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CACC000622/1985
Sentence - evidence showing commission of other similar offences relevant to show system and negative a defence. Such evidence may be considered in relation to sentence if (a) The other offences are 'taken into consideration' at the specific request of the defendant or (b) The Crown puts forward one charge as a sample count and the defendant is advised of the other counts on which evidence will be given or (c) The evidence of the other offences is directly relevant to showing the gravity of the offence charged. The discretion to consider the evidence under category (c) should be used with caution particularly when defendant is not represented.
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
Magistracy Criminal Appeal No. 622 of 1985
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BETWEEN
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THE QUEEN |
Respondent |
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and
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LAM CHUN YAU |
Appellant |
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Coram: Hon. Penlington, J. in Court
Date of hearing: 6th September 1985
Date of delivery of judgment: 6th September 1985
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JUDGMENT
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The charges
1. The appellant was convicted after trial on 4 charges of blackmail and 3 charges of theft. Apart from the last charge of blackmail, these charges go in pairs. The first charge is of making a demand with menaces of $1,000 on the 28th May 1985 and the second is obtaining that $1,000 when the demand was met later that day His third charge is of demanding another $1,000 on the 30th of May and again of receiving that $1,000 the same day. The fifth charge is of demanding $1,600 on the 3rd of June and the sixth charge of receiving $1,600 as a result of that demand, again on the 3rd of June. The seventh charge is that on the 4th of June another demand, this time for $2,000, was made but on this occasion the victim complained to the Police, an ambush was set up and the appellant was apprehended when he approached the victim.
2. This was originally an appeal against both conviction and sentence but at the hearing leave was granted to abandon the appeal against conviction. There was ample evidence to support the conviction, the Magistrate had clearly carefully considered the evidence and his finding of fact could in no way be faulted.
Grounds of appeal against sentence
3. The Magistrate imposed a sentence of two years imprisonment on the blackmail charges, all to be concurrent. He then imposed a sentence of one year in respect of the theft charges to be concurrent with each other but consecutive to the blackmail sentences thus giving a total of three years imprisonment.
4. It is clear that the Magistrate was entitled to impose the sentences that he did. Section 92 of the Magistrates Ordinance provides that when a Magistrate deals with an indictable offence summarily he may sentence the accused to imprisonment for two years. Section 57 provides that where there are two or more terms of imprisonment imposed, he may order the sentences to be consecutive, provided that the total amount does not exceed three years.
5. Mr. Macrae in his very careful and forcefully presented arguments attacks the sentences imposed as being firstly wrong in principle and secondly excessive having in mind the facts of this particular case.
Wrong in principle
6. It is argued that the sentences are wrong in principle on three grounds -
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(a)
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Sentences should not be made consecutive for charges of blackmail and theft where one follows the other. Where a demand is made for money and the money is in fact paid over as a result of that demand, this clearly is one transaction and there should not be consecutive sentences for each part of it even though legally they constituted separate offences. Counsel assures me that he has found no instances of consecutive sentences being passed in Hong Kong under those circumstances. This, he says, is clearly one transaction. The demand was made on the same day as the money was received, there are no particular circumstances relating to the blackmail and the receipt of the money which called for the normal practice not being followed. It has been held, and in my view quite rightly, that where there is a robbery, which necessarily involves a threat or use of force, but that in addition there is a serious assault on the victim, that there should be two separate charges and that any sentences passed should be consecutive, subject to the "totality" rule. See A. G. v. Chan Kin-chung & Anor. (1980) HKLR 642 and the dicta of Roberts, C. J. at 645. It seems to me to add little to the general overall criminality of the offence of blackmail that having made the demand with intent that the victim should pay over some money, that demand is successful and the money is in fact paid over. This I think is particularly so when the demand and the payment are close together. Here, on each occasion, payment was made on the same day as the demand.
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The general principles are well set out in pages 53 to 56 of Thomas on Principles of Sentencing, 2nd Edition and do not need to repeat what is there said. I think clearly the instances of blackmail and theft here each formed one transaction and sentences should have been concurrent. Mr. Browne for the Crown concedes that he cannot argue to the contrary on that particular point.
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(b)
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The magistrate allowed prejudicial evidence to be admitted relating to previous offences and took that into account on sentencing.
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The appellant was charged with 7 offences, all of which took place between the 28th of May 1985 and the 4th of June 1985. Evidence was also however given by the victim relating to events which took place in 1983. He said that the appellant had come up to him and accused him of having asked someone to beat him up. The victim denied this but the appellant said that if he did not give him $1,300 he would beat him up and others would help him. Some money was paid and following further threats the total amount of $1,300 was paid. Again later that year, another demand was made for $500 with the same menaces. Again it was paid. The victim said because of these threats he had moved his address. He then came on to give the evidence relating to the events in May and June of 1985 which were the subject of the charges.
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The appellant was not represented before the Magistrate and there was therefore no objection or argument as to the admissibility of the evidence as to events in 1983. It seems to me that there was little doubt that the evidence relating to the earlier threats and payments would have been admissible in order to rebut a possible defence, and one which was in fact put forward by the appellant, i.e. that the money had been paid over perfectly voluntarily by the victim by way of a loan or a series of loans to the appellant to repay mah-jong debts. Evidence that on previous occasions threats had been made and that as a result the victim had moved his address would have been relevant to rebut such a defence. The evidence was certainly strikingly similar to that called on the charges laid. Equally, however, if the accused had been represented, no doubt-the strongest objection would have been taken to the admissibility of such evidence and as he was not so represented, the Magistrate should have address his mind to this point and considered it. There is no appeal against conviction but the question is, however, whether it was evidence which the Magistrate should have taken into account in arriving at sentence. Mr. Macrae argues that it was not and relies on the decision of the Court of Appeal in Huchison v. The Queen (1972) 56 C. A. R. 307. There the appellant pleaded guilty to a single act of incest. The victim had however made a statement alleging continuing acts of intercourse and the judge heard evidence on that from both the appellant and the victim. Following that he said he was satisfied that continued intercourse had taken place and passed a sentence on that basis. It was held that this was wrong and that if the judge felt that he should take into account the other acts for the purpose of arriving at the proper sentence, then the prosecution should have amended the indictment and the whole matter could then have been dealt with.
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In Lane v. Auckland City Council (1975) 1 N. Z. L. R. 353 the appellant was charged with driving a motor vehicle with an excess of alcohol in his blood-stream. He was also charged with driving in manner which might be dangerous. He pleaded guilty to the first charge and the prosecution offered no evidence on the latter, which was dismissed. In imposing a sentence on the excess alcohol charge the magistrate took into account the circumstances of the appellant's driving before he was stopped. At page 355 Roper, J. said -
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"It is a well established principle that the Court may not increase a sentence for a particular offence merely because of the commission by the defendant of other offences for which he has not been charged or has gained an acquittal but that is not the situation we have had to consider. It is not permissible to increase a sentence merely because the accused may have committed other offences for which he was not charged. On the other hand it is perfectly permissible to take into account facts and circumstances (which fortuitously of themselves might constitute separate offences) in order to determine the gravity of an appropriate punishment for the offence with which he is charged and convicted. This is a driving offence. The whole purpose of the blood alcohol legislation is to prevent people driving when alcohol has made them unfit to do so. We are clearly of the opinion that any circumstances which might fairly indicate the effect on a defendant of the alcohol he has consumed must be relevant in determining the gravity of the offence and of course such circumstances may be favourable or unfavourable to a defendant. The appeal is dismissed."
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It is to be noted that the Court of Appeal there seems to be saying that consideration may be taken of the other offence even though that charge had been dismissed. In Huchison at page 309 Phillimore, L. J. said:
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"Altogether this is quite unsatisfactory. Of course there are cases where the prosecution puts forward a count as a sample count and in those cases it is well understood that if that course is taken and the defence are notified, a judge is entitled to deal with the whole matter on the basis that the offence in fact was repeated more than once or that there were other similar incidents. But that is not this case: this was put forward as a single offence and Mr. Hammerton says that in those circumstances the learned judge ought, if he thought he could not do justice by adopting the appellant's admission of one incident and one incident only, either have allowed the prosecution to prefer a voluntary bill charging the other incidents as stated by the daughter or to have allowed the indictment to be amended and then to deal with the whole matter at a later date. The court thinks that this contention is right.
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The whole of that passage was cited and approved by Lane L. J. in R. v Mills 68 C. A. R. 154 clearly where sample charges are put forward and the defence notified of the other offences, of which evidence will be given, they may be taken into account in sentencing as forming part of the background of the offence charged.
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Mr. Macrae further complains that in effect what the Magistrate has done is to take the previous offences "into account" although the appellant did not request that that be done and there is no suggestion that he wanted the slate wiped clean by following that course. Where offence are taken into consideration in relation to the sentence for other offences, the effect is that there should be a stiffening, of one of the other sentences, but not a sentence for those offences taken into consideration, see Lam Fuk Chung v. R. Criminal Appeal 448/78 per Huggins, J. A.
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Here the Crown in no way put forward a sample charge. They brought a charge for each offence committed in 1985. It is also true that here the appellant did not give any evidence either admitting or denying the earlier incidents and certainly could not have known anything about the allegations as to events in 1983 until the evidence was called.
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The whole question of the admissibility of similar fact evidence is difficult and has occupied the time of Courts of Appeal on many occasions since Herschell, L. C. 's classic exposition of the principles in Makin some 90 years ago. In my view evidence of other offences can be considered in relation to sentence if either:
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The accused is given a list and specifically asked that they be taken into consideration. (The procedure set out by Diplock, L. J. in Anderson v D. P. P. 67 C. A. R. 185 should be followed.)
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Where the Crown proceeds on a sample charge but the accused is fully aware that evidence of other offences will be called Mills v. R. but if the charge is put forward as a single offence no evidence should be received to show that in fact it was only one of a series of offences. (Huchison v. R.)
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Evidence of another offence is relevant to determine the gravity of the offence with which he is charged, i.e. that not only did his blood alcohol exceed the limit but also he was driving erratically. (Lane v. Auckland City Council)
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This last category clearly is the most difficult and, particularly where the accused is not represented, should be used only in rare cases as normally all the evidence relevant to the charge will be clearly admissible.
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Here the counts were not samples, the accused was not given notice of the previous alleged offences, nor did he ask for them to be taken into consideration. The magistrate took the view that because the appellant had caused the victim to move his home some 2 years before the present demands were made they were more serious. It is therefore I think going further than Lane v. Auckland City Council where there was evidence that not only did the defendant's blood alcohol exceed the limit but it also affected his driving ability at the time. I do not think the Court there would have allowed in evidence that on a previous occasion for which there was no charge the defendant was seen driving dangerously. The "background" evidence must be directly relevant to the gravity of the offence charged and here I think it was only marginal and bearing in mind that the appellant was not represented I consider that it should not have been considered in relation to sentence.
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(c)
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The third complaint which is made on a matter of principle is that the Magistrate did not obtain adequate information concerning the appellant before passing sentence. It was said at the hearing of this appeal that he did not even know his age or address. Whilst it is true that no such evidence was given, the defendant's age and address was stated in the information and I see no reason why the Magistrate should not have accepted that as being correct. There was certainly no suggestion at the hearing of the appeal that that information was not correct. That being so the Magistrate knew that the appellant was aged 30, he knew the type of area in which he lived, he was aware of the circumstances under which this offence had been committed, he was aware from the appellant's evidence that he worked as a massage palour attendant. He also was told by the appellant that he was married and his wife was in China. It seems to me that if the Magistrate had wanted further information he would have had to call for a Probation Officer's report. I do not think the circumstances of this case required that he do so. This was not a case of a young man committing an isolated offence. There was in my view no real alternative to a sentence of imprisonment and I am satisfied that the Magistrate did have adequate information before him on which to pass sentence. |
Excessive sentence
7. Turning now to the other aspect raised by Mr. Macrae, that of quantum, he argues that on the facts of this case as found by the Magistrate the sentences are manifestly excessive. He refers to Chan Tak v. The Queen Criminal Appeal No. 201/1979 where demand was made from the proprietor of a transport company for payment of $50 a day as protection money. Payments were made pursuant to that threat over a period of some 3 years. No report was made to the Police during that period. Huggins, J. A. said:
"It is true of course that only one threat was made but it was a continuing threat and the victim was fearful that his barges would be damaged if the payments were not made."
The Court allowed the appeal to the extent that a sentence of 5 years imprisonment was reduced to 3½ years imprisonment. In my view that case if anything indicates that the sentences passed here were or the light side and I entirely agree with the Magistrate that these charges should not have been brought in the Magistrates Court but in a higher jurisdiction. In my view Chan Tak v. The Queen is different to the facts here in that, first of all, there was only one demand or be it resulting in many payments and the threat was to the victim's property not as here to his person. The threat was moreover, in this case, that, the victim would be assaulted not only by the appellant but "by others". Mr. Macrae points out that there was no specific triad background to this offence but in the context of Hong Kong a threat of assault by others is one not to be lightly disregarded. I am satisfied that the facts of this case showed that it was, if anything, more serious than Chan Tak. Reliance was also placed on Kong Loi v. R. C. A. 168/77. There the sentences of two years imprisonment were passed for 3 demands, one for $50 and two for $100. There were threats of assault. I consider, however, that the facts show that these present offences were again more serious.
Decision
8. I am satisfied that the Magistrate should not have made the sentences for the blackmail and theft consecutive and those sentences must all be concurrent. I entirely, however, agree with him that this was a very nasty and vicious series of blackmails all being committed over a short period of time and I do not think that, even disregarding the evidence of events in 1983, the sentences were in any way excessive. I think possibly the correct course would be to have made two of the sentences for blackmail partially consecutive and partially concurrent as the Magistrate has now got power to do. I have considered whether I should adopt that course but in view of the fact that the appellant was not represented before the Magistrate and in particular was not in a position to argue the question of the admissibility of the evidence of the previous blackmails, I have decided I should not do so. The appeal is therefore allowed to the extent that all sentences shall be concurrent.
9. I only echo the view of the Magistrate that the circumstances of this case called for the matter being heard in a higher court which could have imposed a proper sentence and where also the appellant would have been entitled to legal representation as this case did present difficulties.
10. I am indebted to Counsel for the able manner this case was argued.
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(R. G. Penlihgton) |
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Judge of the High Court |
Representation:
Mr. A. C. Macrae (David Ravenscroft & Co.) for Appellant
Mr. Kevin Browne, Crown Counsel for the Crown
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