HKSAR v. Pak Po Wah

CACC000792/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 792
(Criminal)

------------------

Coram: Hon. Mayo, Leong and Stuart-Moore, JJ.A. in Court

Date of hearing: 7 July 1998

Date of delivery of judgment: 15 July 1998

----------------------

J U D G M E N T

----------------------

Leong, J.A. (giving the judgment of the Court):

1. The applicant was convicted by District Judge Chua of four charges, 1st charge blackmail, 2nd charge criminal intimidation, 3rd charge - theft and 4th charge robbery. The first three charges were committed on the same day 17th December 1994 and the 4th charge on 5th January 1995. He was sentenced to 4 years' imprisonment on each charge concurrent. He now applies for leave to appeal against conviction and sentence.

2. The prosecution evidence is essentially this. PW1 Chan Wing-lam operated a business involving car sales and repairs and making of number plates. In the Lunar New Year in 1989, several men came to PW1's shop and demanded money. The demand was refused by PW1. Two of his cars were subsequently damaged. The applicant was a regular customer of PW1 and he settled this matter for PW1. Thereafter, the applicant was paid $2,000 per month as protection money. These payments lasted several years until 1994. In the mean time, the applicant and PW1 became friends and on several occasions, PW1 obtained loans from the applicant at high interest rates and these included a loan of $200,000. These loans were all repaid by PW1. On one occasion, the applicant invested $250,000 in PW1's business but this was later withdrawn by the applicant. In 1994, PW1 had a dispute with a Mr. Fung. Subsequently, PW1's shop was damaged and his car was burnt. The applicant then advised PW1 to go to Macau and lie low. PW1 did as advised. The applicant later went to Macau and told PW1 that retaliatory action had been taken out against Mr. Fung.

3. On 17th December 1994, the applicant and a man went to the shop of PW1 and demanded $30,000 for the expenses the applicant said that was incurred in taking retaliatory action against "the other party's field", meaning Mr. Fung. The applicant threatened PW1 if he did not pay up, he would not be allowed to carry on his business. In the course of that meeting, the applicant drove the employees and PW3, the brother of PW1 out of the shop and pulled down the roller shutter to show that he meant business. As a result, PW1 made out a cheque of $30,000 and gave it to the applicant. PW3 saw PW1 hand the cheque to the applicant. At that time PW1 was to go to the police station to give a statement and when the applicant learnt about it, he warned PW1 not to say anything foolish or mention the applicant's name to the police otherwise PW1 and his family would be doomed. The following day, the applicant came back and wanted PW1 to pay $30,000 in cash in exchange for tearing up the cheque given to the applicant the day before. PW1 wanted the matter to be settled and he paid the applicant cash $30,000 but he never got back the cheque.

4. On 5th January 1995, the applicant went with four men to PW1's shop. They removed two casting moulds from the shop and when PW3 tried to stop him, he pushed PW3 away. In the course of removing the moulds, the applicant said that it was to stop the operation of the shop.

5. The applicant on the other hand denied he was the protector. He said he and PW1 were friends and business partners. He had lent money to PW1 interest free and he denied the loan of $200,000 had been repaid. He denied he had threatened or demanded money from PW1 or taken $30,000 cash from PW1. He agreed he was in PW1's shop on 5th January 1995 but he said he went there with another man only to discuss matters relating to their partnership business.

6. The judge accepted the evidence of the prosecution witnesses and convicted the applicant.

7. There are a number of grounds of appeal. The first ground is the judge took into account matters which were irrelevant and upon which the applicant had no opportunity to cross-examine. This relates to the evidence of PW1. In his evidence in chief, PW1 mentioned that on 30th December 1994, following a telephone call from the applicant, he went to meet the applicant. Defence counsel objected to the admission of evidence of that meeting on the ground that the evidence was not relevant and could be more prejudicial than probative. Prosecution counsel considered the evidence would show the applicant was all along threatening PW1 and PW1 would get retribution if he did not do as the applicant told him. But somehow, prosecution counsel thought this evidence would be more prejudicial than probative and did not pursue the matter further. The judge was not asked to make any ruling on admissibility of the evidence. PW1 when cross-examined said that after the meeting with the applicant on 30th December 1994, the applicant kept on pressing him to give a reply and he had to close down his shop and move his home and finally he decided to report to the police and he did so for the first time on 12th January 1995. In re-examination, he explained in relation to his first report to the police that sometime after 5th December 1994 the applicant had on the telephone demanded him to pay $500,000 or stop running his business and had since been pressing him to make a choice. He tried to avoid giving the applicant a reply because he did not know what to do. That finally made him change his mind and report to the police.

8. In her Reasons for Verdict, after referring to this evidence, the judge said this:

"I am sure the robbery on 5th January 1995 occurred as PW3 has described. It was part of an ongoing series of intimidating behaviour to frighten PW1 into paying $500,000."

9. Thus, the judge had not only referred to this evidence but had in fact relied on it to form her view that there was an on going transaction to extort money from PW1.

10. The applicant's complaint is not so much that such evidence was not relevant and inadmissible but rather that such evidence being highly prejudicial to the applicant, the judge should not have relied on it when the applicant had not had the opportunity to test it in cross-examination.

11. This evidence about the threat and demand of $500,000 by the applicant was never raised by the prosecution. It came out in re-examination when PW1 was properly questioned on matters which arose out of cross examination. The evidence was relevant to the charges and not inadmissible and could be adduced in PW1's evidence in chief. The evidence could have supported another blackmail charge against the applicant. Be that as it may, where the prosecution had decided not to make use of it but inadvertently it was elicited for the first time as in the present case in re-examination, the judge should be wary of the lack of opportunity for the applicant to cross-examine on it. She should have either ignored it or given the applicant an opportunity to test it by cross examination. Failing that, and instead relying on it, the applicant was very much prejudiced in his defence.

12. The second ground of appeal is on the discrepancies between the evidence of PW3 and PW4 in relation to the incident on 5th January 1995. PW3 said four to five people came to the shop whereas PW4 said that there were two persons. The complaint is that the judge failed to resolve the discrepancies. PW3's evidence was that when he opened the shop door, the applicant and four men came into the shop and all six of them were in the office when PW4 went past them to go out of the shop. PW4's evidence was the applicant and another man opened the door of the workshop where he was then working and told him to leave. He was frightened and went through the office to go outside the shop. How he could have missed the people in the office was not explained. The applicant's evidence was that on 5th January 1995, he went to PW1's shop with one man only and if PW4 was truthful, his evidence supported the applicant's version of events. As the credibility of the witnesses and the applicant was a vital issue, these discrepancies were highly relevant and should have been resolved before concluding that both PW3 and 4 were truthful and reliable.

13. The third ground is that the judge failed properly to consider the applicant's case. It is submitted that the judge should have accepted the $200,000 was given to PW1 by the applicant for his 20% share in the business and not as a loan by the applicant to PW1. The applicant in his evidence said the sum was lent to the wife of PW1 and it was a loan to her to be used as capital for the business. We reject this submission. The judge was entitled to find this was a loan.

14. For the foregoing reasons, the findings against the applicant are not without serious flaws. It would not be necessary to consider the remaining grounds of appeal which are ancillary to the main grounds. The convictions are unsafe and unsatisfactory. The application for leave to appeal is granted and the appeal against conviction is allowed. The convictions are quashed and the sentences set aside.

Representation:

Mr. Simon Tam, S.G.C., for Respondent

Mr. C.S. Grossman, S.C. & Mr. Phil Chau, instructed by M/S Chong, Leung & Co.for Applicant