Ng Choi-fai v. The Queen

CACC001063/1977

Coram: Huggins, J.A., Pickering, J.A. and McMullin, J.

Date of Judgment: 30th January, 1978.

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JUDGMENT

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1. The appellant appeals against convictions on seven counts of blackmail and seven counts of consequential theft arising out of his alleged importuning of three small traders in the vicinity of Wong Tai Sin Lower Estate, Kowloon in the months of May and June 1977.

2. The prosecution were in the difficulty that, as the learned judge noted in his reasons for verdict, all three complainant witnesses gave evidence against the appellant with some degree of reluctance a fact which the learned judge ascribed to fear. Indeed, he took the view that they were "scared stiff" of giving evidence against the accused and that they had, to quote his own words, "played down their stories because of that". He nevertheless found sufficient substance in the evidence of all of them to convict upon all charges. The evidence of CHUNG Chau-tong, the complainant on the first four charges was briefly to the following effect: On the 12th of June 1977 at 10.30 in the morning two men whom he did not know came to his provisions stall at Wong Tai Sin and demanded $200 from him. He refused to pay, having no money with him, and one of the men struck him. It would appear that the preliminary conversation prior to the blow took about 10 minutes for the complainant told the court that the accused who had not been with the two men at the outset suddenly appeared about 10 minutes after they arrived but in time to see him being hit. The accused intervened and remonstrated with the two men and prevented them from striking the complainant again. He also persuaded them to compound the matter by giving him $40 which he said he would give to the two men on behalf of the complainant and all three then left.

3. On the 17th of June at 6.30 in the morning the man who had struck the complainant returned with another man and once again demanded $200. On this occasion the accused also turned up 10 minutes later and once again persuaded the complainant to hand $40 to him instead of the $200 which he said he would give to the two men. The complainant said that he was afraid he would be assaulted if he did not pay. It is clear from his evidence that the assault he anticipated had nothing to do with the accused who, he said, acted 'nicely' and tried to persuade the other two not to hit him. He paid that money and the three went away once more. In cross-examination he said that the accused had done nothing to make him afraid that he would be beaten. He added that the accused had been a customer of his and had always been nice to him. He has known the accused by sight as a resident on the first floor of his own building for several years.

4. The 5th to 9th charges concern the complainant, LAU Yin and three separate incidents. The Crown was endeavouring to prove unwarranted demands on the 10th, 14th and 17th of June in his regard. However so reluctant did this witness prove to be that the prosecutor felt impelled to apply to the court to treat him as hostile on the basis that he was departing materially from a statement in the prosecutor's possession. The wisdom, no less than the propriety, of this course might well be questioned but at all events the testimony given by this witness might be summarised as follows: In examination-in-chief he said that he had known the accused for several years and had, in common with many others in the vicinity, paid him $10 as what he called a watchman's fee every month. This is what happened upon the 10th of June, the subject matter of the 5th charge. On the 14th of June the accused came again and asked for $5 which he was unwilling to give but he gave it to him anyway in order to get rid of him and to stop him from obstructing his business. He added however that the accused had never interfered with his business. He went on to say that on the 17th of June at about 7.30 two people came to his roast meat stall and entered it and asked him for $60. He refused to pay this. The accused at this time was standing outside. One of the two men became angry and threw a stool at him. The accused at this point entered and remonstrated with the two men explaining that they were intruding upon "his domain". He then persuaded the complainant to give him $60 and promised him that he would not be troubled any more and followed the other two out. At this point leave was given to treat him as a hostile witness. Under cross-examination by the prosecutor he denied that he had told the police that the accused had threatened to assault him or that the accused had behaved in a brutal manner on the 10th of June or yet on the 14th of June. He further denied that he had said to the police that the accused had come on the 17th of June with the two other men to his stall. His police statement was produced and it does indeed disclose these allegations. Shortly after that he said that he had told the police that the accused had come with two other men to his stall and that all three had demanded $60 and that he had told the police that the accused was present when the others attacked him with a stool and that that was true. Immediately after that he said that the stool was thrown before the accused entered and the accused was not present when the other two threatened him with violence. Immediately after that he said that the accused was present all the time. There was a short adjournment at this point. Upon being recalled to the witness-box he said that he agreed that the accused had behaved brutally towards him on the 10th of June that he was afraid his stall would be set on fire if he did not pay and that he felt that the money he had been paying to the accused was a protection fee rather than a watchman's fee. Then he said that he did not agree that on the 14th of June the accused had threatened to assault him; the accused would merely have hung around if he had not paid him the money upon that date. Immediately after that he said that the accused was aggressive on all three occasions and that he had been afraid of him for some time. The witness then was cross-examined by counsel for the defence and he changed his story yet again saying that neither on the 10th of June nor on 17th of June had the accused threatened him nor had he been brutal towards him on those dates. He said that he regarded the accused's presence as a threat to him and in general he regarded him as a nuisance. He further said that the accused was not present on the 17th of June when the two men came and threatened him but that he was present when the stool was thrown and that after that incident the accused had taken it up and carried it out of the stall and had then come back and asked him for $60 saying that he would be responsible for any injury which might later occur. In re-examination he said that the accused did not expressly threaten him on any of the three occasions but he felt that he was threatened.

5. Notwithstanding these extraordinary tergiversations and notwithstanding the fact that he had permitted the witness to be treated as hostile the learned District Judge nevertheless chose to regard him as fundamentally truthful. That might have been a reasonable approach had the witness, in cross-examination by the prosecutor, simply stated that he had spoken the truth to the police and had only altered his story under fear when he was giving evidence in court. It may be that the learned judge would then have been reasonably entitled to overlook the contradictions and to accept the witness's affirmation of his earlier statement as being the truth. From the foregoing recital of the many turns which his evidence took, however, it will be apparent that although the complainant had told the police that the accused had actually threatened him with violence yet neither to the prosecutor nor to defence counsel at the trial was he prepared to admit that that was the truth.

6. In view of that it is difficult to see what justification there was for treating him as other than a discredited witness whose evidence could not advance the prosecution case further. Quite apart from that consideration, however, we think that the proper view to be taken of this man's evidence was that it was so unsatisfactory as a result of its many inconsistences and backtrackings it was simply unsafe to rely upon it in proof of those five charges.

7. The third complainant, WONG Kwong-tung, was the operator of a pork stall on the ground floor of Block 5 Wong Tai Sin Lower Estate where he has been in operation for the previous four years. He said that on the 20th May the accused and another man came and asked him for money. The complainant was well acquainted with the appellant and had known him for about four years during which time he had, on a number of occasions, paid the appellant so-called watchman's fees. This was ostensibly for the appellant to look after the complainant's stall and belongings. The witness explained that he paid this fee of $10 a month for all the time he has been there. Although he did not regard him as a watchman the appellant had told him that this area was under his control and he had evidently made no demur to this claim. Also the complainant said he had lent the accused money on hundreds of occasions and this money had never been repaid. On this occasion, on the 20th of May, when the accused and another man presented themselves and asked him for money the complainant paid them $10 as otherwise customers might not come to his stall if they saw the accused and the other man hanging about. No threats were made against him but he felt there was a threat implied in the accused's conduct and in what he said. On the 17th of June at about 3.30 p.m. the accused turned up again, this time alone, and asked for $10 for a meal. The complainant said he did not have the courage to refuse him as he thought the way of asking had implied some threat. He gave him the money and the accused went away.

8. What seems to be common to the testimony of all three complainant witnesses and what might indeed be regarded as reliable and uncontroverted is that the accused leeched regularly upon these witnesses and upon other traders in the vicinity. The term "watchman" is a ready euphemism to mask the activities of a petty salesman of "protection" amongst these vulnerable small traders. It is clear that until the events of the 17th of June none of these traders were prepared to take a stand against him or to report him to the police. This appears to have been because the exactions were small and were perhaps regarded as a fee worth paying to avert the attentions of other and more rapacious predators. That they were not wholly efficacious for this purpose is evident from the testimony of Lau who said that over years he had paid money in such exactions to many different individuals and that, indeed, the traders in the area on the average seldom retained more than $6 on every $10 which they earned. That has a ring of truth, and it is against that lamentable background that the events charged in the various charges must be judged. It is to be noted that none of the complainant witnesses at any time had ever laid complaints with the police concerning the activities of the accused. The learned District Judge noted this fact in relation to the witnesses Lau and Wong but the record does not disclose that even CHUNG Chau-tong, who might have been expected to react to the demand for $200 as a kind of last straw, made any report even after that event. The police officer LO Pak-leung, who gave evidence, said that he arrested the accused as a result of information given him by his informer on the 18th of June at about 8.30 p.m.

9. In addition to what has already been said there are other matters which give rise to misgivings in relation to these convictions. The Crown sought to introduce in evidence two statements allegedly made voluntarily to the police by the accused shortly after his arrest. Counsel for the appellant did not object to the admissibility of these statements and they went in. In cross-examination almost at once thereafter however it became apparent that counsel was alleging impropriety on the part of the police in the taking of the statements. Making the best of the situation the learned District Judge then launched into a trial of this issue. In the circumstances we think that that was a proper course. Although nominally admitted in evidence the statement was by then a part of the corpus of the Crown's case only in a very bare and technical sense and had been admitted through error and had not in any way affected the conduct of the defence case. The appellant gave evidence to the effect that he had been induced to make these statements by threats of being charged with other offences if he refused to do so. In the course of cross-examination he said they were dictated to him but then he added that they were both wholly true. In the first the appellant is recorded as having said:

"Yes, I got the money from Uncle Chung (Chung Pak). I got $40. I shared it with Ah B and Lit Chai. They went away. I do not know their addresses."

The second statement was recorded the following day. In it he says:

"I do not mind to tell you frankly. Apart from collecting money from Uncle Chung (Chung Pak), I have also collected money from 'Pak Hei' Roast-meat stall, situated beside Block 5, and the pork stall, situated next to (the roast-meat stall). I forgot how many times. The money has been spent already. I can bring you there."

The preamble to each of these statements introduces the allegation of blackmail and it might be argued, though it does not appear to have been argued in the court below, that that fact would give to these statements a fully confessional character. The learned District Judge however expressly said that he was not placing any reliance upon these statements which he did not regard as being admissions to the offences charged and he expressly founded the convictions wholly upon the evidence of Messrs. Chung, Lau and Wong.

In these circumstances and in view of the fact that the appellant in giving evidence wholly denied the allegation of blackmail we think this court should not resort to these statements either.

10. The appellant's story as to Chung's complaints (Charges 1 to 4) was that on the 12th of June he had merely borrowed $20 from the complainant and that on the 17th of June he had interceded on the complainant's behalf and prevailed upon the two men who had assaulted him, and whom he knew as Lit Chai and Fat Chai, to compound their demand by accepting $40 which he obtained from Chung and gave to Fat Chai. As to the 5th to 10th charges the appellant denied that such incidents as had been erratically deposed to by the complainant Lau in relation to June the 10th and June the 14th. As to the incident on June the 17th, he said that once again he had intervened on this complainant's behalf between the complainant and Fat Chai and Lit Chai and had persuaded the complainant to part with $60 and the others to compound their demands for that amount. It will be remembered that amongst the statements upon which the witness Lau did not turn his back was the statement that the appellant had put the two men to the question when he found them molesting Lau, querying their right to intrude upon his domain. He also appears to have held unvaryingly to the story that the $60 was given to these two men. The witness Lau was clearly a badly discredited witness upon whose evidence this court should no more place reliance than should the court below have done. These facts are mentioned as being at least congruous with that part of the appellant's story which maintained that he had endeavoured to earn his protection fees. The convictions on the first to fourth charges were all upon the basis that the accused had been in co-operation with these two men in obtaining money for himself and them as well. In the end, however, we are left with a definite doubt whether the sums laid in the first to fourth charges inclusive (or any such sums) were exacted from the complainants by menaces which led them to pay under fear of reprisals at the hands of the appellant or persons in co-operation with him. In the course of his evidence the appellant frankly admitted that he had collected money from people of Wong Tai Sin for one to two years and that he had taken over this area from somebody called Tsang who had become "too old to do the job". It was his case that he had collected $10 a month from various stall holders in return for looking after their property. The judge rightly rejected the suggestion that these payments were anything in the nature of a legitimate watchman's fee. In the context of the evidence as a whole including that given by the appellant himself it seems evident that he was collecting small sums as a kind of protection fee from all these stall holders. These regular exactions are not only illegitimate but may reasonably be regarded as the fruit of fear. Had "watchman's fees" been the subject matter of the first to fourth charges it would have been a legitimate inference that these were indeed the fruits of blackmail. But the evidence seems to disclose rather that those sums were exactions by persons other than the appellant and we think there is at least sufficient doubt as to his role in relation to them to make his convictions on those counts unsafe and those convictions are accordingly quashed and the sentences set aside.

11. As to the fifth to tenth charges concerning the complainant Lau although four of those charges concern small exactions by the accused acting alone on the 11th and 14th of June yet in view of the general untrustworthiness of that witness's evidence we do not think that it would be safe to let the convictions stand and they are accordingly quashed and the sentences are set aside.

12. None of the above criticisms however seem to touch the evidence of the third complainant, WONG Kwong-tung. He said that he had been paying the accused $10 per month for all the four years he has been there. But apart from that on hundreds of occasions the accused had asked him for money which he had paid. He recalls in particular two occasions, those with which the eleventh to fourteenth charges are concerned. On the first of those, the 20th of May, the appellant and another man came and asked him for money and refused to go away when he said he had not got any. He was afraid that if he did not give the appellant some money customers would not come if they saw the two men hanging about his stall. He felt that there was a threat in the request and he paid him $10. On the 17th of June the accused came alone and made a similar request and once again was given $10. The witness said that he did not have the courage to refuse. The whole background of the accused's dealings with the traders in that area was sufficient warrant for this fear. As did the learned judge we note that the sums charged in these four charges are not the same as those mentioned by the complainant. It cannot be said that the variation makes any material difference to the validity of the convictions. Accordingly the appeal is allowed to the extent already indicated but the appeal as to charges 11 to 14 are dismissed.

13. It will be evident that on the view of the evidence which this court has felt compelled to take the appellant emerges as a rogue of a less baneful character than that ascribed to him by the learned District Judge. Something midway between a perennial cadger and a rather disagreeable type of petty criminal. There is no doubt however that men of his stamp constitute a pernicious influence in the lives of decent small traders such as these complainants evidently were. Moreover his previous convictions indicate a triad background. In all the circumstances we think that the existing sentences of seven and five years in respect of the surviving convictions are excessive. Those sentences will be set aside and for them will be substituted respectively sentences of four years and two years. All sentences to run concurrently.

Representation:

Appellant in person.

W.J. Kitson, Crown Counsel for Respondent.