HKSAR v. XIE CHUN MEI

CACC 285/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 285 OF 2003

(ON APPEAL FROM DCCC 155 OF 2003)

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J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

1. The applicant, Xie Chun Mei appeared before Judge Whaley in the District Court on an indictment consisting of the 1st and 4th charges of blackmail, the 2nd and 5th charges of theft, and the 3rd and 6th charges of breach of condition of stay.

2. The applicant pleaded guilty to the charges of theft and breach of condition of stay. She was also convicted after trial on the two charges of blackmail.

3. The applicant was sentenced to one year's imprisonment on each of the charges of theft, 15 months' imprisonment on each of the charges of breach of condition of stay and 52.5 months' imprisonment on each of the charges of blackmail. With the exception of 6 months' sentence on the 3rd and 6th charges, all the sentences are to run concurrently. The total sentence is one of 58.5 months imprisonment.

4. The applicant seeks leave to appeal against sentence.

5. Mr. Wong, on behalf of the applicant raises two grounds of appeal, namely (1) the judge was wrong in adopting a sentence of 15 months' imprisonment for the 3rd and 6th charges when the applicant was in Hong Kong legally, and (2) the total sentence of 58.5 months' imprisonment is manifestly excessive.

6. The applicant was a 20-year-old woman from the Mainland on a two-way permit and was not allowed to take up any employment, whether paid or unpaid.

7. Twice in December 2002, the applicant worked as a prostitute after her services were advertised as "massage services" in a local newspaper.

8. The 2 victims responded to the advertisement and sought the services of the applicant. Having provided her services for the victims at a fee, the applicant, together with another, blackmailed the victims. The victims were subjected to "a barrage of frightening demands and threats" with a view to extorting $6,000 from each of them.

9. The victims were so overwhelmed by the threat that they agreed to go to automatic teller machines to withdraw money from their accounts to meet the demands of the applicant.

10. In the course of the blackmail, the applicant also stole mobile phones and other properties from the victims.

11. The judge adopted a starting point of 3 1/2 years' imprisonment for each of the blackmail charges. He enhanced the sentence by 25% on the basis of the prevalence of blackmail cases with a similar modus operandi under s. 27(11) of the Organized and Serious Crimes Ordinance (OSCO) Cap. 455.

12. In imposing a sentence of 15 months' imprisonment for each of the two charges of breach of condition of stay, the judge made the following comments:

"For the two offences of breaching a condition of stay, the well established tariff sentence, as it is called, is 15 months' imprisonment after plea."

13. In The Queen v So Man-king and Others [1989] 1 HKLR 142, this Court, as a sentencing guideline, decided that for the offence of remaining in Hong Kong unlawfully and the related offences of unlawful possession and use of identity cards, a similar sentence of 15 months' imprisonment should be imposed for a plea of guilty.

14. Mr. Wong is right in his suggestion that the aforesaid guideline is meant primarily for offenders who illegally remain after entering Hong Kong illegally. There are authorities indicating that the sentence for the offence of breach of condition of stay by lawful visitors should be much less than the 15 months' imprisonment adopted by the judge .

15. Although the judge only ordered 6 months of the 15 months' imprisonment to run consecutively and the effective sentence for the offences of breach of condition of stay is only 6 months' imprisonment, the sentence is still excessive according to some of the authorities cited by Mr. Wong (see The Queen v Lam Mei-ying unreported, HCMA 803 of 1995 and HKSAR v Kau Hiu Mui unreported, HCMA 1149 of 2000).

16. Mr. Lee for the respondent emphasizes the seriousness of these offences when the applicant not only took up illegal employment in Hong Kong, but committed serious offences in the course of such employment.

17. However, the seriousness of the applicant's conduct has already been reflected by the sentence on the blackmail charges and the enhancement of the sentence under s. 27 of OSCO.

18. We are persuaded that the sentence on the 2 charges of breach of condition of stay should be 2 months' imprisonment each to run concurrently but consecutively to the sentences on the other charges. The total sentence should therefore be 54 1/2 months' imprisonment.

19. We grant leave to appeal against sentence and treat the application as the appeal proper.

20. The appeal against sentence is allowed to the extent indicated.