HKSAR v. CHEUNG CHI WAI AND ANOTHER

CACC 200/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 200 OF 2000

(ON APPEAL FROM DCCC NO. 9 OF 2000)

____________

_______________

J U D G M E N T

_______________

Keith JA (giving the judgment of the Court):

Introduction

1. On 26 April 2000, the Applicants were convicted by Judge Wilson in the District Court on charges of blackmail and theft. They had pleaded not guilty. Since they were 19 and 17 years old respectively, the judge called for reports on them. When they returned to court on 10 May, the judge sentenced them both to detention in a training centre on each of the charges. The Applicants, who were the 2nd and 3rd Defendants in the trial (D2 and D3), now apply for leave to appeal. D2 applies for leave to appeal against his sentence, whereas D3 applies for leave to appeal against both her convictions and sentence.

The prosecution's case

2. The prosecution's case was that the Applicants had been engaged in an unpleasant scheme to exploit the vulnerability of those who engage the services of prostitutes. The scheme worked like this. When a client requested the services of a prostitute, a prostitute would visit his home or hotel room. She would demand payment of a sum which was greater than had been agreed for her services. The client would then be threatened with violence if he refused to pay. These threats would be made over the telephone or by a man in the street when the client went to a cash dispenser to obtain the money demanded.

3. D2 and D3 were each involved in such a scheme on two occasions. The first incident involved both of them. On that occasion, the woman who purported to be a prostitute and who arrived at the client's home was D3. Over the telephone, a fee for her services had been agreed at $700.00. When she arrived she demanded a further $100.00. The client protested, but he was persuaded to go to a cash dispenser to obtain the additional $100.00. When they got outside, D2 joined them. He was talking on a mobile telephone. They escorted the client to a cash dispenser. As they walked there, D2 handed the client the mobile telephone, and a man demanded $10,000.00 from him. He said that if the client did not pay up, he would be beaten and chopped. He added that although the client could not see him, he was shadowing the three of them from a nearby van. The client was frightened, he withdrew the maximum amount which he could, which was $5,000.00, and he handed it over to D2. In his evidence, the client said that the worst threats came from the man on the telephone, but they were accompanied by what the judge in his Reasons for Verdict described as "menacing words and actions by D2 and D3 also". This incident gave rise to charges 1 and 2 which both D2 and D3 faced. Charge 1 was blackmail, i.e. making the unwarranted demand for $10,000.00 with menaces, and charge 2 related to the theft of the $5,000.00.

4. D3 alone was involved in the second incident. On that occasion, the woman who purported to be a prostitute and who arrived at the client's hotel was again D3. The client paid her in advance the fee of $1,500.00 which had been agreed. D3 asked the client to take a shower, and when he emerged from the shower, he found D3 talking to someone on the hotel telephone. She handed him the receiver, and a man told him to pay $5,000.00 if he did not want to die. The client told him that he did not have anything like that sum, and the caller told him to show his wallet to D3. The client was frightened. He did as he was asked, and she took all his remaining cash which came to $1,400.00. After a while D3 left, and the client then noted that his mobile telephone was missing. This incident gave rise to charges 5 and 6. Charge 5 was blackmail, i.e. making the unwarranted demand for $5,000.00 with menaces, and charge 6 related to the theft of the $1,400.00 and the mobile telephone.

5. D2 alone was involved in the third incident. On that occasion, the client had sexual intercourse with a prostitute at a villa in Tsim Sha Tsui. Afterwards the girl made a telephone call, and handed the receiver to the client. A man demanded $5,000.00 from him. The girl took $500.00 from the client's wallet, and noted that it contained bank and credit cards. The man then ordered the client to go downstairs with the girl. He was told that a group was waiting downstairs, and that he would be beaten up if he did not do as he was told. In the street outside they met D2. The girl gave D2 the $500.00 which she had taken earlier. The three of them then went to a cash dispenser. $1,500.00 was withdrawn and given to D2. Attempts to obtain further cash failed. The client never saw his credit card again. He was then taken to a nearby restaurant, where soap was used to remove a gold ring from his finger. This incident gave rise to charges 10 and 12. Charge 10 was blackmail, i.e. making the unwarranted demand for $5,000.00 with menaces, and charge 12 related to the theft of the $1,500.00, the credit card and the ring.

D3's application for leave to appeal against conviction

6. Since D3 is applying for leave to appeal against her convictions, it is necessary to set out the version of these events which she gave in evidence. She agreed that D2 was her ma fu, and that he had accompanied her on each of the incidents in which she had been involved. As far as the first incident was concerned, she claimed that there had simply been a disagreement over money with the client, and that the client had been content to pay her a further $100.00 and to go to a cash dispenser to collect it. She had known that someone had been speaking to the client on a mobile telephone, but she had not known that any threat was being made. In essence, her defence was that she had not been a party to the blackmailing of the client, or the removal of the $5,000.00 from the cash dispenser, though the fact that she had not actually handled the $5,000.00 herself is irrelevant if she had been a party to the scheme by which the client was to be forced to remove cash from the cash dispenser.

7. As far as the second incident was concerned, she claimed again that there had simply been a disagreement over money with the client, and so she had telephoned her employer who had sorted it out with the client over the telephone. She had not taken any money from the client's wallet or his mobile telephone, nor had she known anything about threats being made to him over the telephone. She had simply received from the man the fee for the sexual services which she had provided to him.

8. In the final analysis, the judge had to decide whether the evidence of the clients in the two incidents in which D3 had been involved was reliable or whether he was left with a reasonable doubt about either its accuracy or its truth. He found the clients to be "thoroughly honest" witnesses, on whose accounts he could safely rely. He preferred their evidence to that of D3 which he described as "absurd". The judge had the benefit of hearing and seeing the witnesses, and we have not discerned any basis on which it would be legitimate to interfere with his findings of fact. Apart from anything else, why would the clients have reported the incidents to the police if they had not been true? What the Applicants were relying on was that embarrassment over engaging the services of prostitutes which would be a powerful disincentive not to report the incidents. D3's application for leave to appeal against her convictions is accordingly dismissed.

D2's application for leave to appeal against sentence

9. The judge took the view that the offences committed by the Applicants were so serious that despite their age they had to receive custodial sentences. However, by ordering the Applicants to be detained in a training centre, the judge must have thought, in the light of the language of section 4(1) of the Training Centres Ordinance (Cap. 280), that it was expedient for their reformation and for the prevention of crime that they should undergo a period of training in a training centre.

10. Mr Michael Lunn SC for D2 criticises the judge for not considering a community service order as an alternative to a custodial sentence. The judge is said to have fallen into the same error as the judge in HKSAR v. Chow Chak Man [1999] 2 HKC 659, who was said at p. 663B "not to have addressed the particular matter and to have regarded himself as simply precluded from imposing a community service order upon the basis [that] burglary was a serious offence and that a custodial sentence was inevitable."

11. For our part, we are not prepared to assume that the judge in the present case did not consider community service in the case of D2. After all, the probation officer who prepared a report on D2 expressly referred to community service as a possible sentencing option. She said:

"... the Accused might deserve a chance for an open treatment. It is considered that he would benefit more from performing unpaid work that serves both punitive and rehabilitative purposes."

It is true that the judge did not refer to this option in his sentencing remarks, but that does not mean that he did not consider it. The judge must be assumed to have concluded that community service was not, in the present case, a viable alternative to a custodial sentence.

12. We share that view. In Chow Chak Man, the Court of Appeal approved at p. 663E-F the guidance given by the English Court of Appeal in R. v. Brown (1981) 3 Cr. App. R. (S) 294 as to those offenders who could be said to be best suited for a community service order. Some of the features identified in that case could be said to apply to D2, but the nature of his offences, in particular his involvement at a professional level with vice activities and organised crime, takes away much of the benefit to be derived from his lack of previous convictions hitherto and his previous work record.

13. In our view, the judge did not err in principle in sentencing D2 to detention in a training centre. Indeed, that was the sentence recommended by the pre-sentence assessment panel officer who interviewed D2 when he was in custody pending sentence. We think that the nature of the offences which he committed made a custodial sentence inevitable, and although he was a real candidate for the strict regime which we hope he has now been experiencing in the training centre, on one view he was lucky to avoid a sentence of imprisonment. D2's application for leave to appeal against his sentence must be dismissed.

D3's application for leave to appeal against sentence

14. D3, on the other hand, poses a difficult sentencing problem. She comes from a stable working-class family, she did well at primary school, but failed to achieve at secondary school. She then got in with the wrong crowd. By the time of her arrest she was living away from home, and as is apparent from the offences which she committed, she was mixing with highly undesirable elements. The probation officer described her in his report as having a "carefree living pattern", and he believed that she had little insight into what he referred to as her "misdeeds" and "her ruin[ous] life style". He expressed the opinion that what she needed was "a period of character training in a more confined environment". For that reason, probation was not recommended as a viable option. Nor was a community service order, because that would not provide D3 with the intensive counselling which she needed.

15. All of this pointed to detention in a training centre as being by far the most appropriate way of dealing with D3, without whose involvement in these offences the offences could not have been committed, and whose conduct demonstrated a cynical exploitation of those who sought sexual services. The trouble was that she was then about four months pregnant by her boyfriend, and that made her detention in a training centre less appropriate than would otherwise have been the case for two reasons. First, the regime in a training centre is physically demanding, and her condition would, for the first few months at any rate, prevent her from fully participating in the activities of the training centre. It was for that reason that the pre-sentence assessment panel officer at the institution at which she was being held pending sentence considered her unsuitable for detention in a training centre. Secondly, as was said in Cross & Cheung, "Sentencing in Hong Kong", 3rd ed., p. 465:

"A court ... should think long and hard before sending a pregnant woman to the training centre. Such an institution has no proper facilities for babies, and the separation of mother and child at some stage will be inevitable."

16. The judge did not regard these considerations as militating against ordering D3 to be detained in a training centre. In his Reasons for Sentence, he said:

"Pregnant women are regularly imprisoned or found to be pregnant after imprisonment. The authorities have medical facilities and tailor work programmes accordingly. The original concept of Training Centre was that they were to be institutions short of imprisonment, to which young persons could be sent with a hope of reformation, and where they could be kept apart from more hardened adult prisoners. That principle, in my view, remains paramount and the authorities should be prepared to tailor physical activities and medical care to accord with pregnancy, and not the other way round."

We are inclined to agree. In any event, her inability to take part in the physical activities of a training centre would be over within a few months after she had given birth and recovered from her confinement.

17. However, it is the separation of mother and child which causes us greater concern. Rule 21 of the Prison Rules (which applies to training centres as well as to prisons: see section 8(1)(b) of the Training Centres Ordinance) enables the authorities to permit a mother to keep her baby with her in prison until it reaches 9 months, and the mother may apply thereafter for the baby to remain with her until the age of three. The difficulty, so Cross & Cheung tells us, is that this facility is not available in training centres. One view of the matter is that this should not deter the court from sentencing a pregnant offender to detention in a training centre if that is the correct sentence to pass. The court should not be deflected from passing the appropriate sentence simply because of the lack of facilities for mothers and babies. If the sentence is an appropriate one, it is for the authorities to make those facilities available. On the other hand, if mother and child do not have to be separated because such facilities are made available, the point of sending D3 to a training centre would be defeated. She would have to devote so much time to nursing and caring for her baby that she would not receive the training which she was sent to the training sentence to receive.

18. It seems to us, therefore, that the only viable sentencing options - if mother and child are not to be separated - are to convert D3's sentence to a sentence of imprisonment or to place her on probation. It may be that the 4 months or so during which D3 has been undergoing training may have had a salutary effect upon her, and provided her with the insight into her behaviour which she was lacking. For these reasons, we propose to direct that a further report be prepared on D3 by the probation service for the purpose of providing us with up-to-date information (a) as to whether her insight into her behaviour has improved to such an extent so as to enable probation to provide her with the counselling which she needs to lead a productive and crime-free life, and (b) as to what her future plans are for her child. If she is intending her child to be cared for by others, detention in a training centre may well be the appropriate sentence after all. In addition, we wish to have a further report from the Correctional Services Department as to whether or not it is feasible for her to keep her baby in the training centre, and what facilities would in fact be available to her there. We need that information because Ms Mary Sin for the prosecution was unable to confirm for us the accuracy of the passage from Cross & Cheung to which we have referred.

19. Accordingly, D3's application for leave to appeal against her sentence is adjourned to a date to be fixed for those reports to be provided, and the application will be listed for hearing as soon after 3 October as possible. However, we must warn D3 that we are keeping all our sentencing options open. We do not exclude the possibility of sending D3 to prison or returning her to the training centre, even if the further report which we have commissioned suggests probation.