HKSAR v. Huang Cheung Shing and Another

HCMA 1182/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1182 OF 2003

(ON APPEAL FROM TWCC 2022/2003)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 15 September 2004

Date of Judgment: 15 September 2004

Date of Reasons for Judgment: 22 November 2004

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J U D G M E N T

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1.The 1^st and 2^nd Appellants in this case was convicted after trial of one charge of false imprisonment and one charge of conspiracy to blackmail and each was sentenced two years imprisonment on each charge to be served concurrently.  Both lodged notice of appeal against both conviction and sentence.

2.Prior to the hearing of the appeal, the 1^st Appellant in the case had abandoned his appeal on 2 March 2004.  When the 2^nd Appellant’s hearing came before me on 26 March 2004, I had asked that a Legal Aid Certificate be granted to counsel to argue the point on the propriety of the amended additional charge on behalf of the 2^nd Appellant, the hearing of the appeal was thus adjourned.

3.During the adjournment, the 1^st Appellant applied to treat his abandonment as a nullity and thus his application was set down to be heard together with the appeal against conviction and sentence of the 2^nd Appellant. 

4.After hearing the 1^st Appellant on his application, I had refused his application and after hearing the counsel for the 2^nd Appellant and the 2^nd Appellant himself, I had also dismissed the appeal against conviction and sentence in relation to him.  I now give my reasons.

Prosecution’s case

5.The victim of the 1^st charge, PW1 had visited Macau to gamble and because of his losses had borrowed some money in order to continue gambling and eventually had lost everything.  PW1 was then escorted back to Hong Kong where he met the twoDefendants and an unknown male who escorted him to a restaurant and eventually to his home.  During this time, PW2 who is PW1’s sister had received telephone calls demanding repayment of the debt and also implied threats to her father.

6.At the restaurant, after the 1^st Appellant had made phone calls, he told PW1 that he had been instructed by his boss to accompany PW1 to his home to verify his address.  When the door to his flat was open, PW1 was standing there with the 1^st Appellant but PW2 immediately pulled PW1 into the flat and PW1’s brother-in-law pushed the 1^st Appellant outside.  The 2^nd Appellant and another man had remained outside the flat.  The persons outside the flat then kept pressing the door-bell and shouting that the boss wanted to speak with the elder sister.  It was at that stage that they telephoned the police.  The police arrived a short time later and arrested the 1^st Appellant outside the flat. 

7.Later PW1 together with PW2 were brought to Kwai Chung police station and when they left the police station, they saw the 2^nd Appellant nearby and the 2^nd Appellant said to PW1 “Mr Wong, how is your little son?”.  PW1 then immediately returned to the police station and came out of the police station together with the police and pointed out the 2^nd Appellant to them.

8.After the civilian witnesses had given evidence, the prosecution also called the police officer who had arrested and cautioned the 1^st Appellant.  He gave evidence that the 1^st Appellant said that he had brought PW1 to verify the address and had received $500 for that and did not know about the rest. 

9.While PW7, the police officer who had arrested the 2^nd Appellant was giving evidence, the prosecution preferred an alternative charge alleging that the 1^st and 2^nd Appellants had together with other persons unknown conspired to blackmail PW2.

10.Upon this application being made, the Defence sought an adjournment to consider this and the trial was adjourned from 5 November to 10 November.  At the resumed hearing the prosecution decided to prefer an amended additional charge in the same terms to replace the alternative charge.

11.The defence at that stage objected to the additional charge on the basis that because of the lapse of time they were unable to contact witnesses in respect of the blackmail charge. 

12.The learned Magistrate, however, ordered the trial to proceed on both charges as the defence had been aware all along what the prosecution witnesses would say at the trial and the additional charge was not based on any new evidence. 

13.The learned Magistrate very properly gave the defence an opportunity to recall witnesses or call any further witnesses if they felt that was necessary.  The defence then asked for PW2 to be recalled for further cross-examination.  At the close of the prosecution’s case, the Defendant elected not to give evidence nor call any witnesses.

14.The learned Magistrate after hearing submissions and evaluating the evidence convicted both Appellants on both charges.

Appeal

15.First of all, it helps for me to set out the chronology of the events which led to my request that counsel be granted a certificate by Legal Aid to represent the 2^nd Appellant only, to argue the point as to the propriety of the additional charge.

16.When the two Appellants, first appeared in court on 30 June 2003, they were charged with two holding charges, one of false imprisonment and one of blackmail.  No pleas were taken and the case was adjourned to 21 July 2003.  The case was then further adjourned to 18 August 2003 whereupon the prosecution applied to withdraw the blackmail charge which application was granted.  The case was adjourned to 5 November when the trial started before the learned Magistrate.

17.Mr McNamara was briefed by the Director of Legal Aid to represent the 2^nd Appellant.  Due to a suspicion that the accused may have been acquitted when the prosecution withdrew its alternative charge and proceeded with the additional charge, Mr McNamara very properly applied to this court for the transcript of the proceedings before the learned Magistrate.  Upon the transcript having been made available, Mr McNamara had found that the original blackmail charge was in fact withdrawn so there had been no acquittal of the Appellants when that charge was withdrawn.  So Mr McNamara submitted very properly that the 2^nd accused and in fact indeed the 1^st accused had not been acquitted and therefore had not been placed in double jeopardy and therefore neither convictions were wrong in law.

18.Mr McNamara also felt very properly that he could not proceed with his 2^nd ground of appeal which was that there was an abuse of process.  I then heard the 2^nd Appellant in person as to his grounds of appeal against conviction.  The 2^nd Appellant argued that he did not place the victim under any duress nor threaten the victim.

19.The 2^nd Appellant also argued that his group was not the one who blackmailed the victim in the case and therefore there was no insufficient evidence to show that the 2^nd group who blackmailed the victim were people that the 2^nd Appellant knew or worked with and that there is a possibility that the victim being a regular gambler in Macau could have owed other people money and the 2^nd Appellant maintained his innocence because he said there was no actual evidence that he was involved in the conspiracy to blackmail.

20.The learned Magistrate had correctly identified the law in relation to the two charges and he accepted the evidence of the prosecution witnesses as reliable and credible.  He was thus satisfied that the evidence showed that there was an agreement amongst the Defendants to extort money from PW1 and PW2 that the conspiracy started in Macau and that the money was to be collected in Hong Kong and the pressure was put on persons in Hong Kong. 

21.The learned Magistrate also correctly found that the 1^st and 2^nd Appellants and the other men were clearly aware that money was being demanded from the family of PW1 because of the conversation between PW2 and D1 at the door of the flat and at the time when PW1 left the police station, the 2^nd Appellant had said to PW1, “Mr Wong, how is your little son” and the learned Magistrate very properly concluded that these words were uttered by the 2^nd Appellant and was intended as a threat to put further pressure on the family and so the learned Magistrate concluded that both the 1^st and 2^nd Appellants were aware of the conspiracy and participated in it. 

22.I had read the learned Magistrate’s statement of findings, I am left in no doubt, whatsoever, that the learned Magistrate had ample evidence before him to convict the Appellants of the charges and in doing so the learned Magistrate had committed no error whether in law or on the facts in this case.  So the appeal against conviction in relation to the 2^nd Appellant is dismissed.

23.The 2^nd Appellant then proceeded to argue that the sentence was manifestly excessive because his role was only to verify the victim’s address and he had only spent one and the half hours with the victim and he had not uttered any threats towards the victim and so the 2^nd Appellant submitted that the 2 years’ imprisonment on each charge were too severe.

24.The learned Magistrate in his reasons for sentence found that PW1 was a victim of a fairly elaborate and organised scam.  This was a serious case and therefore the 2 years imprisonment imposed on each charge after trial on the 2^nd Appellant are in my view not a day too long.  I therefore see no merit in the grounds of the appeal against sentence and the appeal is therefore dismissed.

25.In relation to the 1^st Appellant’s application to treat his abandonment as a nullity, the 1^st Appellant submitted that he abandoned his appeal because Legal Aid had advised him that he had no grounds of appeal but when he had heard that the 2^nd Appellant had been granted Legal Aid he therefore applied to treat his abandonment as a nullity. 

26.As Mr Cheung on behalf of the Respondent pointed out, when the 1^st Appellant abandoned his appeal, he understood and knew what he was doing and therefore his mind followed his act.  There was no misunderstanding on his part and it is only due to the court granting legal aid to the 2^nd Appellant did he then decide to make this application.  That is not a proper ground to treat the abandonment as a nullity and it should be noted that Legal Aid Certificate was only granted for Legal Aid counsel to argue a point of law which at the end of the day was found to be without merit.  I therefore dismissed the application of the 1^st Appellant. 

Mr Cheung Wai-sun, SADPP, of Department of Justice, for the Respondent

Mr John McNamara, instructed by Messrs George Tung, Jimmy Ng & Valent Tse, as assigned by DLA, for the 2^nd appellant on point of law re. conviction

The 1^st Appellant, in person, re: to treat abandonment as a nullity

The 2^nd Appellant, in person, re: conviction and sentence