HKSAR v. Li Ho Fung
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CACC 63/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 63 OF 2003 (ON APPEAL FROM DCCC NO. 854 OF 2002) ---------------------------
--------------------------- Coram: Hon Stuart-Moore V-P, Woo JA and Stock JA in Court Date of Hearing: 18 September 2003 Date of Judgment: 29 September 2003 ----------------------- J U D G M E N T ----------------------- Hon Woo JA (giving the judgment of the Court): Introduction 1.On 12 February 2003, the applicant Li Ho-fung was convicted by Deputy Judge E Yip in the District Court of two charges of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210 and was sentenced to three years' imprisonment on each charge, concurrent. Originally, the applicant applied to this Court for leave to appeal against both conviction and sentence. At the hearing before us, he abandoned his application against sentence, which was accordingly dismissed. 2.The applicant was the 4th defendant (D4) at the trial. The three other defendants, D1, D2 and D3, also faced the two blackmail charges together with the applicant, but they were acquitted after trial. 3.The particulars of offence of the first charge were that D1, D2, D3 and the applicant, on or about 24 November 2001, in Hong Kong, together with other persons known as Chung Kin-li, Li Wing-ming, Mr Wong, Ah Mo, and Ah Ming, with a view to gain for himself or another, made an unwarranted demand of $5,200,000 Hong Kong currency from Sun Kai-lit with menaces. The particulars of offence of the second charge were the same, save that the date was on or about the 29 November 2001 instead of 24 November 2001. The prosecution's evidence 4.The prosecution's case was summarised by the judge as follows:
5.The important aspects of the prosecution evidence, as narrated by the judge in his Reasons for Verdict, and found by him as facts, were that the victim's son Eric had got to know Chung Kin-li, nicknamed "Ah B" when Ah B attended the victim's company to set up a website. Eric and Ah B became friends. In June 2001, Ah B invited Eric to jointly operate a courier business. Thereafter, Ah B introduced to Eric Ah Ming and Ah Ming's assistant Ah Bun (D3). Ah B told Eric that Ah Ming would pay them a commission for couriering foreign currencies from one place to another. 6.In August 2001, Ah B introduced Eric to one Mr Wong. Ah B told Eric that Mr Wong had a bank in Europe and that Mr Wong had an assistant, Ah Mo, who was not present in the meeting. Ah B and Eric would earn a commission for couriering money to and from Mr Wong's place and after exchange respectively. 7.On 11 October 2001, Ah B and Eric formed a partnership and had it registered as "Yorkland Enterprise". 8.On 7 November 2001, Ah B asked Eric to prepare and print out a receipt for HK$13m. He said that they would collect a suitcase from Ah Ming for couriering to Ah Mo's place in Fanling. That night Ah B drove Eric to the Regal Airport Hotel. D3 handed them a suitcase. Eric simply handed the receipt to Ah B. Eric did not know what was inside the suitcase. Later that night, Ah B and Eric handed over the suitcase to Ah Mo as appointed. 9.On 9 November 2001, Ah Mo telephoned Eric for him to retrieve the money that night in Pak TinVillage. Eric asked Ah B to go together but Ah B had to go to the Mainland and Ah B asked Eric to go there alone. At sometime after midnight, Eric arrived at the village alone and saw Ah Mo with the same suitcase. All of a sudden, an alarm sounded and a man hopped out and shouted "Police, freeze!" Eric had not yet got hold of the suitcase on the ground when Ah Mo pulled Eric to flee the spot together. After running for 10 minutes, they stopped. No one was after them. Eric asked Ah Mo why they had to flee. Ah Mo's reply was to the effect that if they did not flee, they would be arrested. Eric informed Ah B of the incident while Ah B was still in the Mainland, and went home. 10.On 11 November 2001, Ah Ming met with Ah B and Eric in a restaurant. D3 sat at the same table. Ah Ming was very angry and asked Eric to repay $13m. After the meeting, Ah B suggested to Eric to borrow $6.5m from the victim. Ah B volunteered to top up the remaining $6.5m. Later Ah B and Eric had a conference phone call with Mr Wong. Mr Wong said Eric was so lucky to have been saved by his "boy". But he was very angry for the loss of the money. 11.On 13 November 2001, Eric grew concerned about his personal safety. After a brief mention of the events to the victim, he left Hong Kong. The victim received many telephone calls looking for Eric at home but he did not reveal Eric's contact phone numbers or whereabouts. 12.On 14 November 2001, after consulting his lawyer, the victim set up a recording machine in his home telephone. He received a number of phone calls on 14, 15 and 16 November 2001. Ah B made some of those calls. On 16 November 2001, a caller who identified himself as Ah Ming told the victim that the previous calls looking for Eric had in fact been made by his fokies. He asked the victim to repay a debt of $6.5m for Eric. He said he would not enforce it by legalistic means. He asked the victim to think it over and call his mobile phone on 19 November. He promised the victim would receive no further phone calls from his fokies looking for Eric on the matter. True to his promise, the victim did not receive any such calls. 13.On 19 November 2001, the victim phoned Ah Ming as appointed. The victim refused to pay. 14.On 23 November 2001, Ah Ming phoned the victim and asked him to view an image file in a private email account. He gave the victim the sign-in name and password for a particular Hotmail account. 15.On 24 November 2001, the victim viewed the image file. As described by the judge,
16.Ah Ming phoned the victim and asked how he felt about the image file. Ah Ming asked him to repay $6.5m for Eric. Ah Ming would phone him the next day. 17.On 25 November 2001, Ah Ming phoned the victim and offered a 20% discount, reducing the sum to $5.2m. The victim said he would try to raise the cash and Ah Ming gave him four days' time. 18.On 26 November 2001, the victim reported the matter to the police. Subsequently, the police monitored the whole matter and instructed the victim on the steps to be taken. 19.On 29 November 2001, the victim arranged with Ah Ming to handover the cash at a bank. Ah Ming eventually cancelled the arrangement for having seen suspicious people in the vicinity. 20.On 3 December 2001, Ah Ming phoned the victim and asked for the $5.2m. The victim agreed to handover the money the next day. 21.On 4 December 2001, numerous phone calls were made between Ah Ming and the victim to discuss the detailed procedure and persons to be present in the sofa area on the ground floor lobby of a hotel in Tsimshatsui, where the collection was to take place. 22.At the hotel lobby, undercover police officers saw D3 walking past the other side of the lobby and looking at them. Shortly afterwards D3 met with the applicant. The two sat down at the café on the other side of the lobby. 23.Soon, D2 walked up to the sofa area and said he was collecting the money for Ah Ming. The undercover police officers requested to see D2's identity card but D2 refused. D2 and the undercover police officers talked on their respective mobile phones. Soon D1 came and told them that he was the one to produce his identity card. The police arrested and cautioned D1 and D2 in the sofa area, and within seconds D3 and D4 were arrested at the café, for blackmail. The four defendants remained silent. The police found a mobile phone on each of the defendants. It was about mid-noon. 24.Shortly before 3:55 pm that day, PW4 DPC48667 took the applicant to his home for a search. The applicant's father, an Indonesian maid and an infant were there when they arrived. There was a computer in the sitting room. The police found the same image file in the computer. Under caution, the applicant replied that the computer belonged to him and it had nothing to do with his family members. He signed to confirm the accuracy of the entry of this reply in a post-record written by PW4. Despite challenge by the applicant to the admissibility of this reply, the judge was satisfied beyond all reasonable doubt that it was made voluntarily. 25.The judge also admitted the call records of various phone numbers used by the four defendants and the persons named in the charges. The defence case 26.None of the defendants elected to give evidence. D2, however, called his elder brother as a character witness. D1, D2 and D3 had a clear record. The acquittals of D1, D2 and D3 27.While the judge accepted the prosecution's evidence, he acquitted D1, D2 and D3. He said:
The evidence against the applicant 28.The judge found the applicant guilty as charged. He set out the specific evidence relating to the applicant in his Reasons for Verdict. The judge found that Ah Ming was the leader of the blackmail gang and that Ah Ming was extremely astute and cautious. The judge went on:
Grounds of appeal 29.The grounds of appeal are simply various facets of the contention that there was insufficient evidence for the judge to draw an irresistible inference of guilt against the applicant on the two charges. 30.On the other hand, the respondent's argument is that apart from the matters cited above in the Reasons for Verdict against the applicant, there were telephone records as admitted by the judge, which, viewed in the circumstances of all the evidence, proved the applicant's guilt. Analysis of the evidence 31.One can conveniently start with the statement made by the judge in acquitting D1, D2 and D3, which is cited above and repeated here:
32.What differentiated between the applicant and the three other defendants was the fact that in a computer located at the sitting room of his home an image file containing the scandal report as seen by the victim was found. The applicant was linked to this computer by his admission:
33.Mr Gavin Shiu, for the respondent, has drawn our attention to the circumstances under which the image file was found on the computer. The computer was originally switched off when it was found in the sitting room. On the computer desktop, that was the screen that immediately presented itself when the computer was switched on before any computer applications were opened, a folder was seen. PW4 without hesitation opened the folder and saw that there were two files in the folder. He selected one that was named "650.jpg". The "650" is similar to the Chinese way of saying "six hundred and fifty" tens of thousands, which would be the same amount as $6.5m demanded from the victim at the early stage of the course of blackmail. The content of the file was the same as the image file seen by the victim. 34.The applicant was present, and PW4 cautioned him, in response of which the applicant made the admission. The statement made by PW4 that preceded his admission was as follows:
35.Mr Shiu highlights the words "in your presence" above and submits that the applicant's admission not only related to the ownership of the computer, but also amounted to an admission of the computer's containing the incriminating image file and the implied threat or menace of the content. This submission is based on the fact that the officer opened the computer and saw the file in the presence and with the knowledge of the applicant. However, in his Reasons for Verdict, the judge made no mention of the content of the caution administered on the applicant; he merely said:
36.What the judge meant was that he found the admission to be true and that it was accurately recorded by the officer in the post-record and that he attached full weight to it. He apparently did not rely on the mere fact that the image file was found in the computer in the presence of the applicant to draw the inference of guilt against him. 37.It might be argued that the applicant's admission "the computer is mine" did not include any admission relating to the image file found in it. But that would only be part of the admission. The second sentence of the admission, ie, "It has nothing to do with my family" is most significant. An irresistible inference in the light of all the circumstances can be drawn from this second sentence that the applicant knew that there was something incriminating stored in the computer, for otherwise there would have been no reason for him to attempt to detach his family members from it. 38.We are satisfied that in the light of all the circumstances of this case, the applicant's admission as a whole can justifiably be used as an admission of knowledge of the existence of the image file in the computer and that the applicant knew that the image file had been used as a menace uttered to the victim. The judge was fully justified in drawing the inference of the applicant's knowing participation in the blackmail scheme headed by Ah Ming. 39.Mr Shiu has also drawn our attention to the numbers of the mobile phones found on the four defendants upon arrest and the phone call records of the four defendants and four of the five persons named in the charges. Specifically, he refers us to 22 telephone exchanges between D1's mobile phone numbered 6072-0085 and the applicant's mobile phone numbered 9103-0334 between 10.27 and 17.35 hours on 29 November 2001. On that day, the first but aborted attempt to collect the demanded money at a bank took place. On the same day, there was one phone exchange at 16.56 hours between D2's mobile phone numbered 9158-3481 and the applicant's 9103-0334. At 12.36 hours on the same day, there was a phone exchange between the applicant's 9103-0334 and Chung Kin-li's 9308-8093. At the same 12.36 hours there was also an exchange between the applicant's 9103-0334 and Li Wing-ming's 9761-0309. Between 10.22 and 17.17 hours, there were 22 telephone exchanges between the applicant's 9103-0334 and Li Wing-ming's two phones numbered 9097-7099 and 6111-1216. 40.The telephone call records of 4 December 2001 are also significant. It is to be remembered that this was the day when the collection of money was to take place at the sofa area of the hotel lobby. It was D2 who went up to collect the money and D1 joined in later. Before then, D3 and the applicant positioned themselves at the same table in the café on the other side of the lobby, with a vision covering the sofa area. The call records showed that between 10.07 hours and 11.54 hours, the applicant called Li Wing-ming six times; Li Wing-ming called the applicant four times; the applicant called Chung Kin-li two times and called D2 three times; and D1 called the applicant twice. Indeed there were also records of exchanges of D1 with Chung Kin-li and Li Wing-ming, D2 with Li Wing-ming, D1 with Li Wing-ming, D2 with D3, and D2 with Ah Ming. 41.These telephone call records do properly give rise to incriminating suspicions against the applicant and the other three defendants alike. However, as the judge said, correctly in our view, in the absence of other evidence he was unable to conclude that Ah Ming had told the defendants the blackmail scheme to make them knowing participants in the collection at the hotel. But as said before, the applicant's admission linking him to the computer and the image file in it made all the difference between him and the three other defendants. 42.Moreover, Mr Shiu in his submissions has pointed out that one of the telephone numbers left by Ah Ming with Eric and Ah B for contact was found to have a subscriber called Lee Wing-ming, Eric with Hong Kong Identity No. XXXXXXX(X) and contact number 9097-7099. Li Wing-ming was also found to be the subscriber of mobile phone number 9761-0309. The subscriber address used by Li Wing-ming for both numbers 9097-7099 and 9761-0309 was the same subscriber address used for 9103-0334, the telephone seized from the applicant on 4 December 2001. Li Wing-ming was, however, the named subscriber of 9103-0334. Notwithstanding, these pieces of evidence only enabled the judge to say:
43.Indeed, Li Wing-ming was one of the persons mentioned to be the blackmailers in the particulars of offence of the two charges. Li Wing-ming was admittedly the younger brother of the applicant. There was also some evidence to show that Li Wing-ming had a room in the applicant's home. All these might raise a reasonable doubt as to whether the applicant used the mobile phone 9103-0334 on any date prior to the morning of the 4 December 2001, but the judge did not use them against the applicant. They might also raise a doubt whether the image file in the computer found in the applicant's sitting room, which computer admittedly belonged to the applicant, was generated or stored by Li Wing-ming instead of the applicant himself. However, the applicant's admission, which the judge found to be true and placed full weight on it, excluded Li Wing-ming as a family member of the applicant who had anything to do with the computer. If the admission was not true or it had any innocent meaning, it would be for the applicant to explain. Insofar as it was suggested in argument that the reference to family members might have been a reference merely to those family members present upon arrest, who did not include Li Wing-ming, this is an argument that does not undermine the applicant's concurrent insistence that the computer was his alone. 44.Mr Andrews, for the applicant, submits that the grounds of appeal may be condensed to a single proposition, namely, taking the primary and intermediate facts found by the judge, either singly or as strands in a cable, whilst redolent of suspicion, they were insufficient to support his findings of guilt. He refers us to Li Defan & An v HKSAR [2002] 1 HKLRD 527 at 538 to phrase his proposition thus:
45.The passage is from Weissensteiner v The Queen as cited by Lord Hoffmann, NPJ in Li Defan. Li Defan is the most recent authority for the rule that in an appropriate case a judge is perfectly entitled to regard the failure of the accused to give any explanation on oath as strengthening the inference to be drawn from the prosecution case. 46.In the instant case, the judge did not use the failure of the applicant to give evidence against him. What the judge relied on was the applicant's admission, which was evidence adduced by the prosecution. The applicant chose not to give any explanation on oath about the admission, and in the particular circumstances of this case the inference drawn by the judge from the prosecution evidence would thus, in our judgment, have been strengthened. Conclusion 47.For the above reasons, we are satisfied that the convictions are not unsafe or unsatisfactory. We dismiss the application against conviction.
Representation: Mr Gavin Shiu, SADPP (Ag) and Mr Richard Ma, Government Counsel, both of the Department of Justice, for the Respondent Mr Robert Andrews, instructed by Director of Legal Aid, for the Applicant |