HKSAR v. Yeung Wan Kam

CACC 398/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2004

(ON APPEAL FROM DCCC NO. 500 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore V-P, Stock JA and Lunn J in Court

Dates of Hearing : 8 January 2006

Date of Judgment : 8 January 2006

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.This is an application for leave to appeal against conviction.  On 19 August 2004, the applicant was convicted by Judge Gill in the District Court of two charges.  The first alleged that on 29 March 2004 he claimed to be a member of a triad society and the second that on the same day and at the same place, namely, inside a restaurant called the Super Rich Restaurant in Tin Wan, Aberdeen, he made an unwarranted demand of $3,000 with menaces.  The application for leave to appeal against conviction in relation to Charge 1 has been abandoned and, in consequence, dismissed.  We are therefore only concerned with the second charge.

2.The facts can be shortly stated.  The Super Rich Restaurant was due to re-open on 29 March 2004.  The owners sought the assistance of the police because they feared triad-related demands for protection money.  A police officer posed as a senior manager of the restaurant.  The owners had placed bona fide notices outside the restaurant inviting applications for jobs.  The applicant telephoned the restaurant on 28 March and spoke to a Mr Kwong.  The applicant told Mr Kwong that he wanted to talk to him in private, and Mr Kwong passed the receiver to the officer.  The evidence of the officer, which the judge accepted, was that the applicant then told him that he, the applicant, had been looking after Tin Wan for about ten years, that he knew the restaurant, that he knew it was about to re-open and that he wanted to talk in order to ‘settle matters’.  An arrangement was made for him to come to the restaurant the next day.  When he came the following day, he introduced himself to the officer, said that he was the caller of the previous evening and that he was a member of the Wo Hop To.  He repeated his contention that he had been looking after Tin Wan for ten years and then he said: “You would not want anyone to cause trouble.  It would be undesirable to have someone to come to the restaurant drunk and cause damage and other trouble.”  The officer asked what should be done, and the applicant said: “Let’s make monthly $3,000 and you pay six months first.  If business proves to be good, we shall discuss how much should be added to that.”  He added that it would be easy for the restaurant to account for the money by saying that it was the wages of an odd-job worker.  He added that later on, “some juniors would be in contact.”

3.The applicant gave evidence and denied all knowledge of claiming to be a member of a triad society or of asking for money or of talking about people who might come to make trouble.  Rather, he said, he had come to seek employment and, for reasons quite unbeknown to him, the police officer suggested that he, the applicant, be given a red packet containing $3,000 or $5,000.

4.The judge rejected the applicant’s evidence and accepted that of the prosecution witnesses and convicted the applicant of both charges.  In relation to the second charge he said this:

“

48.

… I am satisfied that reference to being a triad member, with the not so subtle comments going to the undesirability of drunks creating a nuisance, damaging property and disrupting business, to have been looking after the neighbourhood for 10-odd years, and to the fixing of a monthly payment hidden as a foki’s wages together amounted to an undeniable demand for gain made with menaces.”  (Reasons for Verdict).

5.The grounds of appeal are short and meritless.  It is said that the judge should not have convicted because no menaces were actually made by the applicant.  It is contended that because the applicant never said that he would ask anyone to cause trouble, the most that can be gleaned from his statements in the restaurant was the mere statement of a fact of life that drunk persons might come to such a restaurant and cause trouble.  It is contended as well that in using the phrase “not so subtle comments” the judge evidenced some doubt as to whether there was an actual menace: and similarly that the undercover officer was not sure himself what would happen if payment of the $3,000 was refused.

6.In the course of oral submissions, Mr Cheung accepts, as he was bound to, that the claim to be a member of a triad society was a frightening claim to make but not surprisingly was at a loss, in response to questions put by the court, to explain why other than in support of the allegations made against the applicant such a frightening claim was made.  It is difficult to envisage grounds more devoid of substance.  The judge’s reasoning succinctly encapsulated the nature of the threat and there was no other inference that could reasonably be drawn from the applicant’s conduct at the restaurant.  The application for leave to appeal against conviction is dismissed.

7.We have heard counsel on the question whether to order loss of time served under the provisions of section 83W of the Criminal Procedure Ordinance, Cap. 221.  In the light of what we have heard, we have decided not to make such an order.

Mr Michael Cheung Kin Bor instructed by Messrs Wilbur Ho & Co. for the Applicant

Ms Wong Kam Hing, SGC of Department of Justice for the Respondent