R. v. Yip Chi Wai and Another

CACC000161/1996

IN THE COURT OF APPEAL

1996, No.161
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer, J.A. and Stuart-Moore, J.

Date of Hearing: 4 October 1996

Date of Judgment: 4 October 1996

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. There are two applicants before the court - Yip Chi-wai, who was D1 at the trial, and CHOI Chi-ho, who was D3 at the trial. D1 faced two charges of blackmail (Charges 8 and 9) and one of claiming to be a member of a triad society (Charge 10). D3 faced four charges of money lending (Charges 1 to 4), one of claiming to be a member of a triad society (Charge 5), one of inviting a person to become a member of the triad society (Charge 6) and two of blackmail (Charges 7 and 8). Charge 8, one of the blackmail counts, was common to the two defendants.

2. The alleged offences arose out of a series of events that took place in 1994 mainly in the months of March and April and continued into the year 1995. The trial was heard in the District Court by Judge Bailey. D1 was convicted of the two blackmail charges which he faced and of one charge of claiming to be a member of a triad society. He was sentenced overall to a period of imprisonment for four years. D3 was found guilty of the four charges of lending money at excessive rate, of one of claiming to be a member of a triad society, of one of inviting a person to become a member of the triad society and of the two counts of blackmail. He was sentenced overall to a period of imprisonment of five years.

3. D1 originally appealed against both convictions and sentences but he has today offered no argument on the sentence application and that will be dismissed. D3 appeals only against his convictions.

4. It was the Crown case that the victim in this matter was a man called Leung Yun-hung. He was PW1 at trial. He gave evidence that on four occasions in March and April 1994 he borrowed money from D3 at interest rates which, according to the evidence, exceeded 360% per annum. He said that in each case the money was handed over to him outside the Rex Theatre in Mongkok and that later in the year he made partial repayments. It was his evidence that in April 1994 D3 had told him that he was of Wo Shing Wo (Charge 5), and that he introduced him to a big brother of the Wo Shing Wo who, he told him, he should follow if he wanted to obtain work (Charge 6). He said that subsequently he was introduced to a person known as Ah Kwok but that in the outcome he declined the job offered and thereafter tried to avoid D3.

5. On 23rd January 1995, D3 and others, who included D1, came to the flat where the victim lived with his mother and father. The victim said that when they came he hid and that his mother, who was PW2 at trial, spoke to them. He said that he heard D3 say that he should come out quickly and pay several ten thousands or the flat would be set on fire (Charge 7). He said that two days later he met D3 at a restaurant in Mongkok and D3 said that the debt of $180,000 which he then claimed to be owed by the victim, would be reduced to $100,000 as he and the victim were brothers. In consequence of this meeting the victim later made payments, $17,000 and of $12,000.

6. The next significant event occurred on 15th March 1995 when D3 and D1 came again to the flat of the victim's parents and demanded repayment and threatened that they would set the flat on fire.

7. On 16th May the victim said he met D3 and told him that he was unable to settle and on this date D3 said that D1 was in charge of the debt. It appears that D1 was then paged. He arrived and said that he was No.14 of the Hung Fat Shan and that unless the victim paid $100,000 there would be trouble at his flat (Charges 9 and 10).

8. At trial both D1 and D3 gave evidence in which they denied any criminal involvement. The trial judge rejected that evidence being satisfied that, insofar as it was exculpatory, none of what they said was true. Of importance was that both D1 and D3 admitted that they had gone to the victim's flat on 23rd January 1995 (Charge 7) and on 15th March 1995 (Charge 8).

9. The trial judge made the following findings:

"In the light of all the evidence, I am sure that D3 advanced the 4 loans which are the subject of Charges Nos.1 to 4 to PW1 outside the Rex Theatre, Mongkok sometimes in March or April 1994. From the agreed statements P2 and P3 I find that the effective rate of interest of these 4 loans was not less than 360%; 360%, 553% and 624% respectively. Accordingly, I am satisfied beyond reasonable doubt of D3's guilt on Charges Nos.1 to 4 inclusive and I convict him of those charges.

In the light of all the evidence, I am also sure that sometime in April 1994, D3 claimed to PW1 that he was a member of the 'Wo Shing Wo' (which I find to be a Triad Society by reference to Exh.P5) and subsequently invited PW1 to become a member when he introduced PW1 to a person 'Ah Kwong' at the Mei Ka Dou Night-club and instructed PW1 to give Ah Kwong $360 in a laisee packet he gave to PW1. Accordingly, I am satisfied beyond reasonable doubt of D3's guilt on Charges 5 and 6 and I convict him of those charges.

With respect of Charge No.7, I have found previously that on 23.1.95 D3 uttered a threat to set fire to PW2's flat if money owing by PW1 was not paid. It cannot be disputed that such a threat amounts to an unwarranted demand with menaces and a view to gain. I have found D1 was present with D3 and that D2 was present in the building but some distance from PW2's doorway.

I am sure that each of the 3 Defendants knew in advance the purpose of their visit to the home of PW1 and PW2 i.e. to secure repayment from PW1. I cannot however be sure that as at 23.1.1995, D1 and D2 knew that D3 intended to threaten to set fire to the flat if repayment was not forthcoming. It is tempting to infer such knowledge and their agreement to such a threat by later events. However, I consider that such a joint enterprise as at 23.1.1995 is not the only inference on the evidence as a whole and I give the benefit of the doubt to D1 and D2. In the light of my findings, I am satisfied beyond reasonable doubt of D3's guilty on Charge No.7 and I convict him of that charge. In the case of D1 and D2, I cannot be sure of their knowledge and intentions and accordingly I acquit them of Charge No.7.

With respect to Charge No. 8, I am sure that D3 uttered the same threat to set fire to PW1 and PW2's flat if payment was not forthcoming. Any doubts about D1's prior knowledge and agreement to such a threat could not possibly exist by the time of this second visit. The only possible inference is, and I find it as a fact that D1 acted in concert with D3 in advancing the threat and being there to intimidate the flat's occupants. I am satisfied beyond reasonable doubt of D1 and D3's guilt on Charge No.8 and I convict them both of the charge.

Charges 9, 10 and 11 concern events at the Wing Shing Restaurant on the day after the 2nd threat was made to set PW1's flat on fire. Mr. Wai for D1 and D2 has stressed the number of variations given by PW1 as to events at the Restaurant - in particular who threatened PW1, the threatened action and the precise reasons advanced for threats. Mr. Wai emphases that D1 and D2 are not charged on a basis of joint enterprise and that in his submission, PW1's evidence is such that there must be a doubt that D1 and D2 committed the particular offences with which they are charged even if threats were made and claims were made to Triad Society membership.

On the other hand, PW1's evidence was that D1 claimed that he was a member of the 14K Triad Society and did demand $100,000 from him with a threat to cause 'trouble' at his home (which under cross-examination PW1 clarified to be a threat to set fire to his flat). PW1s evidence was also that D2 did threaten to beat him up upon his (D2's) arrival at the restaurant - albeit he also gave evidence that D2 further threatened him with a beating if he refused to sign an IOU for $100,000.

In the final analysis, Mr. Wai's criticisms of PW1's evidence would be better directed at the AGC for the form of its charges rather than suggested as a basis for doubts in D1 and D2's favour. I consider it close to astonishing that D3 was not charged at all in relation to 16.5.1995. All 3 Defendants should have been charged jointly with blackmail and criminal intimidation. However D3's good fortune in this regard does not assist D1 and D2 regarding Charge Nos.9 and 11. The only inference on the available evidence is that both were parties to blackmail and criminal intimidation irrespective of who uttered the actual threats.

In the event, I find as a fact that D1 did demand of $100,000 from PW1 backed up by a threat to set fire to his house and I find D2 threatened to beat up PW1 when D2 arrived at the restaurant and this was done with the specific intent to alarm him. I am also sure that D1 claimed that he was a member of the 14D Triad Society. I do not consider it necessary to find whether he made this claim in term of 14K or Hung Fat Shan or both.

According, I am satisfied beyond reasonable doubt of D1's guilt on Charges No.9 and 10 .........."

10. D1 is represented today by Mr. Fenton who has argued two grounds of appeal. In the first he submits that the judge

"erred in unreasonably finding that the only possible inference was that D1 must have had prior knowledge and agreement with regard to Charge 8 solely because D1 was present when D3 made a similar threat on a prior occasion. This prior occasion being the subject of Charge 7 of the trial where the learned judge acquitted D1 based on lack of evidence of knowledge and intention."

11. In argument Mr. Fenton has submitted that the judge could not have properly drawn an irresistible inference from the facts. In our view this ground has no substance. The facts speak for themselves. The conclusion of the trial judge was the only one to which anyone sensibly applying his mind to them could have come. It was, in short, we are satisfied, exactly what the judge said it was, an irresistible inference which he was entitled to draw and to act upon.

12. We turn then to Ground 2 in which it is submitted that the judge

"failed to consider adequately and/or sufficiently the contradictions and discrepancies in PW1's evidence and the difference in PW1 and P.W.2's evidence when accessing their credibility and relying on PW1's evidence (in spite of the above consistencies) to convict D1 on Charges 9 and 10."

This ground falls into two parts.

13. Firstly it is submitted that the differing versions of the mother and the son as to the occasion when the flat was first visited on 23rd January 1995 certain discrepancies so gross that any judge on a proper appreciation of them must have been left in doubt as to the credibility not only of the mother but also of the son. We can only say, as we have said in similar cases, that this court is not in anything like the advantageous position of the trial judge to assess matters which rest essentially upon the credibility of witnesses. The judges sees and hears the witnesses. He is uniquely positioned to make a determination as to who should be believed. The trial judge in this case said:

"I find that PW2 was mistaken in her evidence that only herself and her husband were in the flat on the evening of 23.1.1995. I find PW1 was present and overheard D3 speaking to PW2. However, I also find that this error is not such as to undermine her general reliability and credibility as to the key events of 23.1.1995 and 15.3.1995 involving D1 and D3. I am in no doubt that D1 and D3 attended her flat on both dates and that on both occasions D3 threatened to set fire to the flat if money allegedly owing by PW1 was not paid. In this regard, I note that there was a variation between PW1 and PW2 as to precisely what form this threat took - whether it was threat to burn the flat if PW1 did not pay or if PW2 did not pay on his behalf. However, such a difference is, I find, quite immaterial and not such as to throw any doubt on the reliability of either PW1 or PW2 in this regard."

The discrepancies were clearly important matters in any consideration of credit. The judge, however, plainly had them in mind when resolving the matter. Nothing has been suggested to us that would allow us properly to interfere with his decision in that regard.

14. The second part of this ground deals with inconsistencies between the statements which the victim made to the police and the evidence which he gave in court. As to these the trial judge said:

"I have set out a summary of PW1's evidence in chief in these reasons at some length. He maintained this evidence under a thorough cross-examination by Mr. Wai and Mr. Wu. He rejected entirely D3's version of events that the loans which are the subject of Charges Nos.1 to 4 came from a person 'Wai Man' and that D3 merely acted as a guarantor for the first 2 such loans.

PW2 gave evidence of little more than 1 hour and was cross-examined for a further 5 hours. This provided me with an excellent opportunity to observe his demeanour and assess his credibility and reliability. PW2 was an impressive witness. He was quite candid in admitting that he could be mistaken as to minor matters and dates. I do not believe that he exaggerated the roles played by the various Defendants. PW1 was referred to statements he made to the Police and details of what the Defendants had allegedly said therein were contrasted with his evidence. There were differences - which PW1 accepted; such as precisely the words used by D2 to threaten him at the Wing Shing Restaurant and the words used by D1 to introduce himself as a member of the 14K. PW1 however remained firm on the essential issues.

If PW1 had a fault as a witness it was his occasional assertions that he could recall exact words used by one or the other of the Defendants. Clearly this was not always the case given the variations between his evidence and his statements. However, I find that such inconsistencies were no more that one would expect of a person attempting to recall events between 8 months and nearly 2 years ago without the benefit of notes. I am sure that I can rely on PW1 as an honest and reliable witness doing his best to give an accurate accounts of events."

15. As we have already said, credit is a matter for the trial judge and only if it can be demonstrated that he has failed properly to consider a matter of significance will this court be called upon to intervene. That certainly was not so in the present case. The trial judge was well aware of the criticisms that were made of the evidence of the victim and the suggested shortcomings in that evidence but he was, as the passage I have just read makes clear, quite satisfied that he was a witness of truth upon whose evidence he could rely. Nothing has been advanced that would allow us properly to interfere with that finding.

16. The application for leave to appeal against conviction by D1 must be refused.

17. We turn then to D3 who complains also of the discrepancies between the evidence of the victim and his mother. Addressing us today he has, in effect, repeated the evidence which he gave at trial contending that that evidence was truthful. As we have indicated that evidence was rejected by the trial judge who, having heard it, was satisfied that it was untruthful. Further, as we have already ruled, the judge considered and dealt properly with the discrepancies of which complaint is made. There is, therefore nothing in the matters that have been urged by D3 and his application for leave to appeal against conviction must also be refused.

18. The application of D1 for leave to appeal against sentence not having been pursued, we formally order that that application be dismissed.

Representation:

Mr. W.D. Moultrie, S.C.C. (Crown Prosecutors) for the Respondent.

Mr. J. Fenton instructed by Messrs. K.F. Lau & Louis Chan for the 1st Applicant (D1).

2nd Applicant (D3) in person.