HKSAR v. Tang Kwok Hing

CACC 161/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 161 OF 2010

(ON APPEAL FROM DCCC 1057 OF 2009)

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BETWEEN

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Before: Hon Yeung JA, Lunn J and Wright J

Date of Hearing: 23 November 2010

Date of Judgment: 23 November 2010

Date of Handing Down Reasons for Judgment: 1 December 2010

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REASONS FOR JUDGMENT

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

Introduction

1.In April 2008, Forever Success Investment Ltd (“Forever Success”), a company with three partners (Mr Hui Kai-lung, Mr Lam Kin Wan and Mr Yu Kam Kwong), purchased a piece of land at Hung Uk Tsuen in Tin Shui Wai (“the site”) for the purpose of redevelopment, which commenced in or around June 2008.

2.The prosecution alleged that the applicant – Tang Kwok-hing – on three occasions in June, September and October 2008, arrived at the site with a group of men and demanded “Tor Dei” money from partners of Forever Success. The prosecution further alleged that the applicant had claimed to be a member of the “Shing Wo” triad society to Mr Lam, and on another occasion, assaulted Mr Hui in aid of his demand for “Tor Dei” money.

3.The applicant was charged with two counts of blackmail, one count of claiming to be a member of a triad society and one count of common assault. He pleaded not guilty to the charges and appeared before Judge Geiser in the District Court for trial.

4.On 19 April 2010, the applicant was convicted of all four charges and sentenced to a total term of 2 years and 9 months’ imprisonment. Represented by Mr Eric YN Lau, the applicant sought leave to appeal against conviction only.

5.Having heard submissions, we dismissed the application and indicated that we would hand down the reasons. This we now do.

Prosecution Evidence

6.Mr Hui, Mr Lam, and one of their workers, Mr Lai Lin-on, gave evidence against the applicant.

The 1^st Charge of Blackmail and The 4^th Charge of Common Assault

7.According to Mr Hui, he was at the site on a day in mid-June 2008 when the applicant together with a few men arrived. The applicant asked him who was the person-in-charge after telling Mr Hui that he could not work there.

8.On being told that the boss was not at the site, the applicant said that he was a “Tor Dei” and that his surname was Tang, the son of Tang Kwong-ming, a village representative. The applicant further told Mr Hui that if he wanted to start work there, he had to pay $100,000 plus a fee of $200,000 for damages previously done. The applicant told Mr Hui to relate the message to his boss and he wrote down a telephone number so that Mr Hui could get back to him. Mr Hui said work at the site stopped, but resumed around September 2008. Mr Hui said the matter was not reported to the police because there was no harm done.

9.At about 4 p.m. on 8 October 2008, Mr Hui was informed by a colleague that a number of people went to the site to stop the work there. He then told his worker to go back to the company to wait for him. Mr Hui later went to the site with Mr Lai in separate vehicles. Upon arrival, Mr Hui drove  in : Mr Lai waited outside the site. Mr Hui then saw the applicant with 10 odd men, some holding poles. When Mr Hui lowered the car window with a view to make enquiry with the men, the applicant suddenly approached Mr Hui and punched his right ear. Mr Hui said his vehicle was also being pounded on, so he drove away.

10.Mr Hui related the matter to Mr Lam and a report was made to the police. Mr Hui was sent to the Tuen Mun Hospital for treatment and he was found to suffer tenderness at right mid-face; right external ear abrasion; and facial contusion which were compatible with a blunt trauma.

11.Mr Hui said he saw the applicant on 19 August 2009 in Tuen Mun Magistracy and he also identified him in an identification parade on 8 September 2009.

12.Mr Hui denied the suggestion that the applicant said to him that his company should not drive its vehicles along a piece of land adjacent to his father’s company as it belonged to his father. Mr Hui also denied the suggestion that the incident occurred on 8 October 2008 was just an altercation with the applicant because he drove his vehicle along the piece of land. Mr Hui further denied that he had knocked over the applicant.

13.Mr Lam also said on 8 October 2008 when he went to the site after receiving a call, he saw a group of people, some carrying poles, chasing Mr Hui, and kicking and pounding his van. Mr Lam said the applicant was one of the men.

The 2nd Charge of Blackmail and the 3rd Charge of Claiming to be a Member of a Triad Society

14.On a day in mid-September 2008 when Mr Lam was visiting the site, the applicant approached him with about 10 men. After Mr Lam said he was the person in charge, the applicant told Mr Lam that his name was Eddie, the son of Tang Kwong-ming and that he was a “Tor Dei” of Hung Uk Tsuen and a member of “Shing Wo”. The applicant further claimed to be in charge of Hung Uk Tsuen and that if they wanted to start work on the site, they had to employ his “brothers”, and to pay him a lump sum of $200,000 plus a monthly protection fee of $8,000 to $10,000.

15.Before leaving, the applicant threatened Mr Lam by saying that if any work was carried out there they would go after the people who did not co-operate. The applicant also gave Mr Lam his mobile telephone number (9625 6627) so that he could be contacted by Mr Lam after discussions with his partners.

16.Mr Lam said he called the number and told Eddie that his requests could not be met whereupon, Eddie replied in a ferocious manner, “Before this is settled you are not to work there, or we will go after you.” Mr Lam said as a result, work on the site was suspended until early October 2008.

17.Mr Lam denied the suggestion that the applicant had never given him a telephone number and that the applicant had never received a call from him. Mr Lam said there was never any dispute between the applicant’s company and Forever Success because of damages done to the drainage pipes adjacent to the property belonging to the applicant’s father. Mr Lam also denied the suggestion that his workers had damaged the marble belonging to the company of applicant’s father and was adamant that the applicant had, in September 2008, threatened him by claiming to be a triad member.

18.The mobile telephone number given to Mr Lam in mid-September 2008 was registered in the applicant’s name. Both Mr Hui and Mr Lam were able to identify the applicant in formal identification parades.

19.Mr Lam said he had to apply for water and electricity supply to the site and in the process encountered much difficulty when China Light and Power indicated that in order to provide electricity supply to the site, they had to route the cable past government land. However, there were miscellaneous items placed on the government land and the removal of those items resulted in Mr Lam being charged with criminally damaging the items as well as hitting and injuring people. Mr Lam was, however, acquitted in August 2009.

20.Mr Lai was present on the three occasions in question, in June, September and October 2008. He confirmed that in June when he was with Mr Hui, some eight to nine people came to the site and one of them spoke to Mr Hui. He also witnessed the occasion in September 2008 when some 10-odd people came to the site and talked to Mr Lam and Mr Yu. He said he was unable to hear what they were talking about on both occasions as he was working and was not paying attention.

21.Mr Lai said on 8 October 2008, he was unable to enter the site as there was a 16-tonne goods vehicle blocking the entrance. When he approached a man asking him to move the vehicle, the man refused, pointing at his nose, and saying his name was Tang, and that the road belonged to him. Mr Lai then called Mr Hui. Later he followed Mr Hui to go to the site. However, he did not enter the site, but waited in his vehicle whilst Mr Hui drove in as the entrance to the site was narrow. He said the site became very noisy and he saw 11 to 12 people surrounding and pulling Mr Hui’s vehicle, kicking and pounding it as well as extending their arms into the vehicle. He also said he saw some injuries on the right side of Mr Hui’s face when he got back to the office.

22.Mr Lai, under cross-examination, said he was unable to see anyone carrying any pipes or wooden poles.  Mr Lai was questioned about a statement he gave on 11 October 2008. He agreed that when he talked about the June and September incidents, he said the man who spoke to him did not mention that his surname was Tang or that he was the son of Tang Kwong-ming. He also agreed that no one said to him threatening words or mentioned “Tor Dei” or triad societies. He was able to say that in the October incident, a 32 year-old man did claim to be surnamed Tang.

23.Mr Lai was unable to identify the applicant.

The Defence Case

24.The applicant did not give or call any evidence. The suggestion was that both Mr Hui and Mr Lam lied against him because of some disputes over the use of the land adjacent to the site. He relied on the fact that he had a clear record.

The Judge’s Findings

25.The judge found both Mr Hui and Mr Lam truthful and reliable. He rejected the defence suggestion that they had colluded against the applicant to seek revenge for the circumstances leading to Mr Lam being charged with criminal offences in 2009. The judge took the view that there might well have been some dispute between the company of the applicant’s father and Forever Success concerning the land adjacent to the site, but he rejected the suggestion that Mr Hui and Mr Lam had lied against the applicant because of that.

26.The judge pointed out that Mr Lai only said that no threatening words and triad words were said to him. In any event, as Mr Lai said he was not paying attention to the conversation between the applicant and Mr Hui in the June incident and Mr Lam in the September incident, the judge did not place much reliance on his evidence.

27.The judge further pointed out that, contrary to the evidence of Mr Hui and Mr Lam, Mr Lai said he did not see any one carrying any weapons at the October incident. The judge said he could not resolve the discrepancy, but would prefer the evidence of Mr Hui and Mr Lam to that of Mr Lai.

28.On the evidence of Mr Hui and Mr Lam that he accepted, the judge convicted the applicant of all four charges.

Grounds of Appeal

29.Mr Eric YN Lau suggested that as Mr Lai was present on all three occasions and was a more independent witness, the judge should have attached more weight to his evidence than that of Mr Hui and Mr Lam.

30.Mr Lau emphasized that Mr Hui appeared to have described the September incident between Mr Lam and the applicant as a “peaceful chat” although according to Mr Lam, it was a talk about sums of money.

31.Mr Lau argued that when Mr Hui and Mr Lam reported the matter to the police, there was an on-going dispute between them and the applicant leading to criminal charges against Mr Lam. It was therefore possible that they had framed up the applicant in revenge.

32.Mr Lau suggested that Mr Lai was in a position to hear the conversation between the applicant and Mr Hui and Mr Lam on the three occasions in question, particularly when according to Mr Hui, the applicant uttered the offending words in an “aggressive tone” which was rather “loud” on the June occasion, yet Mr Lai said that he did not hear any reference to “Tor Dei” or triad societies or being Mr Tang Kwong-ming’s son.

33.Mr Lau mentioned, in particularly, Mr Lai’s evidence that there was no one carrying any weapon, contrary to the evidence of Mr Hui and Mr Lam. Mr Lau empahsized that the judge was unable to resolve the discrepancy.

34.Mr Lau submitted that the judge had not properly analyzed the evidence, but simply preferred the evidence of Mr Hui and Mr Lam, to that of Mr Lai.

35.Mr Lau further submitted that the evidence of Mr Hui and Mr Lam was suspicious and any conviction based on their evidence would be unsafe or unsatisfactory.

Discussion

36.The case and the issues involved were simple and straight-forward. It basically rested on the credibility and reliability of Mr Hui and Mr Lam.

37.Mr Lau repeatedly emphasized that Mr Lai did not hear any reference to “Tor Dei” or being the son of Tang Kwong-ming in any of the three occasions.

38.Although Mr Lai was present at the site on all three occasions, his exact position was never established.  In any event, Mr Lai said he was working and was not paying attention and therefore did not hear the conversations in question. Contrary to Mr Lau’s suggestion, Mr Lai did not say that no one mentioned being Mr Tang Kwong-ming’s son or made reference to “Tor Dei”. Mr Lai was only saying that no one mentioned those matters to him.

39.Mr Lai also said that he did not initially enter the site in the October incident and was waiting in a vehicle outside, yet he heard the site become very noisy and saw people surrounding and pulling Mr Hui’s vehicle, kicking and pounding it as well as extending their arms into the vehicle. When he actually entered the site, he saw people surrounding Mr Hui’s car and by then the assault had already finished. Mr Lai’s evidence was consistent with that of Mr Hui and Mr Lam.

40.We do not want to speculate as to why Mr Lai was unable to see anyone carrying any weapon on the October occasion. We wish to point out that there was no attempt to establish the sizes of the weapons held by the applicant’s group or how far Mr Lai was away when he witnessed the October incident. Whether someone was carrying any weapons was, in any event, not crucial to any of the charges. The judge had identified the issues and clearly had them in mind in his deliberation.

41.We can find no conceivable reason for Mr Hui and Mr Lam to lie against the applicant. We cannot ignore the fact that their evidence was supported by the reference to the applicant’s telephone number, his relationship with Mr Tang Kwong-ming and more importantly by Mr Hui’s injuries suffered on the October occasion. Not withstanding the direct evidence from Mr Lam that he had called the applicant’s telephone number and was threatened by the applicant, no evidence from the applicant’s telephone records was adduced to refute Mr Lam’s evidence.

42.The credibility of witnesses is a matter for the judge and the Court of Appeal should “act with the greatest caution before interfering with the District Judge’s finding if, having regard to the whole of the evidence, such findings appear reasonable”. (Per Blair-Kerr J in R v R E Low [1961] HKLR 13 at p 82)

43.This is especially the case, “if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses.” (See the dictum of Viscount Simon in the House of Lords in Watt or Thomas v Thomas [1943] AC 484 at 486, cited with approval in the judgment of Sir Thomas Eichelbaum in the Court of Final Appeal in Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289 at p 294 F-G)

44.The judge had carefully and properly evaluated the evidence, including the matters relied on by Mr Lau. The judge was entitled, in our view, to accept the evidence of Mr Hui and Mr Lam, particularly when the applicant chose not to give or call any evidence to contradict, explain or undermine the prosecution evidence against him.

45.On the evidence that the judge accepted, the applicant was guilty as charged and we did not find the conviction against him in any way unsafe or unsatisfactory. The application for leave to appeal against conviction was therefore dismissed.

Mr Alex Lee, SADPP of the Department of Justice for the Respondent.

Mr Eric YN Lau instructed by Messrs Raymond Chan, Kenneth Yuen & Co for the Applicant.