HKSAR v. Tam Yun Chuen

CACC 118/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 118 OF 2008

(ON APPEAL FROM DCCC NO. 1041 OF 2007)

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BETWEEN

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Before: Hon Cheung JA, Yeung JA and Saw J

Date of Hearing:  28 August 2009

Date of Judgment: 28 August 2009

Date of Reasons for Judgment: 7 September 2009

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.The applicant (Tam Yun-chuen) appeared before Judge S D’Almada Remedios in the District Court on a sole charge of blackmail. It was alleged that the applicant, together with four other men, approached an employee (Mr X) of a massage establishment (“the establishment”) and demanded a monthly payment of a few thousand dollars by claiming to be members of the 14K triad society.

2.The applicant pleaded not guilty to the charge, but was convicted and sentenced to 4 years’ imprisonment. The applicant sought leave to appeal against conviction and sentence. We dismissed his application on 28 August 2009 and these are the reasons.

The Prosecution Evidence

3.Mr X, employed by the establishment as a foot masseur, said his boss’s name was Sally and it was a Thai lady Mai Tse who gave him his salary. It was admitted that the registered owner of the establishment was Prangsukhon Wong.

4.On 19 March 2007 when Mr X was sitting in the reception area of the establishment, a teenager arrived and asked if he wanted to carry on business. Mr X said yes, but there was no vacancy. The applicant and three men then rushed in. When Mr X again said it was full and could not accommodate so many customers, the applicant again asked if he wanted to do business.

5.When Mr X said yes, but they would have to wait, the applicant and his companions commented that Mr X was having good business. The applicant then spoke to Mr X in a fierce manner, using foul languages and saying that he was No 14 Wu So Chuen and that he was responsible for the whole Tokwawan area. Mr X said he was further told that he should know what to so. Mr X believed that the applicant and his companions were collecting “tor dei”.

6.The applicant then took out a piece of paper with a name and numbers written on it. One of the applicant’s companions took the piece of paper and wrote an English name on it. Mr X was told to deposit several thousand dollars every month as he had such good business. Mr X said that the applicant and his companions wanted to approach to hit him.

7.Mr X then told the applicant and his companions to wait outside, as he wanted to call his boss to get her instruction. Mr X then called the police and at the same time made a copy of the piece of paper given to him by the applicant, using the fax machine.

8.When Mr X tried to delay the matter by saying that he could not make any decision, he was accused of being “very cocky” and was further told that if he could not settle the matter, he would have to be held responsible.

9.The applicant and his companions only left upon being warned of approaching police officers when a mobile phone rang and one of the men should loudly, “blowing whistle”.

10.Mr X was able to identify the applicant at an identification parade in August 2008.

11.It was admitted that the copy of the piece of paper contained the applicant’s name and his bank account number with the Bank of China.

The Defence Case

12.The applicant admitted that the piece of paper produced by Mr X contained his name and bank account particulars. He said he had lent $120,000 to a lady called Prangsukhon Wong, also known to him as Ann. The applicant produced an IOU with Prangsukhon Wong as the debtor and there were the purported signatures of three witnesses. However, the name Ann did not appear. The applicant said it was Ann who signed the IOU dated 27 December 2000, but she had not repaid the money.

13.The applicant further said in 2004/2005, he and his wife had by chance stumbled on Ann in the street in Tokwawan and his wife spoke to Ann in Thai. Subsequently, following his wife’s instruction, he wrote down his name and his bank account number on a piece of paper to hand to Ann, presumably to enable Ann to repay the loan. The applicant said he did not write any English words. However, he did not receive any payment from Ann.

14.In January/February 2007, the applicant’s wife told him that Ann had opened a massage establishment in Tokwawan and that he should go there to look for her.

15.On 19 March 2007, the applicant decided to visit the establishment with his several friends to see if they could find Ann. Upon arrival, they saw Mr X and the applicant told him that he was looking for Ann. They had a talk outside the shop.

16.The applicant said that after he told Mr X of the loan to Ann, Mr X told him not to talk any more and that he would take it up. Mr X then told them to wait and returned to the shop. When the applicant asked Mr X when he came out of the shop if Ann was there or not, Mr X simply told him to wait and not to make haste. The applicant said after waiting for 10 odd minutes without seeing Ann, he and his friends just left.

17.The applicant denied having claimed to be “No 14 Wu So Chuen”. He said he and his friends did not run away and no one shouted “blowing whistle”.

The Judge’s Findings

18.The judge had extensively dealt with the evidence of Mr X, with particular reference to the inconsistencies emphasized by the defence. The judge accepted that there were inconsistencies between Mr X’s statements to the police and his evidence on his position in the establishment. There was also confusion as to where he was given the piece of paper with the applicant’s name and bank account number, and where its copy was given to the police officer.

19.The judge accepted Mr X’s explanation and concluded that he was an honest and reliable witness and that his accusation against the applicant could be safely relied upon.

20.The judge pointed out that Mr X must have been stunned at what happened when the applicant and his companions approached him or else he would not have made a report to the police.

21.The judge rejected the evidence of the applicant, commenting that he was unable to communicate with Ann, yet he lent her a large sum of money. The judge said it was wholly implausible for the applicant not to enlist the help of his wife when trying to contact Ann when Ann was his wife’s good friend.

22.The judge opined that on the applicant’s account, Ann had defaulted in repaying the loan and it took him many years to locate her, it was wholly unreasonable that he would just wait for 10 odd minutes on 19 March 2007.

23.The judge rejected the applicant’s suggestion that Mr X fabricated an account to wrong the applicant just because the applicant asked to see Ann. The judge pointed out that Mr X reported to the police when the applicant was still in the shop and that if he had wanted to frame him, in collusion with Ann, they could have done so earlier and would not have waited until the applicant approached the shop.

24.The judge took the view that the applicant was “brave’ enough to hand Mr X a piece of paper with his name and bank account because he was confident that Mr X would be intimidated by his triad threat and would succumbed to his demand.

25.The judge found the charge against the applicant proved.

Grounds of Appeal

26.Mr Vincent Lung, on behalf of the applicant, again emphasized the discrepancies between Mr X’s evidence and the contents of his statements to the police. Mr Lung suggested that there was no explanation as to why Mr X was unable to produce the original piece of paper with the applicant’s particulars. Mr Lung suggested that the absence of the original piece of paper supported the defence’s case that it was given to Ann a long time ago and therefore could not be located.

27.Mr Lung further submitted that Mr X was not an honest or reliable witness and yet the judge had not properly or sufficiently dealt with the discrepancies in his evidence and the general weakness of the prosecution case.

28.Mr Lung suggested that if the judge had properly analyzed Mr X’s evidence, she might not find the defence case so unbelievable.

Discussion

29.There was no dispute that if Mr X’s accusation against the applicant was correct, the applicant was guilty of the charge of blackmail. The only issue was whether Mr X was a truthful and reliable witness and whether the applicant’s evidence had cast any doubt on the prosecution case against him.

30.The judge had extensively dealt with the applicant’s evidence and explained why she rejected such evidence. Mr Lung was not taking any issue with the judge’s findings in his skeleton argument although he did say, in his oral submissions, that the judge was wrong to have rejected the defence’s case.

31.Mr Lung’s principle complaint was against Mr X’s evidence, saying that his evidence was not convincing and that he was not a truthful or reliable witness. Mr Lung repeated the suggested discrepancies between Mr X’s evidence and the contents of his statements to the police.

32.The applicant’s defence was premised on the suggestion that the owner of the massage establishment, Prangsukhon Wong, known to him as Ann, owed him $120,000 and somehow, Mr X lied to wrong him because of it.

33.The applicant’s allegation was a bare allegation and the IOU was a self-serving document. As Mr Robert Lee SC, for the respondent, quite rightly pointed out, it was easy for the applicant to obtain the registered details of any business from the Business Registration Office.

34.Despite the suggestion that the applicant’s wife was deeply involved in the dealing and that three witnesses witnessed the execution of the IOU, none of them gave evidence to support the applicant’s case. The judge was right not to attach any weight to the IOU.

35.The applicant said he was owed this large sum of money, yet he took no legal action to try to recover the money. He did not even know where to look for the debtor. When, according to him, he finally became aware of her whereabout, he just casually took a few friends to look for her and, having waited for 10 odd minutes without seeing Ann, they just left.

36.The defence case was totally unbelievable and the judge was right to reject it.

37.There were no doubt minor discrepancies between Mr X’s evidence and the contents of his statements to the police. The judge had dealt with most of the discrepancies.

38.The fact that Mr X was able to produce a copy of the piece of paper with the applicant’s name and bank account number was highly supportive of the prosecution case. We fail to see the significance at all of where the piece of paper and/or its copy was given. The judge was certainly entitled to conclude that the confusion relating to how Mr X handled the documents was insignificant.

39.Mr X admitted that he was unable to locate the piece of paper that the applicant gave him and he had explained what according to him must have happened.

40.Mr Lung complained about the judge’s failure to deal with certain discrepancies in the prosecution evidence.

41.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.

42.O’Connor J, in R v Lam King Ming (unreported, CACC 601/1979), explained what a judge should do in giving reasons:

“The reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflict should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment and it must be related to the circumstances of the particular case. The magistrate should state in his reasons to such an extent as will inform the parties as to how and why the particularly verdict was arrived at and furthermore will enable an appellate court to perform its duty.”

43.We certainly do not dispute the observation by this court in HKSAR v Poon Chun Kit [2007] 4 HKLRD 12 when it was held:

“The duty to give reasons was discharged by giving adequate reasons which illustrated the salient points in the case, demonstrated that the evidence had been evaluated and significant inconsistencies and conflicts resolved. Reasons stated should inform the parties as to how and why the particular verdict was arrived at and furthermore enable an appellate court to perform its duty.”

44.Having considered the facts of the case, we found no conceivable reason for Mr X to lie against the applicant. Mr X would not have been able to do so in the circumstances of the case as he could not have predicted the visit by the applicant and his “friends”. We could not ignore the fact that Mr X reported the matter to the police immediately.

45.The case turned on the assessment of Mr X’s credibility. The assessment of a witness’s credibility is primarily the job of the trial judge, who, with the benefit of hearing and seeing the witness in court, is in the best position to resolve the issue. An appellate court would not, save in the most exceptional circumstances, interfere with a finding that depends on the credibility of a witness. (See R v R E Low [1961] HKLR 12, R v Godber [1975] HKLR 340, R v Chan King-man & Others [1980] HKLR 105 and R v Sheikh Abdul Rahman and Others (unreported CACC 756/1981).

46.We are satisfied that the judge had properly dealt with the case. The judge was entitled to accept the evidence of Mr X and on such evidence the applicant was guilty as charged.

47.We did not find the conviction in anyway unsafe or unsatisfactory and we therefore dismissed the application for leave to appeal against conviction.

The Sentence

48.Mr Lung suggested that the four years’ sentence was manifestly excessive because there was no indication that the case was triad related. In any event, he suggested that the applicant should not be sentenced on the basis that the offence was triad related because he was not charged with any triad offence and that he had not been given the chance to refute the triad allegation.

49.We found Mr Lung’s submission astonishing. It had always been the prosecution case against he applicant that he, together with four others, tried to blackmail Mr X by saying that he was No 14 Wu So Chuen and was responsible for the whole Tokwawan area in order to obtain monthly payments from Mr X. The tenor of the prosecution case was that it was a typical case of triad members trying to obtain “tor dei” money from the operator of the establishment.

50.The applicant denied the allegation. He said, in his evidence, that no one mentioned “blowing whistle”. The suggestion that the applicant had not had the chance to refute the triad allegation was unconvincing.

51.Whether the applicant was charged with other triad related offence was, in our view, completely irrelevant. The applicant, together with four others, made an unwarranted demand for monthly payments from the establishment. Foul languages were used and Mr X was threatened with the use of violence. Terms such as No 14, and “blowing whistle” were mentioned and they gave the impression that they were collecting “dor tei”

52.Mr Lung’s submission that there was no basis to suggest that the case was triad-related because no triad expert was called to explain the meaning of those terms was unrealistic. With respect, we do not need any expert to explain those terms. Mr Lung’s suggestion that No 14 could mean that the applicant was the 14^th child in his family and was nicknamed as such was farcical.

53.In our view, the manner in which the applicant and his companions made the unwarranted demand from Mr X, the words they uttered and the circumstances in which they made the demand clearly supported the judge’s conclusion that the offence was triad related and that the applicant should be sentenced on that basis.

54.Triad members bullying law abiding citizens in order to extort money from them is an extremely serious offence and must be deterred. We wish to repeat what this Court said in HKSAR v Wong Fu Wa [1991] HKC 363 at p 365 D-F:

“What is however very clear is that this type of offence is still quite prevalent. There can also be no doubt that a serious view has to be taken of it. The sort of threats which are made either implicitly or explicitly cause fear and disquiet to victims. The courts must demonstrate to offenders that this type of activity will not be tolerated.”

55.In Wong Fu Wa (supra), we expressly approved a starting of four years’ imprisonment and there was no reason not to adopt it.

56.The four-year sentence imposed by the judge was entirely proper. The application for leave to appeal against sentence was therefore also dismissed.

Mr Robert S K Lee, SC, SADPP of the Department of Justice for the Respondent.

Mr Vincent Lung instructed by Messrs Wong & Co for the Applicant.