Hong Kong Judgment

Court of Appeal

HKSAR v. WONG YIN-CHAK

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Source document

01

Holding and result

Leave to appeal against conviction is refused for lack of merit; leave to appeal against the four year sentence is granted because it is arguable the offence fell into a lower category and a three‑year starting point may be appropriate for an offender with no prior convictions and no proven triad background.

Court disposition

Leave to appeal against conviction refused; leave to appeal against sentence granted for hearing before the full court.

Orders

  • Leave to appeal against conviction refused.
  • Leave to appeal against sentence granted and the appeal to be heard by the full court.

02

Material facts

Parties

Applicant

Appellant Counsel: Mr Vincent

Respondent (Crown)

Respondent

Amounts and remedies

  • Sentence Imposed Years: 4
  • Proposed Starting Point Years: 3

03

Procedural history

  1. Posture

    Criminal Appeal (blackmail) / Application for Leave to Appeal Against Conviction and Sentence; Leave Refused as to Conviction and Granted as to Sentence for Full Court Hearing

04

Questions and positions

Legal issues

Party arguments

Applicant
Applicant contended conviction and sentence were excessive and that the offence fell into a lower category warranting a lower starting point (arguably three years) given no previous convictions and no proven triad background.
Respondent
Respondent maintained the conviction was sound and the four year sentence was appropriate for the offence.

05

Court’s reasoning

  1. 01

    Vice‑President Stuart‑Moore judgment 16 November 2004

    Leave to appeal requires prima facie merit before being granted

  2. 02

    R v Lau See‑kau, CACC 573/1995

    Sentencing for this type of blackmail has no fixed guidelines; sentence starting points derive from comparative authorities

06

Ratio, limits and disposition

Ratio decidendi

Leave to appeal against conviction is refused for lack of merit; leave to appeal against the four year sentence is granted because it is arguable the offence fell into a lower category and a three‑year starting point may be appropriate for an offender with no prior convictions and no proven triad background.

Obiter and limits

  • There are no established guidelines for sentencing this type of offence.
  • The court's remarks on a three‑year starting point are provisional and should not be taken as an indication that the appeal will necessarily succeed.

Court disposition

Leave to appeal against conviction refused; leave to appeal against sentence granted for hearing before the full court.

  • Leave to appeal against conviction refused.
  • Leave to appeal against sentence granted and the appeal to be heard by the full court.

Source and reliance status

Court of Appeal · 16 November 2004

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Judgment reading view

Judgment text

The complete available source text.

Source document

Court of Appeal

Judgment· 16 November 2004

HKSAR v. WONG YIN-CHAK

bjbj ______ Before: Hon Stuart-Moore VP in Court Date of Hearing: 16 November 2004 Date of Judgment: 16 November 2004

J U D G M E N T There is no merit in the application for leave to appeal against conviction and leave is refused for this purpose. The application in relation to the sentence of four years imprisonment merits a hearing before the full court. Whilst there are no guidelines laid down for this type of offence (see: R v Lau See-kau, CACC 573/1995), this fell into a lower category of seriousness than many of its kind so that it is arguable that a three-year starting point is appropriate for someone such as the applicant with no previous conviction for blackmail and without a proven triad background. These remarks should not be taken by the applicant as an indication that his appeal will necessarily succeed. That will be for the court which hears the appeal to decide. Leave to appeal against sentence is granted. (M. Stuart-Moore) Vice-President Mr Vincent 1udk

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

R v Lau See‑kau, CACC 573/1995

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