HKSAR v. LAU SAI TAT, TERENCE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.258
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 24th April 1998, this Applicant (D1 at trial) pleaded guilty in the District Court before Deputy Judge Geiser to two charges of blackmail. A report was then obtained to assess his suitability for a Detention Centre, and a further report was prepared by the Probation Service as to his background. This made no recommendation.

2. On 8th May 1998, the Applicant, then aged 21, was made the subject of concurrent Detention Centre orders on both charges. He now seeks leave to appeal against his sentence.

3. A clear account of the case for the prosecution is set out in the amended Summary of Facts. In effect, the allegation in charge 1 was that the Applicant, accompanied by two other males, demanded a sum of money to pay for an abortion for the victim's ex-girlfriend who the victim had made pregnant. The underlining threat to the blackmail was that if he did not pay, the victim would be in trouble. The Applicant said that he was a member of Shing Wo. He turned down an offer made by the victim to pay $3,000.

4. The events relating to charge 2 occurred a few hours later when a second meeting took place at which a number of people attended on both sides. This time, the Applicant demanded $18,000, of which the first instalment to be paid would be $3,000.

5. It was after this that the victim reported the matter to the police. The Applicant was arrested after an undercover officer tape-recorded events which took place when marked notes amounting to $3,000 were handed over by the victim to the Applicant and his accomplices (D2 and D3).

6. The first four grounds of appeal can be taken together because they are all directed at the same point. They are that:

1. The Detention Centre order imposed on the Applicant is excessive and too severe in all the circumstances of the case.

2. The learned judge failed to give sufficient regard and weight to the Applicant's personal circumstances which could have justified imposing other alternative sentences.

3. The severity of the Detention Centre Order imposed was out of proportion to the gravity and nature of the offences.

4. The Applicant had pleaded guilty to the charges, had a clear record and received a favourable probation report.

7. It is clear to us that the judge did have regard to the Applicant's personal circumstances. The reports with which he had been provided gave a full and clear picture of all relevant material so that the judge was able properly to assess the appropriate sentence. In particular, the Detention Centre Suitability Report contained this recommendation on page 4:

"In the interest of his reform, I am of the opinion that the defendant may stand a chance of success in turning a new leaf if given due and adequate social intervention. In this light, a course of disciplinary training coupled with a period of aftercare supervision would be beneficial to his reform."

8. Importantly, also, the judge made specific reference to the Applicant's clear record and his pleas of guilty. He went on to describe this case as one of "classic blackmail" calling for an immediately effective custodial sentence. We wholly agree with his assessment, but this leads to ground 5 because what is argued here is that the Applicant was not medically fit to undergo the sentence at the time of his sentencing.

The report from the Correctional Services Department specifically states that the Applicant was mentally and physically fit to undergo training in a Detention Centre. However, in an affirmation made by the Applicant, and which has been the subject of much debate in this application, it becomes clear that he does suffer from a disability which he describes in his affirmation as arising from a fracture to his small finger on one hand. It is one that makes difficult for him the undertaking of exercise which is routinely required of him in the Detention Centre.

9. A medical report has been placed before us today. It is dated 25th August 1998. It says, in terms:

"According to the medical record on 14.5.98, he alleged to Dr. William Li at Sha Tsui Detention Centre that he had injured his left little finger by iron gate in 1997. He was admitted to Kwong Wah Hospital 4 to 5 days for treatment. He was discharged with ? nail inserted in his injured finger. The patient defaulted follow up and pulled out the nail by himself.

2. Dr. Li examined him and his left little finger was found to be slightly deviated inwards. Flexion of small joints were affected, with lesser degree on knuckle. He cannot grip his left fist and has tenderness.

3. He was allowed to perform physical exercise which would not involve his left little finger. He is now under the care of Orthopaedic Clinic at Kwong Wah Hospital and the next date of follow up is scheduled on 28.8.98.

4. He was transferred to Pik Uk Correctional Institute on 15.8.98 for court hearing. Currently he can grip almost fully. His affected little finger can flex almost fully. He alleged pain in the middle part of left little finger when he tries to flex fully.

5. Apart from the aforesaid, his general health condition is satisfactory."

10. We have had no evidence placed before us that the Applicant is not capable of playing a sufficient part in the activities in which he is required to participate. If he was physically incapable, the remedy would be for a transfer to a prison which could be made under the provisions of section 8A of the Detention Centres Ordinance, Cap.239. Furthermore, we have taken the precaution of making an inquiry to ensure that the Applicant's minor disability will not have any adverse effect upon his release date, and we have received an assurance by fax from the Correctional Services Department that it will not. It reads:

"The Detention Centre Training Programme comprises of different aspects such as work behaviour.. etc. Physical education is only one of these aspects. The date of release for each of the detainee would be much depended on the overall performance of all these aspects.

In some cases, if the detainee is observed to have difficulty in attaining the required standard, slight adjustment would be made to assist him to achieve the requirement. In this case, the physical exercise had been slightly modified to fit the detainee's physical ability. Therefore the date of his release would be based on the degree of effort he exerted."

11. We did this in order to satisfy the Applicant that his perception of an adverse consequence was without foundation.

12. For the reasons we have given, there is no merit in any of the arguments advanced. The sentence imposed was obviously the appropriate one and this application is dismissed.