HKSAR v. Choy Chung Yee

CACC000482/1998

CACC 482/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 482 OF 1998

(ON APPEAL FROM DCCC 703/1998)

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Coram: Hon. Mayo, Stuart-Moore, JJ.A. and Keith, J. in Court

Date of hearing: 26 May 1999

Date of delivery of judgment: 26 May 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was convicted in the District Court of two counts of blackmail after a trial before H.H. Judge Davies. He was sentenced to 2 1/2 years imprisonment and seeks leave to appeal against both his convictions and sentences.

2. Particulars of the first offence were that:

"CHOY Chung-yee on the 1st day of May, 1998, at Wealthy Petroleum Trading Company Limited, Ground Floor, No. 54, Chung Wui Street, Tai Kok Tsui, Kowloon, in Hong Kong, together with one unknown person, with a view to gain for himself, made an unwarranted demand of $1,000 Hong Kong currency from TSANG Kwok-keung, with menaces."

3. Particulars of the second offence were similar save that it occurred on 4th May 1998 and no one else was involved.

4. The victim PW1 gave evidence of being approached by two men one of whom said "I am 'tor tei' here. If you park your car here you have to pay $1,000 per month." PW1 said that he would not be parking his car overnight. The man then said that as PW1 was doing business in the area, he would have to pay $1,000 anyway. PW1 had recently started a business there. He said that he would have to discuss the matter with his business partners.

5. One of the men returned on 4th May 1998 and asked PW1 in the presence of his wife who was PW2 if he had considered the proposal made on 1st May 1998. PW1 told him that he couldn't afford it and would be prepared to give him 'lai see' packets from time to time. The man said that this was not acceptable and that he shouldn't carry on business there. He then left.

6. On 11th May 1998 two other men came to them. They saw what they described as 'the shorter man' standing outside the premises about 50 feet from the shop. The men spoke again on the subject. PW1 decided to report the matter to the police. The two men in the shop left but 'the shorter man' outside did not. When the police arrived PW1 pointed out 'the shorter man' to the police who then approached him. The man denied any involvement but on PW1's insistence that he had earlier made the demands the police arrested him. This man was the applicant.

7. The Judge was particularly concerned with the question of identification. In this connection PW2 picked out the applicant at an identification parade as being one of the men who had made demands on 4th May 1998.

8. The applicant went into the witness box and gave evidence. He referred to an earlier incident when there had been a dispute over car parking in the area. He had had an unpleasant verbal exchange with PW1. He denied that he had ever represented himself as a 'tor tei' or demanded protection money from PW1.

9. The applicant called one of his friends to support his evidence concerning the earlier dispute. This friend had gone on to suggest that when there had been a discussion no one had really understood what PW1 had been saying.

10. There is effectively one perfected ground of appeal and it reads:

"1. The Appellant appeals against his Conviction on the following Ground:-

(A) 'That the Learned Judge erred in law by applying the wrong Standard of Proof.'

(B) 'That the Learned Judge erred, when considering the quality of PW2's ID of the Appellant to consider the effect that PW1's admitted repeated identification of the Appellant would have on such an identification.'"

11. It has to be accepted that the Judge who is a very experienced District Judge nowhere in his Reasons for Verdict specifically states that he is satisfied of the applicant's guilt beyond a reasonable doubt.

12. What is apparent however is that the Judge has carefully weighed and assessed all of the relevant evidence. It is clear from the reasons he has given that he has accepted PW1 as being a truthful and reliable witness. Equally it is true that he has rejected in unequivocal terms the applicant's testimony.

13. Having regard to the Judge's experience and his analysis of the evidence which was before him, it is inconceivable that his adjudication of this case could have been on any other basis than that he was indeed satisfied of the applicant's guilt beyond a reasonable doubt.

14. As to the second limb of the first ground it is apparent that the Judge was mindful of the fact that PW1 had identified the applicant and that there almost inevitably would have been discussions between him and PW2 on the subject. The Judge says this at p. 13 of the appeal bundle:

"Particularly when there is a close relationship between witnesses who have, for obvious reasons, discussed the matter in hand, there will invariably be some degree of contamination of the evidence one or both subsequently give, but not necessarily such as to make each's evidence no longer the independent view of the witness. In other words, the contamination may cement further the already formed view of the witness just as it might persuade him or her to change his or her view against his or her better judgment. Contamination is a point easily made and often difficult to disprove entirely. It must largely depend on the credibility of those involved following a general assessment of their character."

15. These convictions were in no way unsafe or unsatisfactory. The application for leave to appeal against conviction is dismissed.

Sentence

16. When passing sentence the Judge had this to say:

"This case has triad connotations. The victim had no sooner opened up a new shop for business than he was visited by two men, one of whom was this defendant, and was required to pay $1,000 per month under the implied threat that he or his business would be subjected to some form of harm if he did not accede. The victim was given time to consider the demand and a few days later the defendant returned, reinforced the demand and the implied threat. These visits have been separated into two offences but they form part of the same enterprise so the sentences will be made concurrent.

I take 2 1/2 years after trial, rather than 3 1/2 years, as the starting point for sentence on each charge having been, quite properly I feel, prevailed upon by defence counsel not to recognise this as a triad case merely because the words 'tor tei' were used."

17. The applicant can count himself fortunate in all the circumstances that a starting point of 2 1/2 years was adopted rather than a heavier sentence.

18. There was nothing in the personal circumstances of the applicant to warrant any reduction from this.

19. This application is also dismissed.

Representation:

Mr. Andrew Bruce, S.C., Ag. D.D.P.P. & Mr. Raymond Cheng (D.P.P.) for Respondent

Mr. James H.M. McGowan instructed by M/S Miller Peart De Witt for Applicant