The Queen v. Tsang Yeung and Others

CACC000040/1990

BETWEEN

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Coram: Hon Kempster, Hunter and Macdougall, JJA

Date of Hearing: 21 June 1990

Date of Judgment: 21 June 1990

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JUDGMENT

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Hunter, JA (giving the judgment of the court) :

1. On 16th January 1990 HH Judge Wilson, after trial, convicted the applicants of the following offences and imposed the following sentences.

2. The 1st applicant, Tsang Yeung, he convicted of three charges of blackmail, three charges of theft, one of claiming to be a member of a triad society and imposed a total sentence of five years.

3. The 2nd applicant, Yip Kan Chin, he convicted of one charge of blackmail and one charge of theft and imposed a total sentence of two and a half years.

4. The 3rd applicant, Chan Ying Wing, he convicted of one charge of blackmail and sentenced to two years.

5. The 4th applicant, Tang Kit Wing he convicted of one charge of blackmail and sentenced to one year.

6. The 5th applicant, Yip Tak Shing, he convicted of one charge of blackmail and sentenced to 18 months.

7. All the applicants now seek leave to appeal against their conviction. At the sitting of the court the 1st applicant abandoned that application which was dismissed but maintains his application for leave to appeal against sentence.

8. The facts in evidence before the court below were clear and unpleasant. The victim of all the charges was a man named Man Mei Sang. He is a landlord of six parcels of land near Lok Ma Chau, which he leased to companies for the storage of equipment. He has known the 1st applicant for may years. The story started on 17th May 1989 when the victim was telephoned by the applicant who wanted $10,.000, allegedly as a loan but plainly from the nature of the telephone conversation, it was a demand for protection money because the victim was told that if this was not paid, his sites would be messed up. On the same day the victim was induced to part with the first installment of $5,000. Those two events gave rise to one count of blackmail and one count of theft.

9. On 14th May the victim was persuaded to part with the second installment of $5,000, again after further threats that the sites would be messed up and in this case of a specific threat of arson. That gave rise to the second charge of theft. If the victim thought by paying this initial demand he was successfully buying off the 1st applicant he was sadly mistaken. More threatening calls were made.

10. The 1st applicant started to visit the sites. A total of four visits were described by the 2nd prosecution witness who was an employee of the first. Following the threat of arson, a bulldozer on the site was totally destroyed by fire. After that this applicant rang again, boasted that he was responsible and repeated his threats. On an occasion in early June on a visit to the site he boasted to PW2, the employee who was there, that he was a member of a triad society.

11. On 6th July the victim met the 1st applicant by chance. The threats and demands were then repeated to him personally. They took what he found to be a very frightening new turn because the threat included threats to his family. The victim decided that now was the time to report the matter to the police, which he duly did.

12. A meeting was arranged that evening on one of the sites. The victim, PW2, his employee, went to the site and concealed in the back of the van were two police officers. Other waiting police officers were concealed round the site. In due course the 1st applicant arrived in a car driven by the 2nd applicant. The car contained the 3rd, 4th and 5th applicants. The 1st and 2nd applicants got out of the car. The 1st applicant then outlined his demands to the victim. What he wanted was $3,000 per site per month, making a total of $18,000 a month, and what were the victim's proposals for payment. They were accompanied by the same threats as before, a threat of messing up the site and the repeat of the threat to the victim's family. $3,000 was then handed over by the victim. This had been pre-arranged in the sense that he had the money on him, and note had already been taken of the numbers of those notes. That money was immediately passed on by the 1st applicant to the 2nd applicant. It was at this point that the police made their presence known and everybody there was arrested.

13. I need say nothing about the 1st applicant's application for leave to appeal against conviction as that has been abandoned. The 2nd applicant maintains that application. He gave evidence in the court below, giving a somewhat convoluted explanation of the reasons why he was there on site and why he was found after the event to be in possession of the $3,000. As to that the trial judge said this: -

"I do no believe a word of this. I am satisfied from the evidence that the 2nd applicant took part in a concerted plan to blackmail the victim and that he in fact received the money."

I should add that the judge had already accepted the evidence of the victim; the evidence of his employee, and of the two supporting police officers who heard a good deal of the blackmailing threats from the back of the van.

14. In his Notice of Appeal, the applicant has set out substantially again the evidence which he gave in the court below. It is sufficient for this court to say that that evidence was disbelieved in its totality when given in fact, and there is no basis upon which this court can interfere on that finding on credibility.

15. The applications of the 3rd, the 4th and 5th applicants can be taken together. None of those men gave evidence in the court below. They offered no explanation whatever of their presence on this site in this motor-vehicle. In relation of them the trial judge said this: -

"The prosecution case here rests upon the presence of these three defendants at the blackmail scene. There is evidence however of more than passive presence. This was a remote area in the middle of the night and these defendants were not passing by chance. The evidence of the 2nd applicant was that they journeyed some distance together in the same vehicle at the express request of the 1st applicant in order to attend. The evidence was that although they did not speak they were within hearing of the entire blackmail conversation.

They have not given any evidence. I am satisfied that this was a joint venture, the purpose of which they were well aware, and that they took part by their presence as an accompanying show of force."

16. Each of the applicants to varying degrees has set out in his Notice of Appeal the explanation and the evidence which he might have given in the court below but did not do so.

17. In view of the evidence that was in fact before the judge it is in our judgment impossible to criticize him for drawing the inference that he did. In these circumstances the four applications for leave to appeal against conviction all fail and must be dismissed.

18. I turn now to the application of the 1st applicant for leave to appeal against his sentence of five years imprisonment.

19. In imposing sentence the judge briefly rehearsed the facts. He said that: -

"the victim was clearly terrified and at one stage spontaneously said so in court and asked whether he could be given protection."

He referred to the destruction of the bulldozer by fire. He pointed out that there was three separate acts of blackmail and associated theft. He went on: -

"I take into account that blackmail is particularly prevalent in the New Territories and particularly so against the operators of construction equipment who are peculiarly vulnerable."

A comment with which this court is bound to agree.

20. Dealing with this applicant, he said: -

"... he was the instigator and prime mover throughout ... He has a dreadful record of 13 previous convictions and has served terms of imprisonment for inter alia membership of a triad society, robbery (twice), criminal damage, criminal intimidation and blackmail."

21. Mr Poll, on his behalf, this morning has made an eloquent plea for a second chance. He emphasised the limited amount of money he succeeded in obtaining, but if his efforts on the last occasion had succeeded, those sums of money would have immeasurably increased at the rate of $18,000 a month. He mentioned that there was only one threat to the applicant's family. On the evidence I do not think that was correct. There were at least two threats made on the same day, with the one early and one late on 6th July. When one looks at this man's record, it can be seen, as was observed in the course of the argument that in the early days he was given many chances, none of which he has taken. He has not learned anything from the sentences that had been imposed in the past.

22. In our judgment nothing can be said by way of criticism of this sentence.

23. In relation to the 1st applicant the Certificate of Conviction now confirms that the total sentence was not as we have indicated five years, but five years and one month because the judge activated a suspended sentence of one month and imposed one months imprisonment consecutively. That was an error although concurred in by his counsel because it had already been activated on a previous occasion. The application succeeds to the extent that that part of the sentence has to be set aside but the main sentence of five years stands.

24. In respect of the four other applicants, all their applications are without merit and each applicant is to lose four months of the time spent in custody between the Notice of Appeal and this hearing.

Representation:

M. Poll (M/s Haldane Midgley & Booth) for A1

A2-A5 in Person

J.L. Abbott for Crown/Respondent