The Queen v. Yeung Chung Kwan

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

1987, No. 19

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BETWEEN

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Coram: Hon. Kempster, J.A., Penlington & Barnes, JJ.

Date of hearing: 15th January, 1987

Date of judgment: 15th January, 1987

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JUDGMENT

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Barnes, J.:

1. The applicant was convicted by Deputy Judge Chan on four charges but so far as this application is concerned we need only concentrate on his conviction on the charge of blackmail. The charge alleged that he with two others on 3rd February, 1986 at the Luen Bong Restaurant with a view to gain for themselves made an unwarranted demand of $10,000 from LUK Chi-yin with menaces.

2. The prosecution case was that the victim LUK Chi-yin was approached by the first defendant (this applicant being the second defendant in the trial). Sometime in January, 1986 there was a discussion between the first defendant and Luk concerning Luk's family in China. The first defendant represented to Luk that he was in a position to assist Luk in getting his family to come to Hong Kong from China and it was agreed between Luk and the first defendant that Luk would pay the first defendant $30,000 for this service.

3. The approach to Luk by the first defendant was made at Luk's hawker stall. He was a street hawker. Two weeks after this approach the first defendant phoned Luk and told him that he had been to China in connection with the immigration of Luk's family to Hong Kong and that as a result of his discussions with the officials in China, it would now cost $70,000 for the family to be brought to Hong Kong. Luk was not happy with this change in the arrangement and would not agree to pay $70,000.

4. In the ensuing discussion between Luk and the first defendant the first defendant said that as a result of his going to China trying to make the arrangements he had expended $10,000 of his own money and that Luk should reimburse him. Luk refused. Subsequently Luk was visited at his hawker stall by the first defendant accompanied by five or six other people. The first defendant invited Luk to go to a restaurant to have a chat and Luk went.

5. At the first restaurant they went to the demand for $10,000 was repeated by the first defendant. Luk refused to comply and there was a heated discussion and the group was asked to leave the restaurant. They then went to the Luen Bong Restaurant. There the first defendant repeated the demand and it is during the discussion at this restaurant that the evidence of Luk makes clear that the applicant was in the group with the first defendant. Luk refused to pay and the group including the first defendant and the applicant then assaulted him by punching him.

6. Following the assault upon Luk the demand for payment of $10,000 was repeated and the menace upon which the prosecution relied in support of the charge of blackmail was then made. The menace was, in effect, that if Luk did not pay he would not be allowed to continue hawking at-his street stall. Luk refused to pay. That in essence was the prosecution case.

7. The defence case was that the demand for payment of $10,000 was in fact made but the reason for it was not that there had been any arrangement for Luk to bring his family to Hong Kong from China, but that there had-been a prior discussion between the first defendant and Luk regarding a business transaction involving the purchase of video recorders, it being the obligation of Luk under the agreement to supply the video recorders and of the first defendant to pay for them. There was, according to the defence, an arrangement between the first defendant and the applicant to finance this particular scheme. As a result of the agreement for the purchase of the video recorders, the , first defendant and the applicant paid to Luk $10,000 by way of deposit.

8. About a week before the video recorders were due to be delivered according to the defence case, Luk contacted the first defendant and indicated that he would be unable to deliver and when the day for delivery arrived Luk did not deliver and the first defendant with the applicant decided to seek recovery of the money.

9. That was the defence case. The learned trial judge rejected the defence evidence and accepted the version put forward by Luk.

10. On the hearing of this application the only ground argued is that the trial judge failed to give due consideration to the reasons advanced by the applicant as to why Luk owed the money, and it is submitted that the reasons for verdict contain no finding as to what the first defendant did tell Luk about spending on expenses, and no finding as to whether what he told him was true or false. Since it could have been true the trial judge did not in effect make a proper finding as to whether the demand was unwarranted.

11. In his reasons for verdict the learned trial judge after reciting his reasons for accepting the evidence of Luk and rejecting the evidence of the defendants said that he was satisfied beyond a reasonable doubt that there had been a demand made, that it was prefaced by an assault made under a threat and that he was satisfied that the demand was made with menaces and that it was "quite unwarranted”.

12. It is submitted that the judge having rejected the defence case, nevertheless was required to look at the prosecution evidence to see whether the element of unwarranted demand had in fact been made out and that the judge should have indicated how he came to the conclusion that the first defendant did not have a belief in either of the matters mentioned to paragraphs (a) and (b) of section 23(1) of the Theft Ordinance. It is submitted that on the prosecution evidence if the judge had properly considered the matter he might still have found that there were no reasonable grounds for making the demand but that he was however obliged to consider the evidence and show how he came to that conclusion, and that in his reasons for verdict he had not done so.

13. It is sufficient to say that it was held in R. v. Chan King-man[1] that it is not necessary for a District Judge to give reasons for verdict along the lines of a summing-up. What he is required to do is show that he has adverted to all the matters of law to which he should have regard in coming to a proper verdict. These reasons show that the trial judge did do that.

14. Here there was no evidence that the first defendant had, or could have had, reasonable grounds for making the demand as a refund of expenses. He gave evidence himself. He gave no evidence of having any such belief. There was before the judge no evidence from which he could possibly conclude that there were reasonable grounds for making the demand on that basis.

15. We, therefore, come to the conclusion that there is no substance in this ground. As it is the only one on which the applicant now relies application for leave to appeal is refused.

Mr. A Bell (Driver & Co.) for the applicant.

Mr. I. G. Cross for the respondent.

[1]  [1980] H.K.L.R. 10S