HKSAR v. Wong Wing Yin

FAMC No. 22 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 22 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 210 OF 2011)

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Between

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DETERMINATION

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Mr Justice Ribeiro PJ :

1.The applicant was convicted[1] of conspiracy to blackmail her former boyfriend (PW4) and sentenced to two years’ imprisonment. 

2.The prosecution’s case was that she was party to a conspiracy between her then boyfriend (D3, a purported triad member) and an undercover police officer (PW1), as well as two other purported triad members.

3.The Judge found that the conspiracy was to demand payment by PW4 of $10,000 representing a debt allegedly owing to the applicant, under threat of publishing nude photos of him, taken when he was the applicant’s boyfriend. 

4.The photos and a sheet of paper containing the names, addresses and phone numbers of PW4 and his new girlfriend, a Miss Chung, were handed over by D3 to PW1 at the meeting (which the applicant did not attend).  Although the Judge rejected D3’s evidence,[2] he found that D3 must have obtained the photographs and information from the applicant.[3]  The Judge also found that the applicant had later telephoned PW4 and threatened to “dish out your photos to neighbours” if he did not pay back the money.  The applicant did not give evidence.

5.The Court of Appeal[4] dismissed the applicant’s appeal and leave to appeal is now sought on the substantial and grave injustice ground.

6.First, the applicant seeks to argue that the Judge and the Court of Appeal were wrong to find that her threats made on the telephone were serious rather than “merely jokes or bitter words’”.  The courts below were fully entitled to make that finding and this argument gives no basis for leave.

7.Secondly, complaint is made about the Judge’s admission of evidence given by D3 for use against the applicant.  In our view, the Court of Appeal correctly held that it was evidence of conduct in furtherance of the alleged conspiracy amply supported by independent evidence linking the applicant to that conspiracy, and therefore admissible under the co-conspirator's rule.[5]

8.The applicant knew PW4 and knew of Miss Chung, but D3 did not.  The threats were made in order to recover a debt said to be owing to the applicant.  The photos and the information handed over to the co-conspirators came from the applicant.  And the applicant uttered threats to PW4 consistent with the blackmailing plan discussed by D3 and the other conspirators.

9.The Judge did not expressly deal with the co-conspirator's rule and it is said that this deprived the applicant of a proper opportunity to consider whether to testify.  That complaint is unjustified.  The applicant knew from the prosecution’s opening and from the evidence given by PW1 and PW4 that the applicant was being implicated in respect of what was said at the meeting and independently of it.  She was perfectly able to decide whether to go into the box to deal with that evidence but chose not to do so.  No reasonable grounds have been made out for leave to appeal and the application must be dismissed.

Mr Charles J Chan, instructed by the Legal Aid Department, for the applicant

Mr Alex Lee SADPP, of the Department of Justice, for the respondent