HKSAR v. Chan Wing Go

CACC 390/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 390 OF 2014

(ON APPEAL FROM DCCC 660 OF 2014)

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

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

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

J U D G M E N T

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

Introduction

1.The applicant appeared in the District Court charged with blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210.  The Particulars of Offence alleged that on a day unknown in mid-November 2013, near Hung Yuen Road, Hung Shui Kiu, Tin Shui Wai, the applicant made an unwarranted demand of $30,000 from X with menaces.  He was tried before Deputy District Judge Mitchell (“the judge”) and on 5 November 2014 he was convicted of this charge.  On the same day he was sentenced to a period of 3 years’ imprisonment.

2.He now applies for leave to appeal against his conviction.

The prosecution case

3.The prosecution case depended entirely upon the evidence on the victim, who was referred to as “Mr X”.  The judge noted in his Reasons for Verdict the concession made by the prosecutor as follows:

“Should the court not believe his testimony or his account is incredible or unreliable the case against the defendant must fail. There is no other independent evidence which goes to support the case for the prosecution.”

4.In his evidence in his examination-in-chief Mr X described how in the period February-March 2013 he started selling beverages to construction site workers outside a construction site near Hung Yuen Road, Hung Shui Kiu in the New Territories.

5.From sometime in May 2013 he began selling lunch boxes and tea time snacks from a black van at the same location.  He was assisted by his wife in this enterprise and each day they together made approximately $500 profit from the lunch boxes and $300 – 400 profit from the snacks.

6.Mr X said that in mid-November 2013 he was approached by the applicant who was alone and who was riding a bicycle whilst he, Mr X, was at the construction site.  The applicant was known by the name of Ah Go.  Mr X said that the applicant asked him who allowed him to sell at that location adding that this was his territory and “you have to pay protection fee in order to sell here otherwise you cannot sell here”. The applicant asked PW1 for $30,000 as “protection money” and this was to cover a period of one year.

7.When Mr X was asked what he understood was meant by “protection money”, he said

“I understood it means that if I paid him the money, he would not cause trouble at that place, and I could go on selling stuff there”.

8.Mr X was then asked what he thought would happen if he did not pay and he said:

“Definitely, some people would cause trouble to me and I would not be allowed to sell there. That means I could not earn a living there.”

9.Mr X described the applicant’s demeanour as being very fierce and as a result he said he was very scared and said that if he did not pay and continued to sell there then he believed the applicant would ask somebody to cause trouble to him and would probably damage his stuff.  

10.Mr X told the applicant that he had no money and so the applicant gave him one week to pay.  The applicant gave him his mobile phone number and told Mr X to call him when he had raised the money.  Mr X raised the money by borrowing and by having recourse to his wife’s savings. 

11.Mr X arranged to meet the applicant at the construction site where he handed over the money to him.  When receiving the $30,000 from Mr X the applicant told him not to tip off others otherwise “I would chop you to death and burn your house”.  Mr X said that as a result of this threat he was very scared.

12.Mr X said that prior to this, in the months of May to October 2013, he had not had any conversation with the applicant. 

13.Mr X said that when he started selling lunch boxes at the site he obtained the lunch boxes from a cooked food stall called Sun Kei operated by Fei Kan.  Subsequently he changed to another supplier.  And after he did so he had no other business dealings with Fei Kan.

14.Mr X also gave evidence of three occasions, the first of which was 6 August 2013, when his van was damaged by masked men who broke the glass windows and damaged parts of the bodywork.  This evidence was not relied upon by the judge to inculpate the applicant but it had continuing relevance in providing a time-line reference point.

15.Although Mr X initially said in cross-examination that the November meeting was the first time the applicant had approached and spoken to him he later said there was an occasion where he recalled he had met Fei Kan together with the applicant at the Tai Fat Restaurant in Hung Shui Kiu before November 2013.[1]  He said that the purpose of this meeting was because Fei Kan had said that he also wanted to sell lunch boxes at the site and Fei Kan had asked Mr X who was looking after the site and Mr X had told him that it was the applicant.  Mr X thus arranged the meeting and he said it took place before any of the attacks on his van, that is before 6 August 2013, and later said it was roughly March/April 2013.

16.Mr X said that the applicant would sometimes come around to the construction site on his bicycle to see if the business was good.  He also said that he had obtained the applicant’s phone number before the November blackmail demand.  When asked about the November payment he said he did not pay anything else after that and left the court with the impression that only one payment had taken place.  In respect of this payment he maintained that it took place at the construction site in the absence of his wife.  In fact, Mr X claimed that on the occasion of this payment, the applicant asked him to go to the other side of the road before he spoke to him.

17.Mr X was heavily cross-examined by counsel for the applicant, Mr Oliver Davies, who also appears on this application for leave to appeal.  One of the tools which Mr Davies employed to cross-examine Mr X was the record of interview that Mr X had given under caution as part of the police blackmail investigation and the witness statements he had made to the police.  Mr Davies relied upon these documents to suggest that Mr X was deliberately hiding information from the police and lying to the court.

18.One of the matters on which Mr Davies relied in order to show inconsistency in the evidence of Mr X was the failure by Mr X to mention what he had said in his witness statement of 17 June 2014, namely that a meeting had taken place with Fei Kan and the applicant at which Fei Kan agreed with the applicant that if he gave him $28,000 as a protection fee that he, Fei Kan, could sell lunch boxes at the site and that he, Mr X had agreed to sell Fei Kan his business at the site on payment of a $30,000 handover fee.  Mr X agreed he had said this in his statement but he maintained that he in fact never received this amount from Fei Kan.  Towards the end of the cross-examination Mr X said the agreement to sell his business to Fei Kan was made at the Tak Fuk restaurant in early 2014.  The agreement was that Fei Kan would refund the $30,000 which Mr X had paid the applicant as protection fee to take over the business.  The applicant was present at this meeting.   

19.Also in cross-examination Mr X agreed he had failed to tell the police that a meeting had taken place in May 2013 at the Tak Fuk Restaurant.  Mr X initially said in cross-examination that though he knew of this restaurant, he had never been there with the applicant.  Then he said he remembered an occasion when Fei Kan asked him to give the applicant money and he handed over money to the applicant at this restaurant.  It was then suggested to him that in April/May 2013 he went to this restaurant to meet the applicant and a man by the name of Wong Hung Fai.  Mr X then agreed that such a meeting had taken place and that the reason it came about was because he had been worried about his safety at the site and had asked Wong to arrange a meeting with someone who could watch over things.  Wong told Mr X that if he paid the applicant $30,000 he would be allowed to sell things at the site. 

20.The meeting took place and Wong suggested a price of $30,000 and the applicant agreed.  Mr X agreed to pay this money because he was scared that if he did not there would be trouble.  He said:

“A. ‘Ah Go’ said that once he received the sum of money from me, he guaranteed that no trouble would be caused to me. If there was any trouble at that place, I could contact him, and he would settle it.

Q. So it was not ‘Ah Go’ you were afraid of.

A.     He said that if I didn’t pay, he would find somebody to cause trouble to me in due course, and would not allow me to sell there.”

21.Mr X agreed that he had never mentioned the Tak Fuk restaurant meeting in his statements to the police.  He now claimed that the threat made by the applicant that if Mr X tipped off anyone about paying this money he would chop him to death and burn his house was made at the Tak Fuk restaurant.  Mr X refused to put a date on this meeting saying that he could not remember the date.  He even said he was “not very sure” that it took place a long time before the November demand.

22.He was then cross-examined about the November blackmail demand that is the subject of the charge.  This was now referred to as the second incident.  He was asked why he told the police only of this incident.  He explained:

“Previously, I dare not tell the police, as I was afraid that there would be something unfavourable caused to me. But after the second incident, as I had to give statements, I had to be confronted with the police. I therefore tell the incident in November.”

23.In respect of the November incident Mr X agreed that when the applicant asked for another $30,000 in November 2013 the applicant claimed to Mr X that he needed money to carry out renovations of his house and he asked Mr X to make an advance payment of the protection fee.  The applicant said that he could guarantee that no one caused trouble. 

24.When asked why he did not say this in his examination-in-chief Mr X replied:

“This morning, I was very scared, I was very anxious. This is the first time I gave evidence in court.”

25.It was suggested to Mr X that the applicant was, in fact, only seeking a loan and had asked a mutual friend, So Yun Lam, to approach Mr X and ask for a loan on his behalf.  Mr X disagreed and said although he had met So and the applicant together at the Lo Yau Kee restaurant, it was the applicant who had asked for the advance payment of the protection fee.  Mr X agreed that he had handed over money to So who in turn handed it to the applicant but was positive that this was an advance payment of the protection fee.  Mr X agreed that he had not told the police of this arrangement, claiming that he was scared because of the warning given to him by the applicant about tipping off others and the consequences of him so doing.

26.Mr X agreed that, contrary to his evidence-in-chief, at no stage was $30,000 given to the applicant at the construction site and that money was only handed to the applicant in restaurants.  But he then claimed that he paid $7,000 to the applicant outside of a restaurant on the instruction of Fei Kan so that the applicant would allow Mr X to sell there.  This answer was not further explored with Mr X.   

The defence case

27.The applicant did not give evidence but called one witness, So Yun Lam.  Mr So said that he had been had been asked by the applicant to approach Mr X to obtain a loan so that the applicant could renovate his house.  Mr So said he agreed to stand as a guarantor for the loan but had only known the applicant for over 2 years and had no idea what employment he held, if any.  Mr So said that he agreed to act out of kindness and claimed that it was not uncommon for loans to be made unsupported by any documents.  Mr So claimed that Mr X trusted him as a guarantor even though he only came to know Mr X in 2013 when he used to buy lunch boxes from him and this loan was made in July of the same year.

The Reasons for Verdict

28.The judge had no difficulty in rejecting the evidence of So Yun Lam.  He said that he found it inherently improbable that So would take on the role of guarantor and incur the risk of default in respect of a undocumented loan when he, Mr So, would gain nothing from the arrangement. He said he also found it inherently improbable that Mr X would agree to make a loan to a person whom even Mr So admitted Mr X did not trust and this was a loan in respect of which there was no fixed term for repayment and no interest charged.  He also said that it was inherently improbable that Mr X would come to trust Mr So within such a short period and accept him as a guarantor for a substantial loan.

29.Finally the judge said there was no credible reason why the applicant sought the loan from Mr X and not from Mr So direct.  Mr X had said that he had to borrow money in order to pay the applicant in November and so for him to advance to the applicant an interest free unsecured loan for an indefinite period simply did not make sense.

30.The judge concluded that Mr So had been put up to give this account and he rejected it.

31.The judge then turned his mind to the evidence of Mr X.  He considered what he described as the contradictions and inconsistencies in the evidence given by Mr X to see whether or not those contradictions and inconsistencies so fundamentally undermined his evidence that he could not be considered a reliable witness.  The judge recognised that much of what Mr X had said in cross-examination was not mentioned by him in his examination-in-chief.  The judge commented:

“It is fair to say in cross examination PW1’s description of the circumstances and the occasions on which he came into contact with the defendant was considerably wider than described by him in chief.”

32.But that did not prevent him from concluding that he could rely on the evidence of Mr X.  The judge accepted that the account by Mr X of circumstances in which he paid over the money to the applicant did differ from his evidence in chief and that Mr X had not disclosed certain details to the police.  But, he said that many of the claimed inconsistencies between his evidence in chief and cross-examination were not really inconsistencies as many of the matters that he had agreed to in cross-examination had not been canvassed with him in examination-in-chief.  When asked about them in cross-examination Mr X was not evasive although the judge accepted that Mr X was confused about dates. 

33.The judge did not find Mr X to have the degree of sophistication that would be necessary to deliberately lie to the police or to the court.  He was satisfied that this was not a situation where a witness was confronted with other evidence and contradicted what he had earlier said in order to tailor his testimony to fit in with the other evidence.    

34.Whilst accepting that Mr X was not a confident witness he did not think him to be an evasive or dishonest witness.  He concluded his Reasons for Verdict in the following way:

“68. I have given careful consideration to all the submissions made by Mr Davies on behalf of the defendant. In essence Mr Davies suggests PW1 was neither truthful nor reliable and that he was not telling the court the truth in an effort to hide something.

69. I have considered PW1’s evidence in the light of the submissions made by Mr Davies but having considered all his evidence (and the inconsistencies and contradictions such as they are) I found PW1 to be an honest witness and was doing his best to recount events doing so having to face the person across the court room who threatened him in such manner. The heart of the matter is the demand made in November 2013.

70.     I found PW1’s account of that unwarranted demand made by the defendant with menaces with a view to gain to be reliable such that I can be sure the defendant is guilty of the charge and I convict him accordingly.”

The grounds of appeal

35.The grounds of appeal complain that the only evidence against the applicant came from Mr X whose evidence, it is asserted, was inconsistent and contradictory, especially in relation to:

(1)     Mr X’s relationship with the applicant;

(2)     The circumstances in which Mr X paid money to the applicant; and

(3)     The dates and number of occasions Mr X paid money to the applicant.  

36.It is said the inconsistencies and contradictions in these area of Mr X’s testimony were significant and material and the judge failed to address them thereby rendering the conviction of the applicant unsafe and unsatisfactory.

Discussion    

37.The examination-in-chief of Mr X was very simple and straight forward.  It was that he began selling drinks and later food at the construction site from February/March 2013.  He had no contact with the applicant until November 2013 when the applicant approached him at the construction site and made the blackmail demand that is the subject of the charge.  A week later, after raising the money, Mr X handed it over to the applicant at the construction site.

38.Initially, in cross-examination Mr X remained adamant that he had never met or spoken to the applicant before the approach by him in November 2013.  He was equally adamant that the applicant had never asked him for more money and that he, Mr X, had never paid the applicant more money. Then everything changed.

39.Mr X’s revised testimony is that in May 2013 he himself initiated contact with the local bully through Wong Hung Fai in order to negotiate a protection fee.  A meeting took place at Tak Fuk restaurant on which occasion $30,000 was paid to the applicant as an annual fee.

40.Then in November 2013 the applicant approached Mr X and told him he needed money for renovations and asked for an advance payment of the 2014 protection fee.  This meeting took place at the Lo Yau Kee restaurant in the presence of So Yun Lam through whom Mr X paid a second protection fee of $30,000.

41.The only issue is whether the judge adequately dealt with this wholesale change of evidence by Mr X before concluding that Mr X was telling the truth and that he could rely on his evidence.

42.At this stage I am only concerned with whether the applicant has established a reasonably arguable ground of appeal.  I am satisfied that he has.  Arguably the change in testimony of Mr X is more than a series of contradictions and inconsistencies and arguably it may not be enough to say that many of the differences in the testimony is because the prosecution did not ask about them.  The prosecution did not ask about them because it did not know about them and it is reasonably arguable that Mr X deliberately sought to conceal them from the court in the course of his examination-in-chief.  All of these questions and the way in which the judge addressed them merit further exploration on appeal.

Conclusion

43.For the reasons set out in this judgment I allow the application for leave to appeal conviction.

Mr Wong Chun Hin Derek SPP, of the Department of Justice, for the respondent

Mr Oliver Davies, instructed by Wong & Co, for the applicant

[1] Before remembering this meeting Mr X had reaffirmed in cross-examination that after he stopped buying lunch boxes from Fei Kan he had no further dealings with him.