R. v. Liu Mei Cheung and Another

CACC000425/1994

IN THE COURT OF APPEAL

1994, No. 425
(Criminal)

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Coram: Hon. Macdougall, V.-P., Nazareth, V.-P., and
       Penlington, J.A.

Date of hearing: 17 March 1995

Date of judgment: 17 March 1995

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. On 13th July 1994 the two applicants (D1 and D3) were convicted by His Honour Judge Britton in the District Court on charge one, which was of blackmail, contrary to ss.23(1) and (2) of the Theft Ordinance.

2. The particulars were that, in April 1993, with a view to gaining for themselves, or with intent to cause loss to another, they made unwarranted demands for $70,000 from one Chan Shuk-man ("PW1") with menaces.

3. A third defendant (D2) was acquitted. The 1st applicant (D1) was also convicted on two other charges of accepting an advantage contrary to s.4(2)(b) of the Prevention of Bribery Ordinance, Cap. 201. Charge 2 alleged that while he was a police officer, without lawful authority or reasonable excuse, he accepted $20,000 from PW1 as a reward for preventing, hindering or delaying police visits to, and inspection and surveillance of the Club Melody Karaoke bar. The other, charge 13, related to acceptance of $6,000 from PW1, on or about 27th May 1993, on account of expediting the approval of a liquor licence for the Club by police officers. There were also ten other bribery charges against the 1st applicant. Those were taken into consideration by the judge at a later stage.

4. The 1st applicant now applies for leave to appeal against conviction. Before us he abandoned his application for leave against sentence. The 2nd applicant applies for leave to appeal against both conviction and sentence.

5. The judge's reasons for verdict go into a great many pages of details of visits, meetings and particularly verbal exchanges between the applicants and PW1. For the purpose of this appeal, the facts need only be stated relatively shortly.

6. Early in 1993, PW1 and a group of investors purchased a karaoke bar known as the Silver Bird in Sheung Shui. The contract was signed about mid-March and the bar was to reopen as the Sing Club Melody Karaoke Bar on 1st July. The events which this appeal is concerned with took place in April and May 1993 during the run-up to the reopening. During that period, PW1 used to visit the premises frequently to supervise the decoration, hiring of staff and so on. About the beginning of April, there was a fight and major disturbance at the Silver Bird. The police were called and some of them were in fact injured. Thereafter, there were frequent visits by the police to the Silver Bird. PW1 testified that D1 (i.e. the 1st applicant) walked into the Silver Bird on the afternoon after the fight. She says he told her he was a police sergeant, which he in fact was, at the Sheung Shui Police Station. She says he told her that the fight the previous night was very troublesome and that he would be coming back later to see her. He did so some days later and again referred to the fight as troublesome. He said he had to play it down at the station and spend money on her behalf socialising with people there, mentioning the Station and Assistant Superintendents. The karaoke bar was due to be opened shortly, he said, and cause of the fight, it would be in great trouble. He asked if she had any money with her. She asked what for. He explained that it was for socialising with people like the Superintendent. The judge was satisfied that the implication was that if there was no money, there would be trouble. She said that she had about $20,000 and would have to go and get it. She went to the manager, Cheng Ping-hung, and told him that there was a policeman at the door asking for money. She asked him for several thousand dollars but he only gave her $200. She returned to D1 and gave him the $20,000.

7. The 2nd applicant, who was D3, whom she had known before as a regular patron of the Silver Bird and who had been present at the fight, telephoned her a few days later, asking her to meet him at the Silver Bird where he would like to introduce his big brother and several police officers. She went. The three defendants were present with others. D3 told her if she wanted to avoid "several more decorations", presumably of the premises, she should know what to do. If she wanted to get the place open she should pay $70,000. D1 then took her aside and repeated what D3 had said, adding that the money was not for him personally but for people at the police station and big brother. He also said that $70,000 was not much.

8. Continuing her testimony, PW1 said that, on about 26th April, D3 telephoned and asked her to go to the Hung Lok Restaurant in Sheung Shui. She went. D1 was there. He repeated his refrain saying that several tens of thousands of dollars was not much to spend on socialising with his superiors. She asked him to let her think about the matter. Early in May, D1 came to the Silver Bird at about 11 p.m. for a licence check. He told her he would help her and that she knew what to do.

9. In the next couple of weeks, there was a succession of telephone calls from D1 and D3 asking about the money. There was one on the 26th by D1 saying that the opening of the Sing Club Melody was imminent and that the Assistant Superintendent would make sure she could not open. By that time printed invitations of the opening had been sent out that morning, including one to the Sheung Shui Police Station. That afternoon, PW1 said that she received a telephone call from the Station. She went there and the invitation was handed back to her with the explanation that they did not accept invitations from organisations. She thought that it was returned because she had not paid the money over and that she was in deep trouble. She contacted a friend who was a Police Community Relations Officer and was put in touch with the ICAC. Subsequently, a friend of the defendants telephoned her and it was arranged for her to go to the Hung Lok Restaurant for discussion. The ICAC gave her a concealed tape-recorder and $30,000 marked with chemical powder. D1 and D2 were there, but not D3. There were long discussions, over two hours it seemed. A great deal was recorded before the tape ran out. The transcript provides devastating evidence (to use the judge's expression) against D1.

10. PW1's evidence was that when she prepared to leave, D1 asked for a lift to Kowloon, and on the way kept repeating that the money (reference to which appeared in the transcript of the tape), i.e. an amount of $30,000 or $20,000, was to buy gifts for the Superintendent's wife and that he, D1, was an honest man. Later, he said, she should give him several thousand dollars first, and that perhaps he would take $3000. She told him that he could take any amount he liked. She gave him the packet of money. He took out $3000. Then he asked if he could take $6000. She said 'feel free'. She drove back to the car park. When he left the car, the ICAC arrested him and found the $6000 on him. He said that he had borrowed it from his sister-in-law.

11. He was interviewed by the ICAC that night and said that PW1 was an old friend of the family. He had mentioned in the car that he was short of money and asked her for $3000. She told him to take $6000. He did so, because, as old friends, it was understood that he would return it in a couple of days. The judge accepted PW1's evidence and rejected that of D1, including the different versions he had given to the ICAC and to the court in evidence.

12. The 1st applicant, D1, gave written grounds of appeal in support of his application for leave. I will deal with those first. They are concerned, not surprisingly, with the evidence of PW1, and most of his points were addressed by the judge in his reasons. First, D1 said that PW1 testified that she barely knew D1 whereas he said independent evidence shows that their families were friends and even shared activities like barbecues and mah-jong. This point the judge addressed at p.21 of his reasons for verdict and he concluded that:

"The net effect was to establish that the two couples may have occasionally played mah-jong with each other in the company of others and may well have been at barbeques together with a crowd of other people in the past but not for some time. They were not, in my view, the close family friends that D1 would have me believe that they were."

The 1st applicant has repeated that point in a written submission, running to 17 pages, which he handed up to us today. Nothing in that additional submission adds anything new to the point.

13. In the second and fourth grounds in his application for leave, the applicant took the point that PW1 said that Mr Tang, the principal investor in Sing Club Melody, was often away, so she was not able to inform him of the blackmail demand. But, he says, Mr Tang testified that at material times he was in the karaoke bar almost every night. D1 also says that PW1 testified that she dared not inform Mr Tang about bribing a police officer with $20,000 and only mentioned that a police officer had blackmailed "the bar" for several thousand dollars whereas Mr Tang said that if "the bar" was being blackmailed, he would have shut it down. D1's point is that Mr Tang would have had nothing to do with handing money to the police. He develops this point at length in his written submissions handed up today. But the judge found that D1's contentions were not very accurate. He mentioned that at p.35 and he took the matters raised in these grounds into his overall assessment. As to not informing Mr Tang, the judge considered that PW1 understandably might have found Mr Tang a formidable and forbidding character. There is nothing in the second and fourth grounds.

14. As his third ground, D1 says that manager Cheng testified that PW1 asked him only for $200 and not for the several thousand dollars she had mentioned. D1 complains that the judge rejected Cheng's credibility because of his strange hairstyle. It is true that there is an unfortunate reference to Cheng's hairstyle and dress in the judgment, but on a fair reading, it is plain that the judge rejected Cheng's evidence because he was no friend of PW1 and not a person he would be disposed to trust. He much preferred PW1's evidence to Cheng's, and of course, the judge had the opportunity to see Cheng. D1 develops this point also in his written submissions. The judge has dealt with the point in a way he was entitled to do, and his conclusion is not undermined by the enlargement of D1's points in his written submissions handed up today.

15. Fifth, D1 complains that PW1 became involved with D2 and, in testifying, took his side against D1 and D3. There is nothing in this ground. Moreover, the judge addressed and dismissed the relevance of an allegation by one of the defence witnesses that PW1 and D2 were lovers.

16. Sixth, D1 says that the talk that he had with PW1 on 27th May 1993 lasted for about two hours but that only ten minutes of the transcript was put in evidence, and that evidence in his favour was not included. Doubtless a great deal of additional matter could have been extracted from the transcript and some of it would be regarded by D1 as being in his favour. We are not persuaded, however, that the judge's conclusion that it was devastating evidence against D1, is materially affected by the omission of such matter from the transcript or by D1's written submissions.

17. D1's remaining points, and indeed some additional ones in his written submissions presented today, are in the nature of rhetorical questions, observations, argumentative points, points that detail some immaterial degree of discrepancy, alleged improbabilities and other minor points. We are not able to find anything of substance or anything that adds to the written points we have discussed.

18. The judge held rightly, in our view, that PW1 was not an accomplice, but he took the view, understandably, that, as she was prepared to bribe police officers, she should be regarded as an accomplice. On the other hand, he made the curious comment that even if the ICAC had authorised her to offer the bribes, the position would be the same. That would not be so, for she would then have had the authority to hand the money to police officers. However that may be, the judge proceeded to look for corroboration and he found it in the taped conversation and in the $6000 D1 received from PW1. That evidence clearly was corroboration that implicated D1 and also positively proved a material part of PW1's evidence.

19. In the result, the conviction of D1 cannot be faulted. While, therefore, we give him leave to appeal against conviction, we treat the hearing of his application as the hearing of the appeal and dismiss the appeal.

20. Turning to the application of D3 for leave to appeal against conviction, although the judge did look for corroboration of PW1's evidence, it is quite clear that he accepted her evidence, not only in relation to D1, but generally, as can be seen from p.33 of his reasons.

21. D3's written grounds of appeal against conviction were that there were discrepancies between the evidence of the witnesses and that of PW1, that he had sufficient evidence of an alibi, that he telephoned during the tape recording but the voice could not be identified as his, and that because D2 was acquitted he too should have been acquitted. He did not add to those grounds before us.

22. The judge carefully addressed the discrepancies in PW1's evidence and, having done so, was entitled to accept her evidence. Likewise, he addressed the matter of D3's absence from the Silver Bird, concluding, again as he was entitled to do, that the defence witness called by D3, must not have seen him at the Silver Bird on the material occasion. That D3's voice was not or could not be identified on the tape recording, and likewise the acquittal of D2, plainly are not inconsistent with D3's guilt.

23. There is no merit in his grounds of appeal. Having accepted PW1's evidence, the judge quite properly found him guilty.

24. Turning to D2's application for leave to appeal against sentence, what he says is that the sentence was too heavy. He has not said why he thinks that is so.

25. We can see nothing wrong in principle in the sentence, nor, having regard to the gravity of the offence of blackmail, do we think the sentence excessive. Accordingly, while we also grant the 2nd applicant leave to appeal against his conviction and sentence, we treat the hearing of the application as the hearing of the appeal, and reject the appeals against both conviction and sentence.

Representation:

Mr K.P. Zervos (Crown Prosecutor) for Respondent

1st Applicant in person

2nd Applicant in person