HKSAR v. Chow Wang Chit

HCMA000117/2003

HCMA117/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.117 OF 2003

(ON APPEAL FROM TMCC 1766 OF 2002)

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Coram: Hon Nguyen J in Court

Date of Hearing: 7 January 2004

Date of Judgment: 3 March 2004

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J U D G M E N T

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1.The appellant was charged together with his wife with the offence of blackmail and the particulars are that on 29 April 2002 they, with a view to gain for themselves, made telephone calls to the victim PW1 and made an unwarranted demand of cash $20,000 from the victim with menaces.

2.The appellant's wife, the 2nd defendant, pleaded guilty to the charge before Mr Neil Mitchell, Deputy Magistrate sitting at Tuen Mun Court. Mitigation on behalf of the wife was reserved until the end of the appellant's trial. The appellant's trial then commenced before the same magistrate and lasted two days. The trial concluded on 27 December 2002. Verdict was reserved until 3 January 2003. The magistrate gave detailed oral reasons for his verdict and after transcription these oral reasons cover seven pages of foolscap typing. The magistrate convicted the appellant and sentenced him to 180 hours' community services. He now appeals against the conviction.

The evidence

3.The victim gave evidence that he came to know the 2nd defendant through an internet chat room. They arranged to meet and he came to know that she was a married woman living in police married quarters. On the second occasion that they met, they had sexual intercourse. They met again on two subsequent occasions and on the last occasion, they had sexual intercourse again. On the following day the 2nd defendant telephoned the victim and said her husband had something he wished to discuss with the victim. A male voice then came on the line and said he was the 2nd defendant's husband and asked the victim if he had done "something with his wife". The victim said yes. There was more conversation. About 30 minutes later, the victim received another call and recognised the male voice to be the same one as before. The male said he was a police officer (the appellant was a serving police officer) and that he could teach his wife to accuse the victim of raping her.

4.At about 5:00 a.m. on the following morning the male called again and said he wanted money and demanded $20,000. The victim said he could not afford to pay that much and after discussion he agreed to pay $3,000. He was then given instructions on how to pay the money into the 2nd defendant's bank account. The victim was told that if he did not pay he (the caller) being a police officer would teach his wife "what to do". Later that morning a friend of the victim, at the victim's request, deposited $3,000 into the 2nd defendant's bank account. The victim then telephoned the 2nd defendant whereupon the 2nd defendant handed the telephone to her "husband" and the victim told him that he had deposited the money and the male said OK.

The magistrate's findings

5.The learned magistrate found the victim to be a thoroughly honest and convincing witness.

6.The appellant did not give evidence but called a girlfriend of his wife who gave some evidence to try and discredit the victim. The magistrate rejected her evidence.

7.The magistrate found that the defendant was not telling the truth when he was interviewed by the police in the video recorded interview. One of the allegations of the defence was that the victim had conspired with his cousin (PW2) who was a serving police officer to frame this allegation against the appellant. The cousin only came into the picture after it was suggested to the victim by his mother that he should discuss the matter with his cousin. PW2 was called for cross-examination and the magistrate found that he was an honest person and saw no reason why he should have gone along with any plan to frame the appellant.

The grounds of appeal

8.The first ground of appeal advanced by Mr Alex Ng who did not appear at the trial was that the magistrate erred in law in failing to consider whether the demand was unwarranted because that was an issue which was raised in the appellant's video interview.

9.The magistrate had started his oral reasons for verdict with the following words :

" A person is guilty of blackmail if, with a view to gain for himself or another, or the intent to cause loss to another, he makes any unwarranted demand with menaces. Menaces are generally defined as being threats and conduct of such a nature and extent in the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand. Where a person is unusually timid and that is known to the person making the demand, that should be taken into account."

10.The magistrate then summarised the nature of the evidence against the appellant and summarised defence counsel's submission. He then found the victim to be a thoroughly honest and convincing witness. He then repeated the evidence of the victim and summarised what the appellant said in his record of interview. He then dealt with the evidence of the defence witness and rejected that evidence. He then found that the defendant/appellant was not telling the truth when he was interviewed by the police. He then found PW2, the victim's cousin to be an honest person who did not take part in framing up the appellant. He then said this in conclusion :

" As I say, I found PW1 to be an honest and convincing witness, and I have no reason to doubt his account of what was said to him over the telephone. PW1 had clearly been frightened. The call made late on 28 April clearly contained a threat, which amounted to menaces. This was the threat that the defendant would teach the 2nd defendant how to accuse PW1 of raping her. It was backed up by the statement that he was a police officer.

I have no doubt that the defendant intended this to be a threat to be taken seriously. It was taken seriously and amounts to menaces. This was followed by another call and making a demand for $20,000, backed by the threat that if the money was not deposited, the defendant would teach the 2nd defendant what to do. This is clearly a reference to the earlier call.

The demand for money made by the defendant was an unwarranted demand."

11.Another matter which militates against this ground of appeal being allowed is, as Ms Wong, counsel for the respondent, submits, under section 23 of the Theft Ordinance it is stipulated that for the purpose of blackmail 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 menaces is a proper means of reinforcing the demand.

12.In the present appeal, once the magistrate accepted the evidence of the victim, it follows that he must have accepted that the demand for $20,000 was accompanied by menaces and therefore the appellant, in making the demand, could not have had reasonable grounds for making the demand and the use of the menaces, namely, the threat to falsely accuse the victim of rape, could not have been a proper means of reinforcing the demand. What was adverted to by the appellant in his record of interview, namely, that the victim had been asked by him to pay the money because the victim had promised to pay two to three thousand dollars pocket money as if he (the appellant) was acting in the interest of his wife and to save her honour was found by the magistrate to be not credible and the magistrate did not accept that the defendant was telling the truth when he gave those answers.

13.The second ground of appeal was that the learned magistrate erred in law in failing to consider the evidence against the appellant and his co-accused separately, wrongly taking into consideration a telephone call made to PW1 by the 2nd defendant.

14.The respondent's reply to this ground is that when the magistrate referred to the telephone call made by the 2nd defendant to the victim, that was simply the magistrate's narration of the sequence of events. Ms Wong submits, and I agree, that it is obvious that the magistrate focused on the calls made by the appellant to the victim to find that the prosecution had proved beyond reasonable doubt that the appellant had committed the offence of blackmail.

15.The third ground was that the learned magistrate erred in law in failing to give himself the credibility direction in the light of the appellant's explanations given in the video interview and his good character and responsible position, thereby rendering the "propensity only" direction unbalanced.

16.What had happened was in his oral reasons the magistrate said this :

" As I say, the defendant himself did not elect to give evidence. He has a clear record. And since he did not give evidence, the direction I give myself goes to propensity only. He is also a serving police officer, and thus holds a responsible position. I accept he is a person of good character."

17.In the magistrate's Statement of Findings, having repeated everything that he had said in his oral reasons, he said this :

" There is very little else of use that I can add to those reasons. Having given myself an appropriate direction with regard to the Appellant's clear record and considered the video taped interview under caution in its entirety and the submissions made by Mr. Fung, I was satisfied beyond reasonable doubt on the evidence that the Appellant had been a party to the blackmail of the PW1 as alleged and I convicted him of the charge."

18.The respondent's reply was that in assessing the credibility of the appellant, the magistrate had canvassed every answer given by him in the record of interview. Also he bore in mind the fact that the appellant had a clear record and was a serving police officer. Strictly speaking, in my view, since the appellant had given a record of interview which played a part in the magistrate's deliberations, he should have given himself the direction as to credibility as well as to propensity.

19.However, the magistrate was a deputy magistrate who had sat as a deputy on numerous occasions beginning in 1995 and he was a professional magistrate in the sense that he was a qualified barrister. Also in the case of R. v. Fok Tin Yau [1995] 2 HKC 450 at page 456, Power VP giving the judgment of the Court of Appeal said in relation to a judgment by Mortimer J (as he then was) in R. v. Chan Wu Nam, CACC274/1992 (unreported) in which Mortimer J said :

"... it was incumbent upon the District Judge to carefully evaluate and in these circumstances to set out the effect which the applicant's good character and age had upon his mind."

at page 456 :

"Mortimer J., however, made it plain that the ruling was one made in the circumstances of that particular case. As Penlington, J.A. made it clear in R. v. WONG Chi-wei (1994) 1 HKCLR 94, CHAN Wu-nam's case is not authority for the proposition that in all cases where credibility is in issue, the judge must set out the manner in which he has considered the accused's good character in deciding that issue. Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved."

20.I am satisfied that in the present case the magistrate was aware that the appellant was a serving police officer and was a person of good character and I am also satisfied that he did take that into account when he considered the answers given by the appellant in his video recorded interview.

21.The last ground of appeal was that the conviction is unsafe and unsatisfactory as there was a real danger of bias on the part of the learned magistrate who had dealt with the 2nd defendant's plea of guilty shortly before proceeding to hear the appellant's case by reasons of the marital relationship between the 2nd defendant and the appellant, the nature of the allegation, and, in hind sight, the defence put forward by counsel for the appellant in the trial.

22.In the instant case the 2nd defendant who pleaded guilty was represented by the same counsel who appeared at the trial of the appellant. I do not have a copy in the appeal bundle of the facts which were presented by the prosecution against the 2nd defendant but from a reading of the transcript of what was said in court when the 2nd defendant pleaded guilty, it would appear that those facts carefully omitted all references to the appellant and mitigation on behalf of the 2nd defendant was not made after the plea but, with the leave of the court, was deferred until after the completion of the trial of the appellant. Also counsel appearing for the appellant did not ask the magistrate to recuse himself from the trial of the appellant.

23.The magistrate was a professional tribunal of some experience and would have had no difficulty in excluding from his mind when considering the evidence against the appellant, the fact that the appellant's wife, the 2nd defendant, had pleaded guilty to the charge. Even though they were jointly charged, the 2nd defendant could have committed the offence by herself without any participation by her husband. In my view this ground of appeal cannot succeed either.

24.I have read the transcript of the appellant's video interview and the other parts of the transcript in the appeal bundle. In my view the conviction is neither unsafe nor unsatisfactory and there are no matters in the evidence which cause me to have a lurking doubt about the safety of the conviction. The appeal is therefore dismissed.

Representation:

Ms Lily Wong, SGC of the Department of Justice, for HKSAR

Mr Alex Ng, instructed by Messrs Krishnan & Tsang, for the Appellant