for Charge 1.

The total sentence that was imposed came to six years' imprisonment.

3. Against the sentence, the defendant applied to this Court for leave to appeal.

The facts

4. The three offences all occurred on 23 August 2000. According to the prosecution evidence accepted by the Judge, the following events took place. The victim is a merchant surnamed Chan ("Chan"). There was a dispute between Chan and a contractor surnamed Ho ("Ho") over the payment under a contract. In 1998, Ho brought an action in the High Court to claim over $5 million from Chan. Negotiations to settle the case followed, but failed.

5. In the afternoon of 23 August 2000, 10 odd men, including the defendant, arrived at Chan's office. They subdued the several members of staff there and tore the telephone wires. They demanded Chan to repay Ho. The defendant and at least two other men went into Chan's own room. One of the men, who was not the defendant, uttered threatening words towards Chan and took out a pistol-like object (referred to as the pistol later), and pressed the barrel of the pistol hard on the lower portion of Chan's neck. That left a mark (which the Judge described as an angry mark) on that portion of Chan's body. When the pistol was being pressed on Chan's neck, the man holding the pistol also pulled the trigger once, emanating a sound that the pistol was in operation, but no bullet was discharged.

6. Chan testified to say that he had experience in guns. He thought that pistol was real and ought to be real. But Chan still refused to pay as demanded and he maintained that he had fully paid Ho.

7. When the man was threatening Chan with the pistol, the defendant struck Chan several times across the table. The defendant then "swept" the things on top of Chan's table onto the floor. Later, the man with the pistol gave order to the other men to press for the lift in order to leave. Before they left, the man told the other men to break the things in the office. The other men including the defendant acted accordingly and caused damage to the things in the office, including a piece of glass, a facsimile machine, a photocopier, and a computer. Eventually the defendant told the others to leave the office.

Grounds of appeal

8. Mr Allan, for the defendant, raised a number of grounds to support his contention that the sentence imposed by the judge was manifestly excessive. In Ground 1, he contended that the judge failed to give any or any proper weight to the following factors, namely, that there was little or no evidence that the defendant was the master-mind of the group of ten odd men, that the person who took out the pistol to threaten the victim appeared on the evidence to play a leading role in the attack, and that there was little or no evidence to show that the defendant knew that a pistol would be used.

9. In passing the sentence, the Judge did say to the defendant:

"You were brought in because you were someone willing to direct violence, who was capable of summoning a group of 10 or so men to do that violence, and who could have a pistol produced."

"To lead a team of criminals, as you did, in broad daylight into commercial premises, ..."

It seems to this Court that there is some merit in this ground of appeal, because there was no evidence that the defendant, as opposed the person who produced the pistol, was the leader of the group. While it is true that the defendant must on the basis of joint enterprise be responsible for what he and the other men were doing at the time, there was no direct evidence that he knew that one of the group had a pistol and that the pistol would be produced to threaten the victim.

10. By Ground 2, Mr Allan contended that the Judge had placed too much weight on deterrence and in particular the prevalence of the offence. On this subject, the Judge said:

"The maximum sentence for your criminal intimidation is 5 years' imprisonment. It is not often that a court goes to the maximum sentence of imprisonment, but the facts of this case call for it and accordingly I pass that sentence. Any greater aggravation than exists currently would have resulted in further and graver offences. I make clear that sentence has an element of deterrence in it. If this sort of behaviour was not so common here, I would have passed a sentence of 4 years."

11. Mr Allan referred us to Moore v Materna (1996) 136 FLR 142, where Martin CJ in the Supreme Court of the Northern Territory, Australia decided that the magistrate who sentenced the appellant had erred in the light of the circumstances of that case in taking prevalence of the crime into consideration. It is only necessary to refer to the headnote of the report which correctly summarises the effect of the judgment, as follows:

'The prevalence of a particular offence in a particular locality at the time of the commission of the offence deserves to be considered and plays a part in the sentencing process. However, being a sentence upon the need for general deterrence, where prevalence in the commission of the offence is not demonstrated, is an error."

12. It can be said that when the Judge used the word "common" in the passage cited in para 10 above, he was using it in relation to criminal intimidation, not necessarily criminal intimidation with the use of a gun. But in the same passage, the Judge was referring to "the facts of this case" and continued to say that the sort of behaviour was "common" here. We are of the view that more probable than not he used the word in respect of criminal intimidation with the use of a gun. While we recognise that criminal intimidation perpetrated on debtors by debt collectors is quite common and prevalent in Hong Kong, in respect of which the Judge properly applied and highlighted the deterrence element in sentencing, such behaviour with the use of guns is fortunately not so common in Hong Kong. In the circumstances, we also consider that Ground 2 has some substance.

13. On whether the Judge was correct in applying the maximum sentence of five years' imprisonment that is allowed by sections 24(a)(i) and 27 of the Crimes Ordinance, Cap 200, apart from the fact that there was no material before him to come to the view that criminal intimidation with the use of a gun is prevalent in Hong Kong, the present case might not be the gravest of its kind for the maximum sentence to have been imposed. We hasten to add, however, that we echo the view taken by the Judge that the facts of this case reveal a very serious case of criminal intimidation. While nothing was discharged by the pistol, the man holding it did pull the trigger and the sound of the pistol operating was heard by the victim. This must have been an extremely terrifying experience for the victim. Nonetheless, we have some reservation whether it is a case that properly calls for the maximum penalty.

14. Ground 3 complains that the Judge failed to give any credit or sufficient discount at all to the fact that the defendant had been free from crime for about 22 years. Mr Allan refers us to R v Lawrence (1982) 4 Cr App R (S) 69 at p 70, in which the Lord Chief Justice described the appellant, a single man aged 23 years with criminal records until 1976 in the following manner:

"... he is a man who really has all the marks of someone who, at this stage in his life, is capable of settling down and remaining a good and useful member of the community."

15. We are of the view that the citation does not assist the defendant in the circumstances of the present case. The Judge said:

"There is nothing in your personal circumstances to mitigate these crimes, save perhaps that you have not been convicted of crime now for a long time. You are a man who is 53 years of age, experienced enough to know the stakes you played for."

There is a huge difference between the crime committed by Lawrence, which was taking a conveyance without authority, and the very serious crimes committed by the defendant in the present case. Lawrence was a young man but the present defendant has attained the mature age of 53 years and, as the Judge said, he should be experienced enough to know the stakes for which he played in the commission of the offences in this case.

16. Ground 4 contends that all the three offences of which the defendant had been found guilty had only one common aim and they all arose of the same set of facts. Therefore, it was submitted that the "one-transaction rule" came into play. It was therefore argued that the Judge was wrong to order that one year of the two-year sentence of imprisonment on Charge 3 be served consecutively to the sentence for Charge 1.

17. Mr Allan reminded us of Lui Shu Tong v R [1961] HKLR 129, where Hogan CJ stated at pp 136-137:

"We are of the opinion that the best course for a Court to adopt in passing sentences is to decide firstly what, in all the circumstances, including both the background of the offence and the offender, is an appropriate sentence for each offence. Then, the Court should consider whether any particular group of offences arises out of the same set of facts, so that it can be said that the whole group of offences are inter-connected with one another. Normally, it is more appropriate that the sentences on the various charges in such a group should be ordered to run concurrently with one another. If, on the other hand, each offence in the indictment is a distinct and separate offence unconnected with the other offences, it is usually more satisfactory to invoke the provisions of section 71 of the Criminal Procedure Ordinance and to order that such sentences should run consecutively to one another. ... Finally, it is appropriate that, a court should, when sentencing, have regard to the overall effect of the sentences imposed by it in respect of a number of offences and satisfy itself that the aggregate punishment is, in the circumstances, adequate but not excessive."

18. In passing sentence, the Judge did take into account that the assault occasioning actual bodily harm offence (Charge 2) was part and parcel of the criminal intimidation in Charge 1. He therefore ordered that the sentence that he imposed for Charge 2 was to run concurrently with the sentence on Charge 1. In respect of Charge 3, the criminal damage offence, the Judge said:

"The damage may not have cost a lot to repair, but again it is the circumstances in which it was done that calls for a sentence of 2 years' imprisonment. The use of the pistol and the criminal intimidation were over when the order was given to sweep the office. You commenced the damage yourself. And whilst the criminal intimidation and the criminal damage shared a common aim, the one does not eclipse the other entirely. The damage was something extra. Bearing in mind the overlap and with an eye to totality, I have ordered that 1 year of the sentence be concurrent to the sentence on Charge 1 and 1 year be consecutive."

19. We consider that the Judge was fully entitled in the circumstances of this case to order part of the sentence for Charge 3 to run consecutively. However, we are of the opinion that in view of the scope of the damage caused by the offence in Charge 3, which was viewed by the Judge, quite correctly, to be separate from the facts relating to Charge 1, a sentence of two years' imprisonment for Charge 3 alone is manifestly excessive.

Conclusion

20. By reason of the matters we have stated above, we feel that the appropriate sentence for Charge 1 is one of four and a half years' imprisonment, which is below but not too far below the maximum sentence imposed by the Judge. In respect of Charge 2, the sentence of two years' imprisonment to run concurrently with the sentence on Charge 1 as imposed by the Judge is correct and we do not propose to interfere with that. Regarding Charge 3, we consider that the appropriate sentence is one year's imprisonment. Out of that, half a year should run concurrently with the sentence on Charge 1 and the remaining half year should run consecutively to it. We therefore granted leave to appeal. Treating the application as the appeal proper, we set aside the sentences on Charge 1 and Charge 3 and substitute therefor the sentences we propose above accordingly. The defendant will therefore serve a total term of five years' imprisonment. To this limited extent, the appeal has succeeded.