HKSAR v. WONG WAI YIP and Another

IN THE COURT OF APPEAL OF THE HKSAR

1996, No. 718
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. Wong Wai-yip (Applicant Wong), Chu Wai-kwai (Applicant Chu) and one Tong were charged in the District Court before His Honour Judge Davies with blackmailing Mr Yau Wah (Yau). After trial Tong was acquitted, but Applicant Wong and Applicant Chu were convicted by the Judge. That is the 1^st Charge. In the 2^nd Charge, by himself Applicant Wong was accused of similarly blackmailing one Mok. He was also convicted after trial. Applicant Wong and Applicant Chu now apply for leave to appeal against conviction.

2. The two blackmailing charges arose from these facts: in the first quarter of 1996, unwarranted demands for $2,000 per month for each dump truck were allegedly made of Yau and Mok with menaces. The demands made were with a view to gain for respectively Applicant Wong and Applicant Chu in the 1^st Charge and Applicant Wong alone in the 2^nd Charge.

3. The argument central to the defence at the trial was that these demands were made for the protection or promotion of a legitimate trade interest of Oriental Horse Enterprises Ltd. (Oriental Horse) and that even if these demands had been made with menaces, in each case the amount demanded in furtherance of business interest was commensurate with the facilities offered. Counsel for the Applicants relies heavily on the ratio in Thonre v. Motor Trade Association and another [1937]3 All ER (annotated) 157. Much support is sought to be derived from the Thorne case, albeit decided under s.29(1)(i) of the Larceny Act, 1916 which read:

"Every person who utters, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any property or valuable thing ..... shall be guilty of felony, and on conviction thereof liable to penal servitude for life ......". (Emphasis supplied)

4. The question for their Lordships' consideration in Thorne was whether for the purpose of enforcing an association's trade policy, writing letter to threaten to put a member on the stop list unless a fine was paid and an undertaking given constituted an offence of demanding money with menaces without reasonable or probable cause. Our equivalent to s.29(1)(i) was removed in the 70's. Save for the substitution of "reasonable grounds" for "reasonable or probable cause", it would seem that the same ingredients in s.29(1)(i) of the 1916 Act are found in s.23(1) of our Theft Ordinance. Our s.23(1) provides that "a demand with menaces is unwarranted unless the person making it does do it in the belief (a) that he has reasonable grounds for making the demand and (b) that the use of the menaces is a proper means of reinforcing the demand".

5. Our attention is drawn to several observations of their Lordships' in the Judicial Committee set out at pp. 160 E/F-G, 164 C-D, 167 G-H, 171 G & 172 A/B-B/C of Thorne. The Applicants maintain before us, as they did at the trial, that their respective demands were not made "for the mere purpose of putting money in [their] pocket" but made in furtherance or protection of a legitimate business interest of Oriental Horse and for an amount which was not exorbitant or extortionate. Stripped of all exegesis on Thorne, the Applicants' defence advanced at the trial was that their demands were made within reasons as allowed by the law.

6. Applicant Wong was the foreman of Oriental Horse and Applicant Chu was his senior in and a shareholder of that company. The Applicants, Yau and Mok are all indigenous residents of Lantau. Oriental Horse controlled a site in Tung Chung, which was not established at the trial to be the only parking lot in the area for dump trucks working for the Lantau Airport Project. Yau and Mok were based outside Tung Chung. It was alleged that Applicant Wong demanded from Yau $2,000 per month for each dump truck under the pretext of providing some services. According to Applicant Wong, the monthly sum was for cleaning, including water supply, maintenace and the security of parking within the controlled site of Oriental Horse. Yau was also obliged to sign some form of a service contract. Applicant Chu did not give evidence. For these alleged services in the defence case, if supplied, the sum of $2,000 per month per dump truck could not be said to be extortionate, but were these services genuinely offered?

7. Yau gave evidence that on being pressed to accede to the demand, Applicant Wong warned him: "Don't work over here. If anything happens, I won't be responsible". Yau understood that if he refused to pay the "cleaning and maintenance fees", "there would be damage to [his] vehicles". He was "ordered", so testified Yau, to leave Tung Chung. Yau was speaking in terms of being "charged forcibly". Yau told the Judge that he did not park in the compound of the controlled site of Oriental Horse. Yau was adamant that he would not take water from Oriental Horse and that in any case he did not have to pay for the water for cleaning. He refuted the suggestion that there could be a misunderstanding on his part of the demand made by Applicant Wong and his intention. Applicant Wong instructed Yau to meet his "big brother", Applicant Chu. Accordingly, Yau met and had a discussion with Applicant Chu. There were subsequent meetings between Yau and Applicant Wong and/or Applicant Chu, in the company of a police sergeant then working under cover.

8. From his evidence and statements made to the police, Applicant Wong did make the demand, but he claimed that the demand made and repeated was for scaring Yau. Applicant Wong complained that Yau had spread vicious rumors about Oriental Horse. Not only was Yau said to have "painted [Oriental Horse] black", he took away his five lorries, three of his own and two on hire, from serving Oriental Horse, and his loose talk was believed to cause some drivers also to leave. Applicant Wong explained in his cautioned statements that he "just scared him into turning to help our company". He "thought of some way to scare him in order to make him work for" him. He "just threatened Yau Wah into delivering loads of earth for" him by telling Yau "that [he] was a Tor Dei and that he had to deliver loads of earth for [him] if he wanted to work in Tung Chung". Applicant Wong claimed that the demand of a monthly $2,000 per dump truck was independent of such intimidation and that the amount so demanded of Yau was for his enjoyment of the security and facilities within the controlled site of Oriental Horse. At a meeting in the company of the Detective Sergeant, Applicant Wong said to Yau: "We, Oriental Horse, have to pay a portion to Ah Kung and I am not just collecting it from you alone. Everyone has to pay."

9. Counsel submits that at least two reasonable inferences are open to be drawn from the circumstances: one of making unwarranted demands with menaces with a view to gain for Applicant Wong and/or Applicant Chu and one of taking advantage of these Applicants' business interest in Oriental Horse by charging Yau and Mok for parking, cleaning and maintenance.

10. At the trial, extensive evidence of Yau was led in chief and he was cross-examined by Mr Miller and Mr Chung, then separately representing Applicant Wong and Applicant Chu. Yau was re-examined. This court has the benefit of the full transcript of Yau's evidence before the Judge. He displayed no reluctance in incriminating these Applicants. In chief, he was firm on his accusations. He stood his ground in cross-examination, and he denied that he could have possibly misunderstood the demands made by or for these Applicants and their intent.

11. An application was made to introduce a Statutory

Declaration of Yau made on 13 July 1997. His claim of impediment in or hindrance to his giving full evidence caused by interruptions of counsel and judge is wholly without support from the transcript of his evidence. Further, compared to his then positive assertions made unhesitatingly from first to last, the unexplained recantation in his post-trial Statutory Declaration is lacking in credibility and sounds pathetic. Mr Miller readily concedes that he faces difficulties in overcoming the requirements of s.83(V)(2) of the Criminal Procedure Ordinance and their impact on s.83(V)(1). No good ground has been shown in support of counsel's application which we have, for these reasons, refused. In fact, it was refused at the conclusion of counsel's submissions without calling upon Mr Bruce.

12. As we said, following the instructions of Applicant Wong, Yau met and discussed with his "big brother", Applicant Chu. During the conversation, Applicant Chu said to Yau: "Your vehicles can all leave Tung Chung". He further told Yau that if anything should happen to Yau's vehicles, he, Applicant Chu, would not "feel responsible". Applicant Chu added : "You have been working here for such a long time, there should be no problem with the price." After Yau reported the matter to the police, Detective Sergeant 3747 was assigned to act as an under-cover agent. In the company of the Detective Sergeant, on one occasion when Yau pleaded with Applicant Chu to allow him to finish the work in that afternoon, Yau was told to "drive [his] vehicles away and leave tomorrow." Applicant Chu said to the police in his cautioned statement that they "forced [Yau] to let his vehicles to be washed by [him], otherwise he could not deliver loads of earth in Tung Chung." He further stated that he told Yau he was "a Tor Dei and [Yau] had to deliver loads of earth for [him] if [Yau] wanted to work in Tung Chung" but that in doing so he "merely frightened [Yau] by asking for car wash fees. [He] just hoped [Yau] would help [him] to deliver loads of earth .......... [He] had no intention to collect from [Yau] $2,000 as car wash." Together with the evidence of Yau which the Judge accepted, there was overwhelming evidence for the Judge to find a joint enterprise between these Applicants. On the evidence, it is difficult to see what legitimate business interest these Applicants were actually seeking to promote.

13. In his Reasons for the Verdict, the Judge said :

" In his defence, D1 [Applicant Wong] has said that this matter concerned a desire on his part to persuade PW1 [Yau] to work for Oriental Horse, and that because PW1's [Yau's] vehicles were parking on Oriental Horse's Construction site, this method of persuading entailed the proposition to PW1 [Yau] that he be allowed to continue to park on Oriental Horse's land subject to the payment of a fee for parking, and that a fee would include also cleaning, maintenance and security. He denied that there was any attempt to prevent PW1 [Yau] from working in Tung Chung or any threats to damage his vehicles if he continued to do so."

"It was submitted on the behalf of D1 [Applicant Wong] that there was a reasonable and probable cause for the demand, as it was made in pursuit of a lawful business interest".

14. The Judge posed the questions:

"At the end of the day, the point in issue, it seems to me, is a relatively narrow one. Was this, as the Crown contends, a matter of an unwarranted demand for money, disguished within the terms of a bogus contract, coupled with a threat that if PW1 [Yau] did not work for Oriental Horse or alternatively did not pay under the cleaning contract, he would not be allowed to operate in the Tung Chung area of Lantau Island, and if he dare do so, would have good reason to be concerned for the safety of his vehicles? Or could it be, as the defendant submits, a lawful demand for fee for parking and other services made with a view to persuading PW1 [Yau] to work for the defendant's company?"

15. The Judge concluded that the demands made were unwarranted demands and that extortion in the disguise of fees had to be paid for working in Tung Chung otherwise the safety of vehicles would be at risk. The Judge accepted that Yau's vehicles had not been parking in the controlled site of Oriental Horse at the material time. Once the Applicants' case was disbelieved, the Judge was driven to draw the only inference from the circumstances and the conversations at various meetings in and outside Oriental Horse and at a local store/cafe that these demands were made with menaces and without reasonable cause. He was entitled so to infer from the evidence we have alluded to. It would have been incredible to accept the Applicants' claim that they were acting in furtherance of the interest of Oriental Horse. The defence of both Applicants was rightly rejected by the Judge. He found both Applicants guilty of the 1^st Charge.

16. As to the 2nd Charge against Applicant Wong alone, the Judge found a similar unwarranted demand made of Mok "coupled with a threat that if it were not paid, Mok would have good reason to be concerned for the safety of his vehicles". Counsel criticizes the reference made by the Judge to Mok's "substantially accurate account" of his dealings with Applicant Wong. It is almost unreal to expect any witness to give a perfect account of a past event. We find the criticism wholly unjustified.

17. As for Mok, as stated in the skeleton submission of Mr Miller, counsel for these Applicants, he explained to the Judge "that he feared scenes that he had seen on TV or police file would happen - that his vehicles would be damaged". The transcript of Mok's evidence is not included in the Appeal Bundle. In the course of the appeal, this court observes that parties are at liberty to apply for his transcript, but no application has been made. On the evidence before him, the judge concluded: "I find that a similar unwarranted demand for money was made of PW2 [Mok] coupled with a threat that if it were not paid, PW2 would have good reason to be concerned for the safety of his vehicles. I am satisfied that PW2 [Mok] had good reason for the concern he expressed in evidence, that he felt something would be done to his vehicles as a result of his failure to meet D1's [Applicant Wong's] demand." Applicant Wong was accordingly found guilty of the 2^nd Charge. The Judge had the advantage of all the evidence. Despite the absence of direct evidence on menaces, the Judge has not been shown to be wrong.

18. The Judge clearly demonstrated his comprehension of the prosecution case and the defence raised, however far-fetched. He returned a finding to every ingredient in the charges adverse to the Applicants. It was open to the Judge so to do on the evidence. We cannot interfere. The applications of both Applicants are therefore dismissed.