HKSAR v. Yiu Wing Sang, Samson
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CACC 312/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 312 OF 2007 (ON APPEAL FROM DCCC 272 OF 2007) ---------------------- BETWEEN
---------------------- Before: Hon Yeung JA, and McMahon J and Wright J in Court Date of Hearing: 5 September 2008 Date of Judgment: 5 September 2008 Date of Reasons for Judgment: 22 September 2008 ------------------------------------------------ REASONS FOR JUDGMENT ---------------------------------------------- Hon Yeung JA (giving reasons for judgment of the Court): Introduction 1.The applicant, Yiu Wing Sang, Samson appeared together with Pui Kam-lun (“Pui”) before Judge Longley in the District Court on an indictment consisting of 11 charges, two of which, namely the 3rd and 4th charges were directed at the applicant whereas the other charges were directed at Pui. 2.The 3rd charge alleged that the applicant claimed, on an unknown day in October 2003, to be a member of the “Wo Hop To” triad society, and the 4th charge alleged that he had, on the same occasion, blackmailed Madam Y, the operator of Good Luck Internet Restaurant (“the restaurant”). 3.The applicant pleaded not guilty to the charges. The judge acquitted him of the 3rd charge, but convicted him of the 4th charge and sentenced him to 4 years’ imprisonment. 4.The applicant sought leave to appeal against conviction. On 5 September 2008, we dismissed his application and these are the reasons. The Prosecution Case 5.Madam Y and her sworn-brother, Mr X operated a newspaper stall in Wah Fu Estate and since 1996, they had to pay a monthly “Tor Tei” fee to Pui who claimed to be a member of the “Wo Hop To” triad Society. 6.According to Madam Y and Mr X, the applicant was one of the people who regularly accompanied Pui to collect the monthly “Tor Tei” fees from them. 7.In 2003, Madam Y and Mr X set up the restaurant in Wah Fu Estate. The proprietor of a nearby restaurant, surnamed Wong had threatened them not to operate the restaurant. Soon thereafter on a day in October 2003, the applicant, together with a person called Chi Keung approached Madam Y and Mr X, saying there were “Hop To Chais”. 8.They warned Madam Y and Mr X not to run the restaurant unless they paid a monthly “Tor Tei” fee of $5,000. They further threatened Madam Y and Mr X that if they failed to succumb to the demand, someone might disrupt their business by placing cockroaches and mice at the restaurant. 9.After Madam Y and Mr X agreed to his demand, the applicant told them to say, should anyone try to cause any trouble, that the restaurant was being looked after by him. 10.The amount of the payment was bargained down to $2,500 and the applicant promised to ask for a further reduction from “the Company” (“Ah Kung”). The applicant further told Madam Y that she should pay him the money as Pui was in prison and therefore not available to collect the money from her. The applicant even told Madam Y that Pui was originally of a higher rank, but had been demoted to the same rank as him. 11.According to Madam Y, initially she paid the applicant in cash and the monthly amount was further reduced to $1,500. On various occasions, the applicant told Madam Y that he was collecting the money for “Ah Kung”. 12.On 13 occasions between February 2004 and June 2005, Madam Y paid into the applicant’s Bank of China account, a monthly “Tor Tei” fee of $1,000 to $1,500. The discrepancies were accounted for by the fact that Madam Y and Mr X had newspapers delivered to the applicant’s home, and that he sometimes received part-payment in cash. 13.Madam Y said that initially she had tried delaying tactics when the applicant approached her for payments by claiming not to have sufficient cash, or by paying him in coins or small notes. The applicant then asked for cheque payments and at the insistence of Madam Y, the cheque payments to the applicant continued in order to prove to Pui that she had paid the “Tor Tei” fees, although the understanding was that the applicant could insist on cash payments. 14.Madam Y and Mr X also said that when Pui was released from prison, he came to the restaurant and informed Madam Y that he would personally collect the “Tor Tei” fees. However, the applicant soon resumed collecting the payments after telling Mr X that “Ah Kung” had requested the payments be made to him and not to Pui as Pui had not accounted for the payments to “Ah Kung”. 15.Madam Y and Mr X did not give consistent evidence as to the period in which Pui collected the payments and when the applicant resumed collecting the payments. 16.However Mr X was able to say that a person called Kar Hung accompanied the applicant on the occasion when he demanded payments to be made to him. 17.According to Madam Y and Mr X, they resumed the payments of “Tor Tei” fees to the applicant by cash after a dispute arose when the applicant made further demands despite the cheque payments. The Defence Case 18.The applicant denied the prosecution allegation against him. He said the cheque payments from Madam Y were fees for the delivery of lunch boxes to the Cyberport construction site. The applicant said there were disputes and delays in the payments leading eventually to the payment in March 2006 of $2,800 as the final settlement of overdue charges from Madam Y. 19.The applicant denied visiting the restaurant in the company of Chi Keung or Lau Chi-hung, whose nickname was Kar Hung, to demand money from Madam Y or Mr X. 20.The applicant mentioned an occasion at the end of 2006 when he witnessed an argument between Madam Y and Mr X on the one side and Wong Chi-leung on the other. The applicant said he sided with Wong Chi-leung and scolded Madam Y and Mr X. The suggestion was that such incident led to their grievances against the applicant, and hence they lied against him. 21.The applicant called a number of defence witnesses, including DW2 Madam Wan Shek-lan, one of the proprietors of a nearby restaurant, who claimed to have witnessed the applicant taking delivery of lunch boxes from the restaurant; DW3 Chan Siu-chun, Janet who said that her company, Image Marketing Ltd, had used the applicant’s delivery services for which payments by cheque were made; DW4 Lau Chi-hung who denied accompanying the applicant to the restaurant or taking part in any blackmail; and DW5 Wong Chi-leung who claimed to have run a recycling shop near the restaurant. 22.Wong Chi-leung said he was forced to close his shop because the proprietors of the restaurant had poached his business. Wong Chi-leung said that the applicant had visited his shop on the day it opened, but denied ever arguing with Madam Y or Mr X. He said he had not even spoken to them, but admitted to have scolded their staff on two occasions for minor disputes. The Judge’s Findings 23.The judge accepted the evidence of Madam Y and Mr X, having correctly indicated that the case hinged upon their credibility, and concluded that their payments to the applicant were protection money. 24.The judge noted that Madam Y had denied, in a statement to the police on 6 September 2006, that protection money had been demanded from her, but accepted her explanation that she was worried about her cyber café business when men attempted to remove computers from her cyber café and took her to the basement of a shopping centre. 25.The judge accepted that it was unusual for triad members to have accepted protection money by cheques, but nevertheless accepted Madam Y’s evidence on how she persuaded the applicant to do so. 26.The judge noted the discrepancies in the evidence of Madam Y and Mr X as to the period when Pui collected the protection money before the applicant resumed the collection. The judge said the discrepancies were likely to be the result of differing recollection of events, which did not undermine the credibility of Madam Y and Mr X on the nature of the payments to the applicant and the circumstances in which they were made. 27.The judge rejected the suggestion that the applicant was in any way involved in the lunchbox business in Cyberport. 28.The judge concluded that the applicant, when giving evidence, was recounting a story that he had constructed to explain the cheque payments. 29.The judge rejected the suggestion that the payments had anything to do with his alleged transportation business. 30.The judge took the view that when the applicant said he sided with Wong Chi-leung in his argument with Madam Y and Mr X, he was just inventing a motive for them to lie against him. The judge pointed out that Wong Chi-leung did not support the applicant when he said he did not even speak to Madam Y or Mr X. 31.The judge did not find Madam Wan, Lau Chi-hung or Wong Chi-leung impressive witnesses, pointing out that each of them held grudges against Madam Y and Mr X. 32.Apparently Madam Wan’s husband, Lau Chi-hung and Wong Chi-leung had all been arrested and detained because of what Madam Y and Mr X had alleged against them. Lau Chi-hung was a close friend of the applicant and Wong Chi-leung had been a long-term resident in Wah Fu. 33.The judge further pointed out that Wong Chi-leung, on his own evidence, admitted that his recycling business closed down partly because of Madam Y and Mr X, and in any event he was vulnerable to triad pressure. 34.The judge rejected the evidence of the applicant and those of his witnesses. Despite the evidence of Janet Chan Siu-chun, which was accepted, the judge rejected the defence’s case that the applicant provided any delivery services to Madam Y and Mr X to justify their payments to the applicant. 35.The judge concluded that the applicant did demand “Tor Tei” fees from Madam Y and Mr X, and uttered the menace that if they did not succumb to his demand, cockroaches and mice might be placed in the restaurant. 36.The judge found the 4th charge of blackmail proved beyond a reasonable doubt. 37.Although the judge also found that the applicant had, on a number of occasions, made references to “Wo Hop To” and his connection to it, the judge, having examined the evidence of Madam Y and Mr X carefully, was unable to be sure that those references were made on the same occasion when he made the unwarranted demand for money from Madam Y and Mr X as suggested in the 3rd charge. 38.The judge therefore gave the applicant the benefit of the doubt and acquitted him of the 3rd charge. Grounds of Appeal 39.Mr. Peter Chow, on behalf of the applicant, advanced a number of grounds. Principally, Mr Chow submitted that the evidence of Madam Y and Mr X gave rise to a doubt about the applicant’s guilt. 40.Mr Chow emphasized that the cheque payments to the applicant were of different amounts and not regular, and therefore inconsistent with the suggestion that those payments were monthly “Tor Tei” fees. 41.Mr Chow submitted that the applicant would not have left documentary evidence when collecting “Tor Tei” fees. 42.Mr Chow further emphasized Madam Y’s failure to mention the allegations against the applicant in her statements to the police officers and the inconsistencies between Mr X’s evidence and his statements to the police. Mr Chow said that the judge had not dealt with such discrepancies properly or at all. 43.Mr Chow submitted that there were clearly discrepancies between the evidence of Madam Y and Mr X as to the period when Pui collected the “Tor Tei” fees before the applicant resumed the collection, yet the judge had not properly resolved the discrepancies before concluding that both Madam Y and Mr X were truthful and reliable witnesses. 44.Mr Chow complained that the judge had not properly evaluated the evidence and had failed to explain why he rejected the evidence of the applicant and those of his witnesses. 45.Mr Chow further submitted that the recollection of events by Madam Y and Mr X could have been affected by the long lapse of time and there was, therefore, a lurking doubt about the applicant’s guilt. Discussion 46.Although the evidence of Madam Y and Mr X covered a period of over 10 years, their evidence concerning the charges was simple, straightforward and related principally to the event that occurred in October 2003. 47.The issue that the judge had to resolve was simply whether they were telling the truth when they said the applicant had threatened them that unless they succumbed to his demand for the “TorTei” fees, their restaurant business would be disrupted. 48.Madam Y and Mr X were by no means perfect witnesses. There were discrepancies in their evidence. They admitted not to have told the whole truth to the police in their statements, and they had explained why. 49.The judge was fully aware of those matters and had dealt with them. 50.A judge, in deciding a criminal case, is obliged to give reasons for his verdict. Those reasons must be adequate in the circumstances of the case. 51.O’Connor J explained in R v Lam King Ming (unreport), CACC 601/1979 the following, which is applicable to a magistrate as well as to a District Court judge:
52.The judge was fully aware of the facts that Madam Y and Mr X did not, in their initial statements, tell the police the whole picture. The judge accepted their explanations. The judge was also aware of the discrepancies in their evidence as to the numbers of the payment and the periods in which the applicant or Pui collected the “Tor Tei” fees. 53.The judge said he was unable to resolve some of the discrepancies, which were discrepancies only on collateral matters we may add, but concluded that such discrepancies did not undermine their credibility on their evidence relating to the charges. 54.The judge was aware of the “unusual circumstances” that the “Tor Tei” fees were paid by cheques, and he accepted Madam Y’s evidence on how she persuaded the applicant to accept such payments. 55.The judge was also aware of the varying amounts in the payments to the applicant, and concluded that it was unrealistic to expect Madam Y to be sure precisely how certain amounts were arrived at and exactly how the deductions were calculated. 56.The judge, after a careful evaluation, rejected the evidence of the applicant and some of his witnesses, and had explained why he did so. 57.The judge was entitled to reach those conclusions. 58.A trial judge, who has the benefit of hearing and seeing the witnesses in court, is in the best position to resolve the issue of credibility. An appellate court would not, save in the most exceptional circumstances, interfere with findings, which depended on the credibility of a witness. (See R v Godber [1975] HKLR 326. 59.It must be remembered that the only real issue was whether the applicant had threatened Madam Y and Mr X to pay him the “Tor Tei” fees. There was no conceivable reason for either of them to lie against the applicant. The suggestion that Madam Y and Mr X lied and so brought this prosecution against the applicant because he had terminated his services and had sided with their business competitor was artificial and unconvincing. 60.The nature of their allegations was such that, despite the long lapse of time, it was not possible for Madam Y and Mr X to be mistaken about them. Their memories would certainly have been assisted by the documents relating to the payments to the applicant. 61.We had considered the evidence carefully. In the end, the true issue was whether the judge could believe Madam Y and Mr X. We could not find any good reason to say that the judge erred in believing them. 62.We were firmly of the view that on the facts as found by the judge, the decision to convict the applicant of the 4th charge was a correct one. There was no lurking doubt, and the conviction against the applicant was not unsafe or unsatisfactory. 63.The application for leave to appeal against conviction was therefore dismissed.
Mr John Reading, SC (DDPP) and Mr Alvin Chui, PP of the Department of Justice for the Respondent. Mr Peter Chow instructed by Messrs A M Mui and Kwan assigned by the Director of Legal Aid for the Applicant. |