HKSAR V Fan Chi Wai & Another

CACC2/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.2 OF 2004

(ON APPEAL FROM DCCC NO.809 OF 2003)

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BETWEEN

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Before : Hon Stuart-Moore VP, Cheung JA and McMahon J in Court

Date of Hearing : 7 September 2004

Date of Judgment : 7 September 2004

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J U D G M E N T

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Hon McMahon J (giving the judgment of the Court) :

1.These are applications for leave to appeal against conviction.  The applicants were two of five defendants convicted of blackmail, contrary to sections 23(1) and (3) of the Theft Ordinance, Cap.210 before Judge Chua on 19 December 2003 in the District Court.

2.The facts of the case as found by the trial judge were that the applicants were part of a gang of five males who entered a small provisions shop in Chai Wan.  At the time, about 7:30 p.m., the proprietor (PW1), who was the victim of the offence, was in the cockloft of the shop watching television.  His wife (PW2) was downstairs minding the shop which usually closed at 8:00 p.m.

3.When the applicants gang rushed into the shop, one of them asked PW2 where her husband was.  She said he had already finished work.  The gang then rushed up the staircase to the cockloft.  PW2 was frightened for her husband and attempted to follow but when one of the gang told her to go back and keep the store, she did so.  The gang found PW1 upstairs and demanded tea money from him.  PW1 was too frightened to turn around but heard other voices join in.  He was told the area was “looked after” by the gang and he was asked for $1,500.  He replied he could not afford that and was then asked by one of the gang whether he, PW1, was treating that person “as a beggar”.

4.In the meantime, a customer downstairs had telephoned the police who arrived and, interrupting the course of the conversation in the cockloft, had asked PW1 and eventually the gang to come downstairs into the body of the shop.  The applicants and the other three defendants were then arrested.  At trial none of the defendants including the applicants cross-examined any prosecution witness or gave or called evidence. 

5.The trial judge found that although specific statements uttered by the gang in the course of the demand to PW1 could not on the evidence be attributed to any particular defendant, the members of the gang and therefore the applicants were acting in the course of a joint enterprise to blackmail PW1.  In her Reasons for Verdict, she said :

“14.       It was also submitted, as Mr Kwok [PW1] did not identify who had said these words, I could not be sure which of the defendants committed the offence.  In my opinion, this submission cannot absolve any of the defendants.  I infer they went together in a group with a common intention to frighten, by force of numbers and words, Mr Kwok into paying them protection money.  It did not matter if only one of their number did the speaking.  I infer the rest were there to assist and encourage.”

6.Mr McNamara for the applicants advances one primary ground of appeal.  He argues that the applicants were wrongly found by the trial judge to have been acting in a joint enterprise when there was no sufficient evidence to support such a finding.  He says, in particular, that there was no evidence as to whether either of the applicants were present in the cockloft when the demand was made or, even if they were present, whether either of the applicants heard the demand being made.  In other words, he urges upon us that it is possible that the applicants were, though with the gang when it entered the victim’s shop, unaware that it was intended to blackmail the victim.

7.In our judgment there was ample evidence to support the trial judge’s finding of the gang members being part of a joint enterprise.  The gang had rushed into the shop together.  One had asked where PW1 was.  When told he had finished work the gang members had, in the words of PW2, rushed up into the cockloft.  The fact that one or more may have momentarily paused to prevent PW2 following them does not suggest anything otherwise than that they were acting in concert.  It was obvious on the evidence that the gang had arrived in the shop with the purpose of locating PW1 and dealing with him alone.  Their behaviour was threatening and was obviously intended to be so.  They effectively “invaded” the private living area of the premises.

8.When they arrived upstairs and found PW1 looking at the television, any possibility, on the evidence of the conversation which ensued, that any gang member was not aware of the further purpose of demanding money from PW1 was removed. 

9.The cockloft was a small area.  PW1 heard the demand made of him, and the trial judge was entitled to be satisfied that anyone else present knew of the demand, and on the basis of the previous actions of the gang, was part of a joint enterprise to blackmail PW1.

10.That all the gang members were in fact present in the cockloft was established by the evidence of PW3, a police constable, who was the first officer at the scene.  He said when he arrived, the gang members were all upstairs in the cockloft and that a conversation was being conducted.  That supports PW1’s evidence that the police arrived whilst the conversation with the gang was continuing.  There was, therefore, plain and uncontradicted evidence that all gang members, including the applicants, were in the cockloft.  In our view, there was ample evidence for the trial judge to draw the inference which she did that there was a joint enterprise to blackmail PW1 and that each gang member was a member of that joint enterprise.

11.No part of the prosecution’s case before the trial judge was contradicted, undermined or even explained.  Before the judge was a quite plain picture of a gang of individuals acting together in an organised and threatening way to confront an elderly man in a private area of his shop.  In the absence of any evidence from any defendant it is entirely unremarkable that the judge accepted the prosecution case and drew the inference she did.

12.The applications for leave to appeal are dismissed.

Mr Kevin P. Zervos, SC, SADPP and Mr Norton Pang, GC  of the Department of Justice, for the Respondent

Mr John McNamara, instructed by the Director of Legal Aid,  for the Applicants