R. v. Wong Fung and Another

CACC000466/1991

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Coram: Hon Sir Derek Cons, V-P, Kempster and Penlington, JJA

Date of Hearing: 8 April 1992

Date of Judgment: 8 April 1992

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J U D G M E N T

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Kempster, JA:

1. This is the judgment of the court.

Conviction

2. On 9 September 1991, in the District Court, Wong Fung, with two others, was convicted of blackmail contrary to ss 23(1) and (3) of the Theft Ordinance (Cap 210). Against that conviction he seeks leave to appeal. Although represented at trial he appears in person before us. We have this morning refused his application for an adjournment.

3. In the Reasons for Verdict Deputy Judge Ismail mentions his ruling, made on 14 August 1991, that there was a case to answer; following which the applicant elected not to give evidence. These matters are, we think, what the applicant is referring to when, in his Grounds for Appeal, he asserts that:

"before D2, D3 and I gave testimonies, the judge had convicted us. Therefore, afterwards, when the judge asked if we were going to give testimony, D2 and I denied."

The aspersion thereby cast on the judge is wholly unwarranted.

4. It was not disputed that between 12.25 and 1.10 pm on 8 June 1990, in Sheung Shui Police Station, Detective Inspector Wai handed a loaded tape recorder and microphone to Detective Senior Inspector Li (PW 4) and a video camera into which a cassette was loaded to a police constable. *Li recorded the conversation which took place when, later that afternoon, he met the applicant and his two co-accused at the godown of the Canyon Engineering Works, Sheung Shui, New Territories. The constable filmed that meeting from a parked goods vehicle nearby.

5. Wai also took the numbers of five $1,000 notes shown to him by Chong Kwok-lai (PW 2) who was the manager of Canyon Works.

6. The judge accepted Chong's evidence that on the afternoon of 23 May 1990 a man giving the name of "Wong" had telephoned him with a view to collecting "Tor Tei" fees and discussing "Pau Kam" or "Tau Pau". "Wong" asked for a meeting somewhere in Sheung Shui and left his pager number - 366. On several further occasions "Wong" spoke to Chong on the telephone to like effect. On June 4 Chong reported 'the calls to the police and on June 8 paged "Wong" using the number 366. He left a message for "Wong" to meet him at the godown. About 15 minutes later one of the accused approached Chong who was standing near the godown with Inspector Li and another officer, both of whom were in plain clothes. After a brief conversation that accused left and a quarter of an hour later returned with five other men. One of those men was the applicant who approached Chong, now in the godown, and, having satisfied himself as to Chong's identity, asked him to come for a talk. The applicant, who was holding a mobile telephone, said he was "Wong". Chong said he was busy.Then the applicant spoke with Li, whom he took to be Chong's personal assistant, and asked for money - $50,000 as a down payment and then $10,000 a month - to guarantee the safety of the godown and ensure freedom from other "collectors". After negotiation those demands were reduced to $20,000 and $5,000 respectively; $5,000 to be paid on the spot. The notes which had been shown to Wai were then handed over. The whole conversation and incident were recorded and filmed. The police revealed their identities and arrested the three accused.

7. The judge not only accepted that evidence, which included the recordings on tape and video film, but also that of Detective Staff Sergeant So, given as an expert on triad procedures and parlance, that "Tor Tei" is a euphemism for protection money which, if it is not paid when demanded, has often resulted in damage to premises. He also explained the expressions "Tau Pau" and "Pau Kam" which have less grave implications.

8. The evidence of the third accused, who did give evidence, was only material to the applicant's case insofar as it mentioned the conversation which the applicant had with Li in the godown to the effect that donations were required for the repair of roads.

9. Having heard the applicant's tone of voice on the tape and seen his demeanour on the film the judge was sure that the applicant had demanded money with menaces with a view to gain for himself and that the applicant's words would have affected the mind of a person of normally robust temperament. We cannot fault his conclusion.

10. The applicant complains that there was insufficient evidence to link him with the pager number 366. But the evidence was that he said to Chong "You have made an appointment with us" and " have arranged it a long time ago". There is even less substance in the contention that he "never raised any financial matter to the aggrieved party". The matters orally advanced by the applicant to us this morning take the matter no further.

11. This application is without substance and must be dismissed.

Sentence

12. Having read the probation reports on Wong Fung and Lam Cho Ching, who seek leave to appeal against sentence, and considered in some detail the appropriate sentences to pass for this class of offence, Deputy Judge Ismail sentenced Lam to imprisonment for two years and two months and Wong to imprisonment for two years and six months. Lam was aged 22 years and had one previous conviction for unlawful book-making. Wong was aged 30 and had previous convictions for criminal damage and assault occasioning actual bodily harm. The judge had found him the leader of the group.

13. We do not feel it appropriate, despite all that has been said by the applicants, to interfere with the sentences passed by the judge. The courts regard triad related protection activity as serious. Both applications are dismissed.

Representation:

Applicants in person

Timothy Casewell for the Crown