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CACC 56/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 56 OF 2015
(ON APPEAL FROM DCCC NO. 739 OF 2014)
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| BETWEEN |
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HKSAR |
Respondent |
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LEE Yik-lun |
1st Applicant |
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| Before : Hon Lunn VP in Court |
| Date of Hearing : 11 September 2015 |
| Date of Judgment : 11 September 2011 |
| Date of Reasons for Judgment : 2 October 2015 |
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REASONS FOR JUDGMENT
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1. The applicant seeks leave to appeal against the sentences of imprisonment imposed on him on 4 February 2015 by District Court Judge Stanley Chan following his pleas of guilty to charges, which arose out of the same incidents in respect of the same victim, described as Mr X, which occurred on the evening of 20 May 2014. The applicant was charged with committing those offences together with four co-defendants. At the hearing, I refused the application for leave to appeal against sentence. Now, I give my reasons for so ordering.
2. By Charge 2, the applicant was convicted, together with his four co-defendants, of assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the offences against the Person Ordinance, Cap. 212. By Charge 3, the applicant was convicted, together with the 5th defendant of the theft of $400 from Mr X, contrary to section 9 of the Theft Ordinance, Cap. 210. Finally, by Charge 4 the applicant was convicted, together with the 2nd, 3rd and 5th defendants, with the blackmail of Mr X, namely making an unwarranted demand with menaces of him for the payment of $14,000, contrary to section 23(1) and (3) of the Theft Ordinance.
Sentences
The applicant
3. The applicant was sentenced to 8 months’ imprisonment on each of Charges 2 and 3, which sentences were ordered to be served concurrently, and to 16 months’ imprisonment in respect of Charge 4, six months of which was ordered to be served concurrently with the other sentences. However, from the resulting total of 18 months’ imprisonment the judge reduced the total term of imprisonment by one month, to reflect the fact of the applicant’s remorsefulness in inviting the court to make an order of restitution to Mr X of $400, which order the Court made. Accordingly, the total sentence imposed on the applicant was 17 months’ imprisonment.
The sentences imposed on the other defendants
4. All the other defendants, save for the 4th defendant had a “clear record”. The 2nd defendant, who was 15 years of age, was ordered to be detained in a Rehabilitation Centre, having pleaded guilty to a charge of assault occasioning actual bodily harm and blackmail. The 3rd defendant, who was 20 years of age, was ordered to be detained in a Detention Centre, having pleaded guilty to two charges, namely assault occasioning actual bodily harm and blackmail. Finally, the 5th defendant, who was 17 years of age, was sentenced to a total of 12 months’ imprisonment suspended for 30 months, having pleaded guilty to three charges, namely assault occasioning actual bodily harm, theft and blackmail.
5. The 4th defendant, who was 21 years of age, had previous criminal convictions, including one for unlawfully trafficking in dangerous drugs, for which in 2011 he had been ordered to be detained in a Training Centre, and another for an offence of assault occasioning actual bodily harm, committed in November 2013, for which he had been given a sentence of 2 months’ imprisonment suspended for 12 months in July 2014. He was sentenced to 1½ months’ imprisonment, having pleaded guilty to a single charge of assault occasioning actual bodily harm.
The facts
6. Mr X was subjected to the assault, the theft and the blackmail demand with menaces on the evening of 20 May 2014 at the podium, 4th floor, Fu Cheong Estate, Sham Shui Po. He had been lured there by his 15 year old cousin, the 2nd defendant. Earlier, having complained to the applicant that Mr X had sex with her on several occasions, the 2nd defendant was asked to arrange to meet Mr X, so that he could be beaten up and taught a lesson. She did so by telephoning Mr X telling him that she was drunk and asking him for his assistance to take her home. The applicant called some of his friends to assist. On his arrival, Mr X was confronted by the applicant in the presence of the 2nd and 3rd defendants and accused of having sex with the 2nd defendant. They were joined by the 4th and 5th defendants. Notwithstanding his denials, those allegations were repeated until the applicant, the 4th and 5th defendants surrounded Mr X punching and kicking him, so that he fell to the ground. The assault lasted about two minutes. It was accepted that the 3rd defendant was present and lent his weight to the assault, albeit that he did not land a blow. The 2nd defendant was present throughout.
7. The applicant took $400 from Mr X’s wallet and demanded the payment of $10,000 before midnight to resolve the matter, threatening that he had triad connections and would cause trouble to Mr X and his family if payment was not made. In face of Mr X’s response that he could not raise that amount of money that day, the applicant demanded payment of $14,000 the following day, reiterating his threat in the event of non-payment.
8. Mr X reported the events to the police. A medical examination, Mr X was found to have mild bruising on his back, mild redness of the nose and a mild abrasion on his right forearm.
9. On the following day, 21 May 2014, having spoken to the 2nd defendant by telephone and having made an arrangement to hand over the money, Mr X went to a restaurant in Fu Shin Estate. The applicant and the 2nd defendant were arrested outside the restaurant, having been pointed out by Mr X. The 3rd defendant was arrested nearby. The 4th and 5th defendants surrendered to the police on 22 May 2014.
Reasons for sentence
The applicant
10. Having considered a probation officer’s report and a Detention Centre Suitability Report in respect of the applicant, the judge gave his reasons for sentence, noting that he was 22 years of age and had a “clear record”. The latter report stated that the applicant was unsuitable for detention in a detention centre, “…because of obesity and sleep apnoea”.[1] The judge noted that the probation officer commented that the applicant was active as a significant member of a triad society. Of the two reports, the judge said:[2]
“ After considering all other factors, the probation officer did not recommend probation supervision nor CSO. Instead, it was recommended that D1 is in need of disciplinary and character training to instil him with a sense of being a law-abiding citizen. On the other hand, the Detention Centre report commented that D1 is not suitable for detention in a Detention Centre.”
11. Of the applicant’s role in the commission of the offences, the judge determined:[3]
“ He occupied a central role in these offences and apparently acted as the big brother of the gang. He assaulted X and took $400 from X’s wallet.”
12. Then, the judge went on to identify aggravating features in the commission of the offences:[4]
“ The aggravating features in this case are that X was accused to have sex with an underage girl D2 who even accused X of raping her. D1 called upon other defendants to appear at the podium to show force and exert pressure on X. D1, together with D2, also initiated to ask for $2,000 each from X for seven people and threatened X with further assaults.”
13. Having noted that the report made it clear that the applicant was not suitable to be made the subject of a probation or a community service order or to be detained in a Detention Centre, the judge said that the “only alternative is imprisonment”.[5]
Starting point for sentence
Charges 2 and 3
14. Although he did not state so in terms, it is clear that the judge identified a starting point for sentence in respect of Charges 2 and 3 of 12 months’ imprisonment.
Charge 4
15. The judge stipulated a starting point for sentence in respect of the blackmail charge of 24 months’ imprisonment. In doing so, he said:[6]
“ X was subject to further threat and the possibility of being assaulted. The sum involved was $14,000 and no money changed hands. From the facts of the case, there was no evidence to show that the blackmail was triad related and the demand in fact was a one-off transaction. But D1 was one of the instigators in the plot.
It is trite that the offence of blackmail is one of the most serious offences in the calendar of offences, with deterrence as the most important part of the sentence.” [italics added.]
Discount
16. The judge stated that he afforded the applicant a discount of one-third from the sentences stipulated as the starting points taken for sentence.
Totality
17. Acknowledging that the blackmail offence was to be regarded as “part of a series of events starting from D’s allegations against X”, the judge determined that six months of the sentence of 16 months’ imprisonment imposed in respect of Charge 4 was to be served concurrently with the sentences imposed in respect of the other offences. However, he went on to “further reduced the sentence by one month” to reflect the restitution order in respect of $400 stolen from Mr X.[7] The judge did not articulate specifically how he gave effect to that reduction in sentence, stating only, “I sentence D1 to a total of 17 months’ imprisonment.”
Ground of appeal against sentence
18. In the grounds of appeal against sentence advanced on behalf of the 1st applicant, Mr McCoy SC submitted that the sentence of 8 months’ imprisonment imposed in respect of the theft of $400 was manifestly excessive. Similarly, he argued that the same was true of the same sentence of imprisonment imposed in respect of the assault occasioning actual bodily harm charge. It was contended that in imposing that sentence, the judge had failed to have regard to a proper apportionment of blame, in particular in respect of the 4th defendant for whom the judge had stipulated a starting point for sentence of 3 months’ imprisonment on that charge.
19. Then, it was submitted that the starting point taken for sentence for the applicant of 24 months’ imprisonment for the blackmail charge was manifestly excessive. Reliance was placed on the judgment of Deputy High Court Judge To, as he was then, in HKSAR v Wong Ching Ying [8].
20. Next, it was submitted that the judge had erred in having regard to the bare allegation of the 2nd defendant, repeated by the applicant to Mr X, that he had sex with the 2nd defendant, as an aggravating feature of the commission of the blackmail offence. There was no evidence that the allegation was true. Only if the allegation was true, and as a result the victim was more likely to succumb to the demand, could the allegation be regarded as an aggravating feature in the commission of the offence.
21. Finally, it was submitted that the judge had erred in ordering only six months of the sentence of 16 months’ imprisonment imposed in respect of the blackmail charge to be served concurrently with the other sentences. It was to be noted that the judge had ordered the sentences imposed on the 5th defendant for the same three charges be served concurrently and that he had ordered that the sentences of imprisonment be suspended for 30 months. There was an unjustified disparity in the sentences imposed on the two of them, such that the applicant unjustified sense of grievance.
22. In his oral submissions, Mr McCoy pointed out that the sentence of 12 months’ imprisonment imposed on the 5th defendant, who had been convicted of the same three offences as the applicant, had been ordered to be suspended. Like the applicant, he has a clear record. Further, the 4th defendant was sentenced to 1½ months’ imprisonment or the assault occasioning actual bodily harm offence, notwithstanding the fact that he had two previous convictions for offences of violence. Mr McCoy submitted that the applicant has a justified sense of grievance that the disparity in the sentence imposed on him compared with the sentences imposed on those defendants.
23. Realistically, Mr McCoy acknowledged that the crux of his submissions was aimed at the starting point taken to sentence by the judge for the offence of blackmail. Success in respect of the other sentences would be pyrrhic if the sentence of 16 months imposed on the blackmail offence was unsuccessful. In respect of the blackmail offence, he invited the court to note that the net benefit to be anticipated by the applicant from success in the demand for $14,000 was a payment of $2,000 for the applicant himself, given that the monies were to be shared by all those involved. He submitted that the starting point for sentence of 24 months’ imprisonment was manifestly excessive and that an appropriate starting point was 18 months’ imprisonment.
A consideration of the submissions
The applicant
24. The circumstances of the commission of all three offences of which the 1st applicant was convicted were intimately linked. They were premeditated. Having repeatedly accused Mr X of having had sex with the 2nd defendant, the 1st applicant invited Mr X “to suggest a way to resolve the matter.” [9] His failure to come up with any suggestion led, first to the assault, secondly to the theft and thirdly to the blackmail. So, the theft occurred immediately after violence had been visited on Mr X by three men, who punched and kicked him, so that he fell to the ground. The 1st applicant admitted hitting Mr X several times in the face. Mr X had mild redness to his nose and bruising to his back. It is to be noted that the charge of theft was laid in the alternative to the first charge against all the defendants, namely a charge of robbery.
25. Given those circumstances of the commission of the offences, namely a premeditated assault on a lone man planned by the applicant, in which the victim was lured to the place of attack where he was attacked by three assailants and punched and kicked to the ground, and that the theft occurred immediately afterwards in the continued presence of all the assailants, in my judgment no arguable ground of appeal has been advanced in behalf of the 1st applicant that the judge erred in taking a starting point for sentence in respect of each of those charges of 12 months’ imprisonment.
The starting point for the applicant of 24 months’ imprisonment for the offence of blackmail
26. Although the judge found that there was no evidence to show that the blackmail “was triad related”, nevertheless it was admitted that in making his demand of Mr X for the payment of $10,000 :
“ …D1 implied he had triad connections and threatened to cause trouble to X and his family have X did not pay up.” [10]
27. Also, the applicant admitted in his out-of-court statement to the police that, having demanded payment of $14,000 from Mr X, his parting warning to Mr X was “…that he would be given a further beating if he did not pay the money demanded.”[11] So, from the perspective of Mr X the demands and threats were presented by the applicant as backed up by triad forces. Of the effect of the threat of a further beating on Mr X, the applicant said:[12]
“ X was apparently very frightened of being beaten up again.”
28. In stipulating a starting point for the sentence for the offence of blackmail, for the applicant, the judge said blackmail “is one of the most serious offences” and that “deterrence” was the “most important part of the sentence.” [13] Also, he determined that the applicant “was one of the instigators in the plot”.[14]
29. As noted earlier, prior to stipulating the starting points for sentence for the applicant for any of the offences, the judge described what he found to be the aggravating features of the offences:[15]
“ The aggravating features in this case are that X was accused to have sex with an underage girl D2 who even accused X of raping her. D1 called upon other defendants to appear at the podium to show force and exert pressure on X. D1, together with D2, also initiated to ask for $2,000 each from X for seven people and threatened X with further assaults.”
30. It is clear that in describing the first feature of aggravation the judge had regard only to the fact that the accusation against Mr X was of having “sex with an underage girl D2”, not that it was true. There is no dispute that there was no evidence as to whether or not the allegation was true. The judge’s statement did not suggest otherwise.
31. The judge’s reference to the fact that the 2nd defendant “…even accused X of raping her”, was not a matter to which reference was made in the Summary of Facts, in the description of the accusations made against Mr X when he was confronted by the applicant and subsequently by the 3rd defendant.[16] However, reference was made to that allegation having been made by the 2nd defendant to him in the out-of-court statements of the applicant and of it being an allegation made by the applicant to Mr X at the time of the confrontation.[17]
32. The other matters stipulated by the judge to be aggravating features concerned primarily the role of the applicant in the commission of the offences and reflect the applicant’s out-of-court statements of his role, in particular that he had “called D3, D4 and D5 to give assistancecross-examining and hitting X” and that he had told X “that the matter could be resolved if X paid $14,000, so that the seven persons at the scene could each receive $2,000.” [18]
33. In stipulating a starting point for sentence of 24 months’ imprisonment for the applicant in respect of the blackmail offence the judge made no reference to any authority.
34. In the judgment of this Court in The Queen v Lau See Kau[19], Power VP said of the sentencing judge’s statement that “18 months to 3 years was the normal range of sentence for blackmail”, that:
“ …we are not persuaded that any such “normal range” of sentencing exists for blackmail. The circumstances of blackmail offences vary so much that sentences are very much longer than three years of often clearly appropriate.”
35. In the judgment of the Court of Appeal of England and Wales in R v Hadjou [20]Lord Lane CJ addressed the appropriate approach to be taken to sentence in cases of blackmail. In that case the appellant demanded money from his former girlfriend threatening to make public a video recording they had made of their sexual activity together. In dismissing the appeal from a sentence of 4 years’ imprisonment imposed after trial, Lord Lane said:[21]
“ Deterrence is perhaps the most important part of the sentence in a case such as this only just after the question of punishment.”
36. The judgment of Deputy Judge To in HKSAR v Wong Ching Ying[22],an extempore judgmentin a Magisterial appeal in which the appellant was unrepresented is, with respect, of no assistance to this Court. There, the appellant was convicted after trial on one charge of blackmail, two charges of common assault and one charge of doing an act of intending to and tending to the course of public justice. The appellant’s conduct was directed towards a hawker who, together with his wife, operated a market stall and occurred on different dates over a period of almost one year.
37. In March 2004, the appellant demanded a “tor dei” fee of $10,000 of the couple and threatened the husband would be beaten up if he was seen in the market again (blackmail – Charge 1). In October 2004, the appellant approached the hawker in a restaurant and punched him in the face and chest (common assault – Charge 2). As a result of the hawker’s report to the police, he was required to attend the appellant’s trials of blackmail in April 2005. However, in February 2005 the appellant intercepted the hawker, as he made his way to the market and threatened him not to give evidence, after which he punched him twice on the chest (Charges 3 and 4).
38. The magistrate took as starting points for sentence, which sentences he imposed: 18 months’ imprisonment for blackmail (Charge 1); 1 month’s imprisonment for the first common assault (Charge 2 ); 12 months’ imprisonment for perverting the course of justice (Charge 3); and 3 months’ imprisonment for the second common assault (Charge 4). He ordered that the sentences of imprisonment imposed in respect of Charges 1 to 3 to be served consecutively and the sentence imposed in respect of Charge 4 to be served concurrently. Accordingly, the total sentence imposed on the appellant was 31 months’ imprisonment.
39. For his part, the judge merely said that the sentences were “appropriate in the circumstances” and, in dismissing the appeal, determined of the sentences that they were “neither wrong in principle nor manifestly excessive.” Before doing so, the judge had noted that the appellant had two previous convictions for blackmail, in 1979 and 1981 and convictions for common assault and assaulting a police officer in December 2002.
40. Given that the judge, understandably so in the circumstances, made no attempt to address the nature of the seriousness of the offence of blackmail and the aggravating circumstances of its commission let alone did he make any reference to authority, the judgment is of no assistance to this Court. It is a matter of surprise that it has been cited to the Court.
Disparity in sentence
41. In sentencing the 4th defendant for the offence of assault occasioning actual bodily harm, the only offence of which he was convicted, the judge stipulated a starting point for sentence of 3 months’ imprisonment.[23] He did so, notwithstanding that he acknowledged that he had committed the offence whilst on bail for another offence and that he admitted having “punched X’s face a few times.” [24] Also, the judge noted that the 4th defendant had two previous convictions. In 2011, he had been ordered to be detained in a Training Centre for an offence of unlawfully trafficking in a dangerous drug. In July 2014, he had been sentenced to two months’ imprisonment, suspended for 12 months, for an offence of assault occasioning actual bodily harm committed in November 2013.[25] Further, the judge noted that in assaulting Mr X the 4th applicant did not act alone. Having acknowledged that the 4th applicant was entitled to a discount of one third from that taken as the starting point for sentence, the judge indicated that he would afford him a further discount of half a month’s imprisonment, for his indication that he was willing to pay Mr X $2,000, by way of a compensation order.[26]
42. The judge stipulated a starting point for sentence for the 5th defendant of 9 months’ imprisonment in respect of the assault occasioning actual bodily harm charge. Having afforded him a discount of one-third, he imposed a sentence of 6 months’ imprisonment in respect of that charge. The judge noted that he admitted having “hit X on his back and abdomen”.[27] The judge stipulated a starting point for sentence on the offence of blackmail of 18 months’ imprisonment and 9 months’ imprisonment for the offence of theft.
43. In sentencing the 5th defendant, the judge noted that he was only 17 years of age and had a “clear record”. He said that he had regard to the fact that the 5th defendant had provided a non-prejudicial statement to the authorities and that it was intended to be called as a witness for the prosecution.[28] He said:
“ I believe that D5’s plea and his NPS was instrumental to the shortening of this trial.” [29]
44. Having said that he took into account the mitigation advanced on behalf of the 5th defendant, namely: his cooperation with the authorities; his pleas of guilty; his role in securing the pleas from other defendants; and his promise to reform, the judge said that he took “an exceptional step” in sentencing the 5th defendant.[30]
45. There is no doubt, that the sentence imposed on the 4th defendant for the charge of assault occasioning actual bodily harm was very lenient. However, given the range of sentences imposed on the other defendants, namely Rehabilitation Centre (the 2nd defendant), Training Centre (the 3rd defendant) and 6 months’ imprisonment (the 5th defendant), together with the explanations for the differences in the sentences, it is clear that the judge gave particular care to giving individually crafted sentences. In doing so, and in particular having regard to the culpability of the applicant, clearly he had regard to his finding that the applicant “occupied a central role in these offences and apparently acted as the big brother of the gang.”
46. In all the circumstances, I am satisfied that there is no arguable ground of appeal of disparity in sentencing, such that the 1st applicant has a justified grievance in respect to the sentence imposed upon him.
47. Although the applicant was convicted of four charges, the effect of the judge’s order that, on the one hand, the applicant be sentenced to 16 months’ imprisonment in respect of the blackmail charge and, on the other hand, that the total sentence imposed on the applicant was 17 months’ imprisonment, the overall sentence imposed on the applicant is only one month greater than that imposed in respect of the blackmail charge by itself. Similarly, although in the Particulars of Offence the dates on which the offence were alleged to have been committed was stipulated as having been 20 May 2014, it is clear that on 21 May 2014 the applicant, and others, were pressing home their attempts to collect from Mr X the money demanded the previous day.
48. In those circumstances, the judge was entitled to order that part of the sentence of imprisonment imposed in respect of the blackmail charge be served consecutively to the sentences imposed in respect of the other charges. That was the effect of his order, albeit that the effective increase of sentence by 1 month’s imprisonment was extremely modest.
Conclusion
49. For the reasons set out above, I was satisfied that there are no arguable grounds of appeal in respect of sentence. Accordingly, I refused the application for leave to appeal against sentence.
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(Michael Lunn) |
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Vice-President |
Mr Prakash L Daryanani, SPP of the Department of Justice, for the
respondent
Mr Gerard McCoy, SC, instructed by Henry Lam & Associates, for the 1st applicant
[1] Appeal Bundle, page 39.
[2] Reasons for Sentence; page 23, paragraph 55.
[3] Reasons for Sentence; page 23, paragraph 56.
[4] Reasons for Sentence; page 24, paragraph 57.
[5] Reasons for Sentence; page 24, paragraph 58.
[6] Reasons for Sentence; page 24, paragraph 60.
[7] Reasons for Sentence; page 25, paragraph 64.
[8] HKSAR v Wong Ching Ying (HCMA 474/2005; unreported, 26 August 2005).
[9] Appeal Bundle; page 51, paragraph 7-‘Summary of facts for all defendants’.
[10] Appeal Bundle; page 51, paragraph 9-‘Summary of facts for all defendants’.
[11] Appeal Bundle; page 53, paragraph 17-‘Summary of facts for all defendants’.
[12] Appeal Bundle; page 53, paragraph 17-‘Summary of facts for all defendants’.
[13] Reasons for Sentence; page 24, paragraph 61.
[14] Reasons for Sentence; page 24, paragraph 60.
[15] Reasons for Sentence; page 24, paragraph 57.
[16] Appeal Bundle; page 51, paragraphs 6 and 7-‘Summary of facts for all defendants’.
[17] Appeal Bundle; pages 52-3, paragraph 17-‘Summary of facts for all defendants’.
[18] Appeal Bundle; page 53, paragraph 17-‘Summary of facts for all defendants’.
[19] The Queen v Lau See Kau (CACC 573/1995; unreported, 16 February 1996).
[20] R v Hadjou (1989) 11 Cr App R (S) 29 at 30.
[21] R v Hadjou at page 30.
[22] HKSAR v Wong Ching Ying (HCMA 474/2005; unreported, 26 August 2005).
[23] Reasons for Sentence; page 27, paragraph 76.
[24] Reasons for Sentence; page 27, paragraph 75.
[25] Reasons for Sentence; pages 26-7, paragraph 74.
[26] Reasons for Sentence; page 27, paragraph 78.
[27] Appeal Bundle; page 60 O, paragraph 14.
[28] Appeal Bundle; page 62 G-H, paragraph 19.
[29] Appeal Bundle; page 64 C-D, paragraph 25.
[30] Appeal Bundle; page 64, paragraphs 26 and 27.
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