HKSAR v. Tsang Fuk Wing and Another

DCCC 354/2020

[2021] HKDC 285

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 354 OF 2020

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REASONS FOR VERDICT

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1.The defendants plead not guilty to one charge of blackmailing X, contrary to section 23(1) and (3) of the Theft Ordinance[1].

2.The particulars of the charge read as follows:

“TSANG Fuk-wing and YIU Yau-pik, between the 11th day of May, 2019 and the 22nd day of May, 2019, both dates inclusive, in Hong Kong, with a view to gain for themselves or another or with intent to cause loss to another, made an unwarranted demand of a sum of money from X with menaces.”

Prosecution case

3.In summary Mr X and Mr Soo had known each other since 1965 and were ex-business partners. In July 2004 when Mr X was about to stand for public office, Mr Soo demanded money from Mr X.  Mr X paid Mr Soo to avoid any trouble which might affect his election. 

4.Mr Soo made further demands for money in 2016 and 2017.  Again to avoid trouble Mr X paid Mr Soo.  In April 2019 Mr Soo demanded further money.  This time Mr X refused to pay. 

5.On 11 May 2019 Mr Y, Mr X’s brother, was exercising near his home when he was approached by D1, D2, female Ng Hoi Yan and male Leung Ka Fai and was told to pay the money he owed to Mr Soo.  Mr Y did not know what the matter was about and informed Mr X. 

6.On 16 May D2 sent to Mr X by mobile phone a note with Mr X’s photograph titled “Notice of Missing Person” stating “It is right and proper to pay up your debt”; that Mr X was a beast in human clothing who gains fame by deceiving the public and asking anyone who sees Mr X to call AppleDaily with a generous reward on offer.

7.On 22 May D2 sent a text message accompanied by two photographs of where Mr X works telling Mr X to call otherwise the dispute would be publicised. 

8.The prosecution case is that between 11 May and 22 May 2019 D1 and D2 acted in a joint enterprise to blackmail Mr X. 

Defence case

9.The defence case in summary is that there was no blackmail and that the defendants were only passing on a message asking Mr X to contact Mr Soo about repayment of money that Mr X owed Mr Soo.    

Evidence

10.The prosecution called two witnesses Mr X (PW1) and Mr Y (PW2).  An anonymity order was made to protect the identity of Mr X and Mr Y[2].  Mr X and Mr Y gave evidence behind a screen hiding Mr X and Mr Y from the public only.  Mr X and Mr Y were also permitted to enter and leave court by a special passageway[3]. 

11.In evidence reference was made to other persons, companies and projects.  In my verdict I do not refer to the full names of these persons, companies or projects which might lead to the disclosure of the identity of Mr X or Mr Y.  

12.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[4], including the particulars of Mr X, Mr Y and Mr Soo; mobile phone numbers of D1 and D2; business documents between Mr X and Mr Soo; photographs and messages retrieved from the mobile phones of Mr X, D1 and Mr Soo; call records of D1 D2, Mr Soo and Mr X; CCTV footage of 11 May 2019 and the chain of evidence of all seized exhibits.  I will refer to the admitted facts as I review the evidence.

13.A trial bundle has been submitted to court containing all the exhibits produced. A list of exhibits and the corresponding page numbers of the trial bundle is attached to the admitted facts.

14.The defendants elected not to give evidence nor call witnesses.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt. 

15.Admitted in evidence is video footage together with a transcript of part of the conversation between D1, D2 and Y on 11 May 2019[5].

16.Records of interview of D1 and D2 have also been admitted in evidence[6].  I direct myself that the statement of one defendant is not evidence against the other defendant save where that statement is favourable to the co-defendant.  In reaching my verdict I have considered the content of the records of interview in accordance with the decision in R v Sharp[7].

17.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict, the case of each defendant being considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendants entitled to be acquitted.

18.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

Summary of the prosecution evidence

19.The background of Mr X, Mr Y and Mr Soo has been admitted[8].  Mr Soo died on 7 March 2020[9].

20.The mobile phone numbers of Mr X, Mr Soo, D1, D2 and Ng Hoi Yan have been admitted[10].  Photographs and messages retrieved from Mr X’s mobile phone, D1’s mobile phone and Mr Soo’s mobile phone have been admitted in evidence[11]. Call records between D1 and D2, Mr Soo and D1, Mr Soo and D2, D1 and Ng Hoi Yan, D1 and Mr X and the call records of D2’s number 6580 5417 have also been admitted in evidence[12].

Evidence of Mr X

21.In summary Mr X testified that he first met Mr Soo in 1965 when he was studying in university in the United States. 

1990

22.Mr X and Mr Soo entered into business involving a real estate project in Beijing (“the project”)[13]. Mr X said this was probably in 1990.  Mr X had a rather passive role whereby he did not pay attention to the usual dealings.  Mr X could not remember when the project finished only that the project dragged on for a long time.  In cross-examination Mr X thought the project finished in 2002 or 2003 but did not quite recall[14].

2004

23.In July 2004 ten to twenty people dressed in black and holding metal pipes and bamboo poles caused great nuisance outside where Mr X worked.  Mr X was of the opinion this was organised by Mr Soo because afterwards Mr Soo contacted him saying he owed Mr Soo money. 

24.Although Mr X did not owe Mr Soo any money he nevertheless paid Mr Soo to settle the matter because he did not want the incident to become a big one and as he was thinking of standing for public office later that year if Mr Soo created nuisance like this it would have a negative impact on his election. 

25.Mr X could not recall how much he paid.  After Mr X paid the money, Mr Soo gave Mr X a copy of a document, exhibit P2A, to settle Mr X’s mind.  The document refers to Mr X acting as a guarantor for a loan of USD 2.975 million made in 1996 by way of Letter of Credit.  The document, which was signed by Mr Soo as the representative of the project and the person in charge of the real estate company named in the document, stated that the loan of USD 2,975,000 had been repaid and that Mr X no longer had any legal responsibility under the guarantee. Mr X did not sign the document[15].

January 2016

26.In January 2016 Mr Soo told Mr X that while working on the project he advanced a loan of RMB 5 million to a Mr Kwok.  Mr X did not know who Mr Kwok was.  Mr Soo said as they were partners, Mr X should pay half of the loan.  Mr X asked for proof of the loan but Mr Soo was unable to produce anything.  

27.Mr X being the holder of a public office at that time did not want the matter to become big and offered to pay by three instalments of HK$1 million.  Mr X drew up an agreement in the presence of Mr Soo (exhibit P3B)[16]. After drafting the agreement Mr X told Mr Soo that in respect of the project he owed him nothing anymore. Both Mr X and Mr Soo signed the agreement. 

28.After the agreement was signed Mr Soo said the exchange rate from RMB to HK$ was not correct and that the amount should be HK$3.3 million.  Mr X paid the three instalments together with the additional $300,000.

August 2017

29.In August 2017 Mr Soo again said the exchange rate had been wrong and demanded another HK$200,000.  Mr X agreed to pay and drew up another agreement which both Mr X and Mr Soo signed (exhibit P4B) [17].

30.In the agreement Mr X asked Mr Soo to comply with two points.  First, to try his best to claim back the RMB 5 million loaned to Mr Kwok and second, that he owed nothing to Mr Soo or any other company or individual regarding the project. 

31.Mr X could not remember whether he paid the $200,000 at the time of signing the agreement or after he signed the agreement but said knowing Mr Soo’s character he thinks he had a cheque in his hand for $200,000 and therefore asked Mr Soo to sign.  Mr X paid Mr Soo $200,000.   

April 2019

32.In between 2017 and 2019 Mr X and Mr Soo seemed to be good friends.  There was a lot of correspondence with Mr Soo always asking to meet Mr X.   

33.On 9 April 2019 X and Mr Soo met in Café de Coral.  Mr Soo produced some documents saying Mr X owed him money.  Mr X replied they had signed agreements in which it was stated that they owed each other nothing.  Mr X did not listen anymore and left the restaurant. 

11 May 2019

34.Both Mr X and Mr Y, X’s brother, testified about the events of 11 May 2019.  Mr X’s evidence is based on what Mr Y told him.  I will therefore summarise Mr Y’s evidence first. 

Mr Y’s evidence

35.In summary Mr Y testified that on 11 May 2019 at around 7:30 a.m. he left home to play basketball.  Mr Y walked to the park to play basketball.  The walk took about three to five minutes. 

36.When Mr Y left home he saw a white car stopped at the entrance of his home.  A middle aged man was standing at the intersection of the road looking at Mr Y’s home.  Mr Y provided to the police a photograph of this man (exhibit P19)[18].  Admitted in evidence is that the male in the photograph is D1[19].

37.Mr Y walked directly to the park without looking at D1.  In cross-examination Mr Y agreed that D1 did not try to conceal or hide his presence[20].

38.After playing basketball for around half an hour Mr Y sat down and had a rest.  While having a rest Mr Y’s driver called and informed Mr Y that while he was walking to the basketball court someone followed him.  The driver told Mr Y to be careful and asked if Mr Y needed to be picked up for safety sake.  Mr Y said there was no need and that he would walk back home but asked the driver to wait for him at a nearby intersection so he could get on the car if there was any danger[21].

39.When Mr Y was at the entrance of the park and started to walk home two males and one female came from behind and approached him.  Mr Y took photographs of these two men (exhibits P20 and P21).  Admitted in evidence is that the male in photograph, exhibit P20, is D2 and the male in photograph, exhibit P21, is Leung Ka Fai[22].

40.D2 asked Mr Y if his surname was Y/X.  Mr Y replied yes and asked what the matter was.  D2 replied that Mr Y had a schoolmate who had entrusted him to look for Mr Y to tell Mr Y that he owed the schoolmate money.  D2 did not say the name of the schoolmate therefore Mr Y asked for the name.  D2 gave the surname So. Mr Y said he did not know a schoolmate called So and asked for the full name. D2 said he did not know as well.  D2 made a phone call and then gave the full name.  D2 continued and said he has said the name wrong and gave the name again with the last character corrected[23]. Mr Y said he did not know this name[24].

41.At that moment D1 appeared and said we just help to bring a verbal message; we happen to pass by; we are just helping a friend who was seriously sick and was in need of money; Mr Y owed the friend money and the friend had asked them to come and get the money. 

42.Mr Y thought they were just trying to cheat him and that it was some kind of scam. Mr Y walked home and paid no more attention to them.  D1, D2, the third man and the female followed Mr Y all the way home repeatedly explaining they just happen to pass by and were helping a friend saying it had nothing to do with them.  D1 sometimes went to the opposite side of the road or walked a bit away.  Mr Y felt quite uncomfortable when they followed him home. 

43.In re-examination Mr Y said that he did not know D1, D2, the third man or the female and that they did not give their names. 

44.Admitted in evidence is CCTV footage (exhibit P15) together with a sketch showing the position of the cameras (exhibit P15A) and still photos from the CCTV footage together with their accurate descriptions (exhibit P15B)[25]. 

45.The CCTV footage shows:

(a)  between 07:37:42 and 07:38:16 D1 crossing the road from opposite Mr Y’s home, walking past the home and crossing back to the opposite side of the road (camera 6);

(b)  Mr Y leaving his home at 07:40:05 (camera 6), crossing the road and walking to the park (cameras 5 & 6)[26];

(c)  from 07:41:18 female Ng Hoi Yan following Mr Y (cameras 5 & 6);

(d)  between 07:44:27 and 07:46:46 D1 walking in the direction of the park and then turning back and walking in the direction of Mr Y’s home (cameras 5 & 6);

(e)  from 08:16:45 D1 walking from opposite Mr Y’s home in the direction of the park (cameras 5 & 6);

(f)  at 08:30:18 D2 and male Leung Ka Fai walking in the direction of the park (cameras 5 & 6);

(g)  from 08:38:20 Mr Y walking home followed by D1, D2, Ng Hoi Yan and Leung Ka Fai (cameras 5 & 6); and

(h)  at 08:41:30 Mr Y arrives home (camera 6).

46.Also admitted in evidence is video footage (exhibit D1) showing part of the conversation between D1, D2 and Y together with an accurate transcript (exhibit D1A)[27]. The video footage was played in court to Mr Y.  The footage comprises of two clips.  A transcript of the conversation between the parties has been admitted in evidence (exhibit D1A)[28]. The times in the transcript refer to the length of the footage.  Mr Y confirmed the first clip was at the entrance of the park and the second clip was at the entrance of his residence. 

47.In the second clip at 01:04 Mr Y is heard saying he will make a report to the police. Mr Y did not in fact make a report to the police because he thought the police might not know why he made a report and instead asked his brother how to deal with the matter.  Mr Y was able to contact Mr X, who was in Japan, and told Mr X what had happened.

Mr X’s evidence

48.On 11 May 2019 Mr X was travelling in Japan when he received a phone call from Mr Y. Mr Y told Mr X that several suspicious figures were waiting for him at the entrance of their home; two people followed him to the park; after finishing exercise and about to walk home those two people approached him asking if he was Mr X/Y and said they were delivering a message that his schoolmate was sick and asked for money for treatment.  When Mr Y said the name of the schoolmate was Mr Soo, Mr X told Mr Y to wait until he returned to Hong Kong.  Mr X returned to Hong Kong on 14 May 2019. 

15 May 2019

49.Mr X received a lot of calls on his mobile phone from people he did not know.  In the afternoon Mr X sent a SMS to Mr Soo telling him that his old habits die hard and that doing things like triad members would not benefit him. 

50.Mr X identified this message as message 58, exhibit P13, retrieved from the mobile phone of Mr Soo[29]. Mr X said if he did not receive an apology from Mr Soo by 5 p.m. the next day he will call the police.    

16 May 2019

51.Mr X received many messages he did not understand, some with text, some with photographs, some with a notice of finding a missing person and some with threatening words. 

52.Mr X did not receive a reply from Mr Soo.  Instead at 5 p.m. Mr X received from 6580 5417 an image of a note titled “Notice of Missing Person” which showed Mr X’s face (exhibit P5)[30]. Mr X did not know the user of 6580 5417.  Admitted in evidence is that 6580 5417 is the mobile phone number of D2 and that D2 sent the image[31]. 

53.Mr X was sure that the sender was told by Mr Soo to do this.  Asked why he was so sure Mr X replied, “Because I don’t have disputes such as this with other people and others won’t threaten me like this with means like a triad member.”

54.The note stated “It is right and proper to pay up your debt”.  The only dispute Mr X could think of was the project but they had both already made clear they owed each other nothing.  

55.Mr X did not know the number mentioned in the note 6383 6568.  Admitted in evidence is that 6383 6568 is the hotline of AppleDaily News[32].

56.After receiving the note Mr X felt that he had to make a report to the police because of what happened on 11 May outside the entrance of his home which affected his family and that he could no longer take Mr Soo cheating him time after time. 

57.Admitted in evidence is that on 15 May 2019, the day before, 6580 5417 called Mr X twice[33].  Mr X did not think he had any interaction with the caller and explained his habit was that he would not answer the call if he did not know the number. 

22 May 2019

58.Mr X received a text message from 6580 5417 on 22 May 2019.  Admitted in evidence is that D2 sent the message (exhibit P6)[34].   Mr X immediately telephoned the inspector that he had received the message because the inspector had told Mr X that if they continued to disturb him he was to call him. 

59.The message referred to the loan of RMB 5 million to Mr Kwok and the deception of Mr Soo’s shares.  Mr X said these two matters were just excuses used by Mr Soo to cheat him because he had resolved all this with Mr Soo. 

60.Two photographs accompanied the message (exhibits P7 and P8).  The photographs were of the entrance to the building where Mr X worked and the alley next to where his office was.  Mr X thought that the sender was letting him know they knew where his office was so as to threaten him. 

61.Mr X did not know the name Cheung mentioned in the message next to the number 6580 5417.

Arrest

62.Admitted in evidence is that D1 was arrested for blackmail on 23 May 2019; at the time of arrest D1 was in possession of three mobile phones and was the sole user of mobile phone numbers 9345 1000, 5100 2261 and 6215 6721[35].

63.Admitted in evidence is that on 23 May 2019 D2, upon hearing the police were looking for him, reported to the police the same day when he was arrested for blackmail; at the time of arrest D2 was in possession of two mobile phones and was the sole user of mobile phone numbers 6636 6188, 6580 5417 and 9667 7159[36].

Records of interview, exhibits P16, P17 & P18

64.Admitted in evidence are two records of interview of D1 conducted by DPC 6758 on 23 May 2019 (exhibits P16 & P17)[37] and one record of interview of D2 conducted by DPC 8025 on 23 May 2019 (exhibit P18)[38].

D1

Exhibit P16 (09:15 to 11:45)

65.DPC 6758 first post-recorded the course of arrest and that under caution D1 said, “On that day, I just helped a friend to inform Mr X to settle the debt” (pages 1-3).

66.DPC 6758 then made enquiries asking D1 to explain what he said under caution.  D1 answered that a friend from Macau called Peter asked him to help his friend Mr Soo to find Mr X to contact Mr Soo about repaying a debt and say that Mr Soo was sick (answers 1 & 3).  D1 agreed and helped voluntarily without receiving any money or reward (answers 1, 2 & 25). 

67.D1 was not very clear about the amount of the debt but heard Mr X owed Mr Soo about five million dollars (answer 2).  Peter had showed D1 a payment record in which Mr X had paid $700,000 (answer 28).

68.Peter gave the address of Mr X to D1.  D1 went to the address of Mr X early on 11 May 2019 by driving private car ES 1333 (answers 3, 5, 6, 7 & 25).  D1 described the clothes he was wearing (answers 8 & 41).  D1 asked his friend D2 to go with him and D2 asked two friends to go as well, female Ng Hoi Yan and a male, (answers 4, 9, 10 & 11). 

69.D1 waited for D2 and his two friends to arrive.  After they arrived they waited for Mr X, who was inside his home.  They then went over to inform Mr Y to contact Mr Soo to repay the debt.  No threats or blackmail was mentioned.  D1 then left in his car with Ng Hoi Yan and D2 left with the male on foot (answer 25).

70.D1 did not have the means of contact of Peter who lived in Macau and who would contact D1 every time (answers 23 & 24).  D1 did not meet Peter again after this incident (answer 28).

71.D1 had three phone numbers 9345 1000, a prepaid SIM card but could not remember the number and 5100 2261 which was also a prepaid SIM card which he had discarded about a week ago (answers 29-31 & 39). 

72.D1 and Mr Soo were just very ordinary friends.  D1 had met Mr Soo once, several months before when Peter arranged to meet for yum cha.  D1 was not very familiar with Mr Soo and did not have his means of contact (answers 18-22).  Later in the interview D1 said Mr Soo had called him on 9345 100 to talk about horse racing (answer 33) and Mr Soo used telephone number 9101 4653 (answer 37).

73.D1 did not know Ng Hoi Yan or the male (answers 12-17).  D1 did not know telephone number 6728 6418 (answer 34)[39].

74.This was the only time D1 met Mr Y (answer 26).  D1 did not have Mr X’s telephone number(answer 27).  On 3 May 2019 Peter had used his phone 9345 100 to call Mr X’s number but did not know the conversation (answer 32)[40].

75.D1 knew nothing about the text message, “Notice for missing Person”, sent at 5 p.m. on 16 May 2019 to Mr X from phone number 6582 5417 (answer 40)[41].

Exhibit P17(13:20-14:45)

76.Later the same day DPC 6758 conducted a second interview in which D1 was asked about his mobile phones.  Admitted in evidence is that on arrest D1 was in possession of three mobile phones[42]. D1 identified the three mobile phones (answer 1). 

77.Admitted in evidence are images shown to D1 during the interview (exhibits P10, P11 & P12)[43]. Admitted in evidence is that the images were retrieved from D1’s mobile phone number 9345 1000[44]. The images are also annexed to the interview and are referred to in the interview as three photographs.

78.The first photograph of Mr X’s residence was taken by D1 on 11 May 2019 as a record while waiting for Mr X (answer 2). 

79.The second photograph of Mr X which was automatically saved on the mobile phone at 6:13 p.m. on 14 May 2019 was sent to D1 from a number D1 did not know and who did not explain why the photo was sent.  D1 did not intend to help Peter or Mr Soo anymore and therefore ignored the photograph (answer 3).

80.The third photograph also of Mr X and showing several pieces of paper telling Mr X to repay the debt; saying he is a liar and a swindler and warning people to be aware of this man, was sent to D1 by D2.  D1 paid no attention to the photograph and did not ask D2 why he sent the photograph.  D1 did not send the photograph to anyone (answer 4).

81.D1 identified telephone numbers 9667 7159 and 6636 6188 were the telephone numbers of D2 (answer 5).

82.Asked again to tell in detail what was said to Mr Y, D1 answered that the four of them met Mr Y at the entrance of a park but as he stood the furthest away he could not hear what was said and was only told after Ng Hoi Yan boarded his car.  D1 had told them beforehand what to say (answers 6 & 7).

D2

Exhibit P18 (16:38-20:43)

83.DPC 8025 first post-recorded the course of arrest and that under caution D2 said, “I did not blackmail them” (pages 1-2).

84.DPC 8025 then made enquiries asking D2 where he was at 8:10 a.m. on 11 May 2019.  D2 answered that D1 asked him together with Ng Hoi Yan and male Ka Fai to look for Mr X and pass on a message to Mr X to contact Mr Soo for money repayment (answers 2, 8 & 23) [45].

85.D2 walked past the vicinity where Mr X lived.  When a male came out, who they thought was Mr X, D2 approached and passed on the message after which he left (answers 3, 24 & 26).  D2 did not know Mr X and had heard from Mr Soo that Mr X owed him five million dollars or so (answers 24 & 25).

86.D2 voluntarily helped without receiving any money or reward because D1 had promised a friend called Ah Lam, who was Macanese, to pass on a verbal message (answers 23 and 36)[46].

87.D2 described the clothes he was wearing which he threw away after they became soiled (answer 9). 

88.D2 came to know D1 when playing video games in 2016 (answers 10-12 & 21). D1’s phone numbers were 9345 1000 and 5100 2261 (answers 10 & 19). 

89.D2 was not well acquainted with Ng Hoi Yan whose phone number was 6728 6418 (answers 13 & 21).  D2 only knew the male as Ka Fai whose phone number was 5115 6751 (answers 14-15 & 22).  Admitted in evidence is that Ka Fai is Leung Ka Fai who is seen in photograph exhibit P21[47].

90.D2 had met Mr Soo twice in early May through the introduction of D1.  The phone number of Mr Soo was 9101 4653 (answers 16-18). 

91.D2 used phone number 6580 5417 to call Mr X whose number had been given to him by Mr Soo (answers 27-29).  D2 also used phone number 6580 5417 to send a message to Mr X about repaying the debt (answers 30 & 31)[48]. 

92.When Mr Soo told D2 that Mr X had not replied D2 took photographs outside where Mr X works and then sent another message (answers 32-35).  D2 helped to send the messages because Mr Soo was old with numerous health problems and had no one else to help him (answer 36).

Discussion

93.I have carefully considered all the evidence and the submissions of Mr Simon Kwong, Mr Donald and Mr Paul Kwong[49].

94.In considering the evidence, I take into account that Mr X testified about events which occurred as far back as 1990.

95.I take into account Mr Soo passed away on 7 March 2020 and is therefore not available as a witness for the defence.  I direct myself as to the impact of the death of Mr Soo on the conduct of the defence[50].

Defence evidence

96.The defendants, having elected not to give evidence nor call witnesses, rely on the explanations given on arrest and in records of interview which I have already summarised[51].

D1

97.D1’s case as told to the police is that on 11 May 2019 he was only helping a friend to find Mr X to pass on a message to contact Mr Soo about repaying a debt; he helped voluntarily without receiving any money or reward; he didn’t say anything relating to threats or blackmail and that he had no further involvement after 11 May 2019[52].

98.I do not find D1’s explanations credible, for example I do not find credible that on 11 May 2019 D1 was just helping to pass on a message voluntarily without reward. As summarised earlier the CCTV footage shows that D1 was outside Mr Y’s home when Mr Y left to go to the basketball court at 07:40[53].  D1 did not pass on the message, instead Mr Y was followed by Ng Hoi Yan.  Only after D2 and another male arrived about forty-five minutes later was Mr Y stopped as he was leaving the basketball court.  If D1 was only helping to pass on a message, there was no need for Mr Y to be followed and approached by four persons. 

99. I do not find credible D1’s explanation that he did not know Ng Hoi Yan, did not have her means of contact and did not know telephone number 6728 6418 (answers 12 & 34, exhibit P16). 

100.Admitted in evidence is that telephone number 6728 6418 is the mobile phone number used solely by Ng Hoi Yan[54]. Admitted in evidence are the call records between D1’s number 9345 1000 and Ng Hoi Yan’s number 6728 6418 for the period 5 to 17 May 2019[55].   The call records show telephone calls between D1 and Ng Hoi Yan on 9 May and 10 May 2019 and that between 06:45 and 07:04 on 11 May 2019, just prior to D1 being seen outside Mr Y’s home, D1 called Ng Hoi Yan four times.

101.Admitted in evidence is that seven photographs of Mr X (exhibit P11) were found on D1’s mobile phone having been last updated at 18:13 hours on 14 May 2019[56]. 

102.I do not find credible D1’s explanation that the photographs of Mr X (exhibit P11) were sent by a number he did not recognise; the sender did not explain why the photographs were sent and that he did not intend to help anymore and therefore ignored the photographs (answer 3, exhibit P17).

103.Admitted in evidence is that six images of a note “It is right and normal to pay up your debt” (exhibit P12) were found on D1’s mobile phone having been last updated at 08:20 and 08:21 hours on 15 May 2019[57]. 

104.I do not find credible D1’s explanation that he paid no attention to the photograph of the note “It is right and normal to pay up your debt” (exhibit P12) and that he did not ask D2 why he sent the photograph because he no longer paid attention to the matter about Mr X (answer 4, exhibit P17).

105.Admitted in evidence is that D2 sent an image of a note titled “Notice of Missing Person” to Mr X at 17:00 hours on 16 May 2019 (exhibit P5)[58].   The note showed a photograph of Mr X which is the same as the photograph found on D1’s mobile phone (image 9, exhibit P11).  The content of the note is similar to the content of the notes “It is right and normal to pay up your debt” (exhibit P12) found on D1’s mobile phone.

106.In addition, the telephone records show contact between D1, D2 and Mr Soo before D2 sent the note (exhibit P5) to Mr X at 17:00 on 16 May 2019, including that:

(i)  D1 called Mr Soo on 14 May, 15 May and 16 May[59];

(ii)  on 15 May 2019 Mr Soo sent an SMS message to D1 at 11:01 giving D1 the phone number of Mr X[60];

(iii)  on 16 May D2 called D1 twice at 15:54 and 15:56[61];

(iv)  D1 then called Mr Soo at 15:57 which call lasted 381 seconds, just over 6 minutes; and

(v)  after calling Mr Soo at 15:57 D1 called D2 twice at 16:04 and 16:12;

The image of a note titled “Notice of Missing Person” (exhibit P5) was sent by D2 to Mr X 48 minutes later at 17:00[62].

107.I am satisfied no weight is to be attached to D1’s explanations in the video recorded interviews, which explanations were not made on oath, have not been repeated on oath and have not been tested by cross-examination[63]. 

D2

108.D2’s case as told to the police is that he did not blackmail; he helped to pass on a message to Mr X to contact Mr Soo for money repayment; he helped voluntarily without receiving any money or reward; D1 sent him the message on 16 May and asked him to forward the message to Mr X[64]; he sent the message on 22 May to remind Mr X to contact Mr Soo and that he helped Mr Soo because Mr Soo was old with numerous health problems and had no one else to help him[65].

109.I do not find D2’s explanations credible, for example I do not find credible D2 was just helping to pass on a message for no reward.  If D2 was only helping to pass on a message, there was no need for Mr Y to be followed and approached by four persons outside a basketball court. 

110.I do not find credible D2’s explanation that he sent the message on 22 May simply to remind Mr X to contact Mr Soo. 

111.The images sent by D2 to Mr X on 16 May (exhibit P5) and 22 May 2019 (exhibit P6) were not messages simply asking Mr X to contact Mr Soo for money repayment.  The image sent on 16 May was titled “Notice of Missing Person” with a photograph of Mr X.  The image sent on 22 May purporting to be from a company showed two photographs of where Mr X worked. 

112.Further, the image sent on 22 May invited Mr X to think twice and to ring the company for mediation.  The telephone number of the company was stated to be ‘65805417 Cheung’. 

113.Admitted in evidence is that both messages were sent by D2 from telephone number 6580 5417; D2 was the sole user of 6580 5417 which was a pre-paid SIM card and was activated on 15 May 2019[66].

114.D2’s name is Yiu Yau Pik not Cheung.  The call records of 6580 5417 from the date of activation to 17 May 2019 show that there were only two phone calls made on 15 May when D2 called Mr X.

115.If D2 was only helping to pass on a message to remind Mr X to contact Mr Soo for money repayment, there was no need to send these kind of messages or for D2 to use a newly activated SIM card and use the name Cheung instead of his real name.    

116.I am satisfied no weight is to be attached to D2’s explanations in the video recorded interview, which explanations were not made on oath, have not been repeated on oath and have not been tested by cross-examination[67]. 

117.I remind myself that the rejection of defence evidence is not determinative of the issues in the case.  The defendants have to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Credibility

118.Both Mr Donald and Mr Paul Kwong submit Mr X is not a credible witness[68]. 

119.At the beginning of cross-examination Mr X said that he produced exhibits P2A, P3B and P4B to the police to show that in relation to the project he and Mr Soo owed each other nothing.   Mr Paul Kwong then cross-examined Mr X at length about his shareholdings in two companies and with regard to a 2003 High Court Action (“HCA”) in which Mr Soo was the plaintiff and Mr X was one of six defendants[69]. 

Shareholdings in two companies

120.In summary Mr X said the operation of the project was done by Mr Soo who might have opened a lot of companies; he had heard of the two companies referred to by Mr Paul Kwong; could not remember what his shareholdings were in the two companies in 2003 as this was eighteen years ago; had absolutely no recollection that RMB 103,350,000 was contributed by the shareholders[70]; did not recall that the share capital in the companies was increased by 100,000 new shares; it was not possible that Mr Soo’s shares were diluted from 60% to 0.6%; disagreed that after share capital was increased the value of the shares in one of the companies was in the region of RMB 180 million; could not recall that the shares in one of the companies were sold; disagreed that Mr Soo was entitled to receive RMB 31 million as his return of the investment on the sale of the shares and denied that he conspired to cheat Mr Soo out of his proceeds of the sale of the shares[71].

High Court Action (“HCA”)

121.In summary Mr X said he could not recall if he filed a defence in the HCA action only that the end result was the action was settled and Mr Soo withdrew the case; he should have received a Notice of Discontinuance but could not produce the notice because he regretted having dealings with Mr Soo and destroyed all correspondence relating to the project[72]; could not remember clearly what he was sued for; could not remember clearly the terms of settlement and how much he paid Mr Soo; disagreed there was never any settlement of the action[73]; agreed Mr Soo also sued him in Mainland China but said Mr Soo failed and sued again in Hong Kong; disagreed he did not pay Mr Soo money to settle the action; disagreed that settlement involved intervention of his elder sister and disagreed that he kneeled before Mr Soo in the High Court building begging Mr  Soo to settle saying he did not even know where the High Court building was[74].

Exhibit P2A

122.Mr Kwong and Mr Donald both cross-examined Mr X about exhibit P2A[75]. 

123.In summary, in answer to Mr Paul Kwong, Mr X recalled that he was only given a copy; did not pay attention to whether the document was dated when given to him by Mr Soo; only realised a few days before coming to court, when he reviewed the documents, that P2A was undated; did not know why the other parties named in the document did not sign; the name of the project was just a marketing name and that the real estate company named in the document owned the project and was the parent company of all the other companies named in cross-examination by Mr Paul Kwong and he did not have a copy of the guarantee. 

124.In summary, in answer to Mr Donald, Mr X said that although he had destroyed all the documents relating to the project he kept exhibit P2A because this was given to him personally by Mr Soo after all matters had finished; P2A was the only document he kept relating to the project; he could not be sure if he saw the original; he did not ask Mr Soo to draft the document; disagreed that the signature of Mr Soo on P2A was different to the signatures of Mr Soo on exhibits P3B and P4B; he was not called upon to pay money under the guarantee; he believed the document was connected to the HCA and to the payment of money after the July 2004 incident and that he produced the document to the police in 2019 as an example of Mr Soo extorting money from him, the document having only been given to him after he paid Mr Soo money.

125.In my view it is not surprising Mr X can no longer remember the details of what happened in 2003/2004 including his shareholdings in various companies and the HCA.   

126.The fact that Mr X cannot remember the details of events many years ago and destroyed the documents relating to the project does not cause me to doubt Mr X’s evidence about events which occurred in 2016, 2017 and 2019.

127.I am satisfied so I am sure Mr X is an honest witness who gave credible and reliable evidence.  I accept the evidence of Mr X.  I also accept the evidence of Mr Y, which was not challenged.

Blackmail

128.A person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes an unwarranted demand with menaces. To convict the court must be sure that:

1)  a demand was made;

2)  the demand was made with menaces;

3)  the demand was an unwarranted demand; and

4)  the demand was made with a view to gain or with intent to cause loss to another[76].

129.The prosecution case is that between 11 May 2019 and 22 May 2019 the defendants with a view to gain for themselves or another or with intent to cause loss to another, made an unwarranted demand of a sum of money from Mr X with menaces, which demand the prosecution say was continuous throughout this period[77].

130.Mr X testified that he owed nothing to Mr Soo or in connection with the project. Mr Paul Kwong submits that the prosecution cannot establish beyond all reasonable doubt that Mr Soo did not have a civil claim against Mr X for money he alleged Mr X owed him[78].

131.I accept Mr X’s evidence that he played a passive role in the project; Mr Soo’s action in Beijing failed; the HCA was settled and that he owed no money to Mr Soo or in connection with the project.

Demand

132.In considering whether a demand for money was made on 11 May, 16 May and 22 May this is to be viewed in the context that on 9 April 2019 Mr Soo said Mr X owed him money and that Mr X refused to pay[79].

133.I accept the evidence of Mr Y that on 11 May 2019 he was told by both D1 and D2 that he owed money[80]. D2 is also heard on the video footage (exhibit D1) telling Mr Y to repay the money.

134.For the reasons already given I reject the defendants were just passing on a message telling Mr X to call Mr Soo.  D1 did not pass on the message when he first saw Mr Y leave home, instead Mr Y was followed and only after forty-five minutes was Mr Y stopped as he was leaving the basketball court.  If the defendants were only helping to pass on a message to Mr X to call Mr Soo, there was no need for Mr Y (mistaken to be Mr X) to be followed and approached by four persons. 

135.I am satisfied so I am sure a demand for money was made on 11 May 2019 which demand was repeated in the messages sent to Mr X by D2 on 16 May 2019 (exhibit P5) and on 22 May 2019 (exhibit P6)[81].

Menaces

136.Mr Donald submits that on 11 May 2019 there was no threats or menaces[82].  Mr Paul Kwong submits that Mr Y was in no way threatened and that no menace was intended by sending the messages to Mr X on 16 May and 22 May 2019 or can be objectively understood as such[83].

11 May 2019

137.In cross-examination by Mr Donald, Mr Y agreed that when he first saw D1 that D1 did not try to conceal or hide his presence; agreed that the defendants were polite and when asked if they were not threatening in anyway, Mr Y replied “Not really because I told them that if you are like that, it amounts to threatening, I would report to the police”.

138.In cross-examination by Mr Kwong, Mr Y agreed that D2 was cooperative; that D2 stood still to allow Mr Y to take a photograph of him and agreed that D2 did nothing to hide his face and identity. 

139.This was not simply a request to call Mr Soo.  Mistaking Mr Y for Mr X, Mr Y was followed to the basketball court.  About forty-five minutes later Mr Y was stopped as he was leaving the basketball court.  Mr Y was stopped by four persons, including D1 and D2.  I accept Mr Y’s evidence that he instructed his driver to wait nearby so he could get on the car if there was any danger and that he felt quite uncomfortable when they followed him home[84].

140.If all the defendants were to do was pass on a message to Mr X to call Mr Soo there would be no need for Mr Y to be followed and approached by four persons.  I am satisfied so I am sure Mr Y, believed to be Mr X, was approached in this way so as to put pressure on Mr X to pay money to Mr Soo. 

141.Mr X clearly perceived this as a threat.  In his SMS message sent to Mr Soo on 15 May 2019 Mr X had asked Mr Soo to apologise for sending gangsters to his home to threaten him (SMS message 58, exhibit P13). 

142.In cross-examination Mr Donald asked Mr X about his use of ‘gangsters’:

Q. …. We go to your No. 58 SMS where you talk about three gangsters instructed to threaten you at the doorstep of your home, which is completely wrong?

A. I don’t understand what is incorrect?

Q. Where did you get the ‘gangsters’ from?

A. I think they were ‘gangsters’.

Q. In your mind you say you thought they were ‘gangsters’?

A. That’s my feeling. That’s how I felt. Whether or not you agree or disagree it is up to you.

Q. And threatened you, where’s the threat? Urging you to contact Mr So, where is the threat?

A. If that’s not the case Mr Soo could have typed a SMS to me and then you would have item 1 to item 60 on your list. How come he didn’t write one to me?

Q. Mr So was a sick man, he was dying, you knew that?

A. First of all, I have absolutely no knowledge of his situation.

143.I am satisfied so I am sure by going to the home of Mr X in the early morning, following Mr Y and four persons approaching Mr Y, this amounts to menaces.  The fact the defendants did not utter any threats and allowed their photographs to be taken does not cause me to doubt this finding.

16 May 2019

144.In my view it is no coincidence that the message was sent to Mr X at 5 p.m. on 16 May 2019.  In his SMS message sent to Mr Soo on 15 May 2019 asking for an apology Mr X said if Mr Soo did not apologise by 5 p.m. on 16 May he would call the police and seek their protection (SMS message 58, exhibit P13). 

145.D2 was aware of the message sent by Mr X to Mr Soo because Mr Soo forwarded the message to D2 thirty minutes after he had received the message (SMS message 59, exhibit P13)[85].

146.I am satisfied so I am sure the message sent to Mr X by D2 on 16 May 2019 (exhibit P5) titled “Notice of Missing Person” in which Mr X’s photograph appears, Mr X is described as a beast who deceives the public and for the public to call 6383 6568, the number of AppleDaily, was sent to Mr X to further pressure Mr X to pay money to Mr Soo.

147.Mr X clearly perceived this as a threat because after receiving the note he made a report to the police[86].

148.I am satisfied so I am sure the sending of the message amounts to menaces. 

22 May 2019

149.I am satisfied so I am sure the message sent to Mr X by D2 on 22 May 2019 (exhibit P6) in which photographs of where Mr X worked were attached and stated that if Mr X did not call “the company” the message would be forwarded to the media, was also sent to Mr X to further pressure Mr X to pay. 

150.Mr X clearly perceived this as a threat because he immediately telephoned the inspector who had told him to call if they continued to disturb him.  I accept Mr X’s evidence that he thought the sender was letting him know they knew where his office was so as to threaten him[87].

151.I am satisfied so I am sure the sending of the message amounts to menaces.  I agree with the submission of Mr Simon Kwong that  the three incidents individually and cumulatively constitute sufficient menaces for a charge of blackmail[88].

Unwarranted demand

152. A demand with menaces is unwarranted unless the person making it does so in the belief (a) that he has reasonable grounds for making the demand and (b) that the use of the menaces is a proper means of reinforcing the demand.

153.It is for the defence to raise the issue that the defendant believed he had reasonable grounds for making the demand and that the use of the menaces was a proper means of reinforcing the demand.  Once the issue has been raised it is for the prosecution to prove beyond reasonable doubt that the defendant had no such belief. 

154.Neither defendant has testified that he believed he had reasonable grounds for making the demand and that the use of the menaces was a proper means of reinforcing the demand.  In oral submission Mr Paul Kwong submitted that the issue was raised for example through the content of the record of interview of D2 (exhibit P18), cross-examination of Mr X and the documentary exhibits.  For the reasons already given I attach no weight to the explanations given in the records of interview of D1 and D2[89].

155.Mr Paul Kwong submits that the defendants were acting as agents for Mr Soo and that the matter of authorisation was raised in the SMS messages exchanged between Mr X and Mr Soo (exhibit P13)[90].

156.Mr Paul Kwong specifically refers to message 45 in which the sender writes “Mr Soo, send the authorization that you wrote again.”[91]  The message was sent by HK Lum using telephone number +852 5981 0853.  Apart from the SMS messages, the only other reference to this number in the evidence is in the record of interview of D2 (exhibit P18) where D2 says the number is the number of a Macanese called Ah Lam, for who D1 had promised to locate Mr X and pass on the message to Mr X[92]. No authorization has been produced to court.

157.I reject that D1 believed he had reasonable grounds for making the demand.  I reject that D2 believed he had reasonable grounds for making the demand.  The reference to authorization in a SMS message does not cause me to doubt this finding.

158.Even if the defendants were authorised to make the demand I reject that D1 believed that the use of the menaces was a proper means of reinforcing the demand.  I reject that D2 believed that the use of the menaces was a proper means of reinforcing the demand.

159.If this was a genuine debt or believed to be a genuine debt by the defendants, there would be no need for the defendants to go to the home of Mr X in the early morning, for Mr Y to be followed and approached by four persons and no need to send these kinds of messages. 

160.If this was a genuine debt or believed to be a genuine debt, there would be no need for D2 to use a telephone number which had just been activated to send the messages and for D2 to use a false name Cheung in the message sent on 22 May 2019.

161.I am satisfied so I am sure that the demand made on 11 May 2019 and repeated in the messages sent on 16 May and 22 May 2019 was unwarranted and that the defendants both knew the means employed by going to the home of Mr X and following Mr Y, believing he was Mr X, and sending the messages were not proper means of reinforcing the demand[93].

With a view to gain

162.For the reasons already given I reject the defendants were acting without reward[94].  I am satisfied so I am sure that the demand was made with a view to gain for themselves and for Mr Soo.

Joint enterprise

163.Mr Donald submits there is no evidence that D1 knew or had any knowledge of the two messages sent by D2 to Mr X (exhibits P5 and P6); no evidence D1 sent the images to anyone else or that he had any involvement or input in the messages[95].

164.In making this submission Mr Donald refers to the explanations given by D1 in the video recorded interviews (exhibits P16 and P17).  For the reasons already given I attach no weight to the explanations of D1[96].

Exhibits P11 & P12

165.Admitted in evidence is that seven photographs of Mr X (exhibit P11) were found on D1’s mobile phone having been last updated at 18:13 on 14 May 2019[97] and that six images of a note “It is right and normal to pay up your debt” (exhibit P12) were found on D1’s mobile phone having been last updated at 08:20 and 08:21 hours on 15 May 2019[98].

166.Image 9, exhibit P11 is the same photograph which is on the image of the note sent by D2 to Mr X at 17:00 hours on 16 May 2019 (exhibit P5).  The content of the note sent by D2 is similar to the content of the notes “It is right and normal to pay up your debt” found on D1’s mobile phone (exhibit P12). 

167.In my view it is no coincidence that the same photograph and similar content of the image of the note sent by D2 to Mr X (exhibit P5) was found on D1’s mobile phone prior to D2 sending the image of the note to Mr X.

168.Further, the telephone records show that D1 was in contact with D2 and Mr Soo before D2 sent the note to Mr X at 17:00 hours on 16 May 2019.  D1 called Mr Soo on 14 May, 15 May and 16 May[99].

169.On 15 May 2019 Mr Soo sent an SMS message to D1 at 11:01 giving D1 the phone number of Mr X[100]. At 13:31 and 14:30 the same day D2 called Mr X on the number given by Mr Soo to D1[101]. D2 used telephone number 6580 5417 which had been activated that day[102].

170.On 16 May 2019 prior to D2 sending the note to Mr X at 17:00 hours, D2 called D1 twice at 15:54 and 15:56[103]. D1 then called Mr Soo at 15:57 which call lasted 381 seconds, just over 6 minutes.  D1 then called D2 twice at 16:04 and 16:12. The image of a note titled “Notice of Missing Person” was sent by D2, using telephone number 6580 5417, to Mr X 48 minutes later at 17:00.

171.Although there is no evidence linking D1 with the image sent by D2 to Mr X on 22 May 2019 (exhibit P6) [104], having carefully considered all the evidence and taking into account D1 on his own admission arranged D2 to go with him on 11 May[105]; told D2, Ng Hoi Yan and the other male what to say[106]; the finding of the images on his mobile phone and the telephone records between D1, D2 and Mr Soo, I am satisfied so I am sure the only inference to draw is that D1 and D2 shared a common intention to blackmail Mr X and were party to a joint enterprise to blackmail Mr X[107].

Verdict

172.In reaching these findings I have carefully considered everything said on behalf of the defendants by Mr Donald and Mr Paul Kwong.  Nothing said by Mr Donald nor Mr Paul Kwong causes me to doubt the findings I have made. 

173.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of charge beyond reasonable doubt, the case against each defendant being considered separately.  The defendants are convicted as charged.