R. v. NGAI CHUEN MAU

IN THE COURT OF APPEAL

1994, No. 500
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the court):

1. The applicant seeks leave to appeal against his conviction for blackmail in the District Court.

2. According to the prosecution case a man who identified himself as "Ah Kent" had a telephone conversation with Mr Li Chiu-wing the Security Supervisor of a construction site at Fanling. Ah Kent said that he wanted to discuss the payment of "tor tei" fees for the site.

3. Mr Li arranged for a meeting at the site the next day. He also made a report to the police. Arrangements were made for a police ambush and for the conversation to be recorded on a concealed tape recorder.

4. The next day the 29 December 1992 the applicant and another man attended at the site and a conversation took place. The conversation was recorded and counsel representing the applicant and the other man agreed that the tape recording accurately recorded the conversation.

5. It was also agreed that "tor tei" refers to a local bully and that collecting "tor tei" means collecting local bully fees.

6. Also it was agreed that the reference to Shing Wo in the conversation was a reference to the Wo Shing Wo Triad Society.

7. During the course of the conversation two $1,000 marked banknotes were given by Mr Li to the two men.

8. Counsel conceded at the trial that demands had been made by the two men but submitted that the demands had not been made with menaces.

9. Deputy Judge Chain who was the trial judge considered the whole of the fairly lengthy conversation and came to the conclusion that the men had undoubtedly resorted to menaces.

10. In coming to this conclusion he had taken cognisance of the co-defendant's reference to the Wo Shing Wo Triad Society and the fact that neither the applicant nor his co-defendant had any legitimate right to demand moneys.

11. The amount demanded was a down payment of $30,000 and payments thereafter of $9,000 per month. The gist of the conversation was that the payments would constitute protection money.

12. Before us the applicant said that he had originally gone to the site in connection with a request that they might be allowed to operate a canteen at the site.

13. He had wanted to leave the scene when his partner had made demands. He had unexpectedly been drawn into the matter and he had assumed a subsidiary role.

14. A reading of the transcript of the tape-recorded conversation does not bear these contentions out. It is difficult on a reading of the transcript to imagine how any other conclusion could have been reached by the Deputy Judge Chain than the one he did.

15. The conviction was in no way unsafe or unsatisfactory and this application for leave is dismissed.

16. The applicant also appealed against the sentence of two years and nine months' imprisonment which was imposed upon him. In mitigation he informed us that it was his wish to reform himself. He also told us that his father had died in February when he was in prison and that he had not been permitted to attend the funeral. He generally felt remorse for the whole matter. We regret that we can see no compelling reasons to differ with the decision reached by the trial judge and that the sentence which was imposed was a proper one in all the circumstances. The application for leave to appeal against the sentence is also dismissed.