HKSAR v. WONG YIN-CHAK
- Citation
- HKSAR v. WONG YIN-CHAK
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of Appeal
- Decision
- 16 November 2004
- 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
- Case number
- CACC126/2004
- Language
- English
More details
- Court
- Court of Appeal
- Decision
- 16 November 2004
- 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
- Case number
- CACC126/2004
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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 VincentRespondent (Crown)
RespondentAmounts and remedies
- Sentence Imposed Years: 4
- Proposed Starting Point Years: 3
03
Procedural history
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
- 01
Whether leave to appeal against conviction should be granted
- 02
Whether leave to appeal against sentence should be granted
- 03
What is the appropriate starting point for sentence in lower category blackmail cases with no prior convictions and no proven triad connection
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
Legal principles
- 01
Vice‑President Stuart‑Moore judgment 16 November 2004
Leave to appeal requires prima facie merit before being granted
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of Appeal
Judgment· 16 November 2004
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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