HKSAR v. CHAN KWOK HUNG AND ANOTHER

CACC 22/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 22 OF 2009

(ON APPEAL FROM DCCC NO. 788 OF 2008)

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BETWEEN

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REASONS   FOR   JUDGMENT

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Hon Saunders J (giving the judgment of the Court):

1.  This is an application for leave to appeal against conviction was heard on 23 July 2009. On that day we dismissed the application. These are our reasons.

2.  The Applicants were tried before Deputy District Judge Mierczak on 5 January 2009. On 7 January 2009, the 1^st Applicant, (Mr Chan), was convicted on one charge of blackmail, contrary to s 23(1) and (3) Theft Ordinance Cap 210, occurring on 13 July 2008, and one charge of claiming to be a member of a triad society, on the same day, contrary to s 20(2) Societies Ordinance Cap 151. Both Applicants were convicted on a joint charge of blackmail occurring on 16 July 2008. The 2^nd Applicant, (Mr Law) was acquitted on one charge of claiming to be a member of a triad society on 16 July 2008.

3.  The case for the prosecution came principally from the victim, Ting Kai Yip, (Mr Ting). His evidence was that in the early hours of the morning on 13 July 2008, he received a telephone call from Mr Chan. In an interview under caution, which was admitted by Mr Chan to have been given voluntarily, Mr Chan admitted making that telephone call.

4.  Mr Ting said that Mr Chan demanded payment of protection money in the sum of $3,000 per month. It was Mr Ting’s evidence that he asked which security company Mr Chan belonged to, and that Mr Chan said that he was “Tai Hung” of 14. Mr Ting said that he knew that 14K was a triad society and he was frightened. It was an admitted fact that the number 14 referred to an active triad group in Hong Kong.

5.  Those were the facts upon which the prosecution relied to establish the first count of blackmail against Mr Chan, and the charge of claiming triad membership.

6.  Mr Ting said that he was told to deposit the money into a particular Bank of China account held by a Mr Cheung Wai Man. Mr Ting replied that he did not have any money, and said that Mr Chan then demanded $1,500. Mr Ting said that he was afraid that his company premises would be damaged, so he telephoned a night shift taxi driver, Mr Lam Yau Ting, (Mr Lam), and requested Mr Lam to deposit $1,500 to the Bank of China account.

7.  Mr Lam only had $600 cash with him. Following the telephoned request, Mr Lam went to an adjacent ATM machine, and at 3:15 a.m. on that morning, deposited that sum to the account.

8.  Mr Ting said that about 11:40 a.m. later that morning, Mr Law telephoned him and asked whether he had deposited the sum. In an interview under caution, which was admitted by Mr Law to have been given voluntarily, Mr Law admitted making that telephone call.

9.  Mr Ting said that Mr Law said that he would go to Mr Ting’s company premises in 30 minutes to collect the outstanding balance. It was Mr Ting’s evidence that Mr Law did not arrive, but that at about 1 p.m. he received a telephone call from a male who told him to deposit the balance of the funds in the Bank of China account. Mr Ting said that he refused, and was warned that his company would need a big renovation if the money was not paid.

10.  Mr Ting said he then reported the matter to the police. An arrangement was made with the police that if a further approach was made to him for protection money Mr Ting would telephone the police and say: “I am Ting Chai, please bring the money to me,” and the police would then come to Mr Ting’s premises.

11.  At about 1 p.m. on 16 July 2008, Mr Chan telephoned Mr Ting and told him that he was coming to Mr Ting’s company to collect the outstanding money. At about 2:25 p.m. Mr Chan, Mr Law and a 14-year-old girl came to the premises.

12.  Mr Ting said that he was accused by Mr Chan and Mr Law of sexually harassing the young girl, and that a demand was made by them for further money. He said that Mr Chan took a knife wrapped in cloth and put it on the desk. He said that threats were made. Mr Ting said that he agreed to make a payment after having been assaulted, and said that he would call someone to bring over the money. Mr Ting said that he then telephoned the police and used the agreed code phrase to summons the police.

13.  He said that shortly thereafter, before the police arrived Mr Chan, at the suggestion of Mr Law, left and apparently discarded the knife, subsequently returning. Mr Chan and Mr Law were arrested upon the arrival of the police.

14.  Those were the fact upon which the prosecution relied to establish the joint charge of blackmail against Mr Chan and Mr Law.

15.  There was no issue as to the identification of Mr Chan or Mr Law, or the fact that they made telephone calls to Mr Ting.

16.  Neither accused gave evidence, nor did they call evidence.

17.  Part of the evidence before the court, admitted by Mr Chan and Mr Law, constituted a video footage lasting one minute 22 seconds taken on a mobile telephone at 2:41 p.m. on 16 July 2008. That video footage, taken by the young girl who had gone to the premises with Mr Chan and Mr Law on the afternoon of 16 July 2008, showed part of the conversation between Mr Ting, Mr Chan and Mr Law and the young girl. A transcript of the conversation formed part of the agreed evidence.

18.  Mr Ting was extensively cross-examined by counsel for the Applicants, and the submission made at trial was that by virtue of alleged discrepancies and inconsistencies arising from that cross-examination Mr Ting’s evidence was not capable of belief. As Mr Ting’s evidence constituted the only evidence against the Applicants it was submitted that as he was unreliable the charges should be dismissed.

19.  That submission, together with one other matter relating to the video footage, constituted the substance of the grounds of appeal before us, it being contended that by virtue of the unreliability of Mr Ting, the convictions were unsafe and unsatisfactory.

20.  In a 10 page judgment the Judge reviewed the evidence, gave consideration to a number of the discrepancies and inconsistencies and found that he believed Mr Ting.

21.  The Judge’s reasoning process has been criticised by counsel in this court. The Judge was not required to deal in detail with every single alleged discrepancy or inconsistency. While his reasoning might have been more comprehensive, we are in no doubt at all that both proper consideration and sufficient reason has been given for rejecting the submission made that the judge has not adequately analysed the evidence.

22.  It is right that there were a number of areas in which there were discrepancies and inconsistencies in Mr Ting’s evidence. But the Judge, having heard and seen Mr Ting give evidence, and having given proper consideration to the major discrepancies, was entitled to come to the conclusion that Mr Ting should be believed.

23.  We do not propose to deal in detail with every discrepancy or inconsistency relied upon, but the following will give an appropriate flavour of the strength of the argument made.

24.  There was an inconsistency in respect of the precise time at which the first telephone call had been received by Mr Ting, and when he made his call to Mr Lam, to arrange the deposit of funds.

25.  In the cross-examination of Mr Ting he agreed that “in the small hours of 13^th”, he had been telephoned, and that in that telephone call the demand for protection money was made. His evidence was that he subsequently telephoned Mr Lam and asked Mr Lam to make the deposit. The evidence of Mr Lam was that he was telephoned by Mr Ting at 12 midnight.

26.  The inconsistency alleged was that, if as Mr Lam said, he was telephoned by Mr Ting at 12 midnight, and the phone call making the demand for protection money was in the small hours of 13 July, then arguably the request to deposit funds was made prior to the demand for protection money. In those circumstances it was suggested that the request to deposit funds could not have related to a demand for protection money. The Judge dealt with that inconsistency by finding that Mr Lam was mistaken about the time at which he received a telephone call.

27.  This inconsistency must be considered in the light of the fact first, that not only did Mr Chan admit making a telephone call to Mr Ting, second, that Mr Ting was called a number of times by both Mr Chan and Mr Law that night, and third, that as a result of that telephone call moneys were deposited to the Bank of China account. Further, while it was put to Mr Ting in cross-examination that he owed a debt to Mr Chan, a proposition which was denied, there was no evidence at all to substantiate the proposition.

28.  Although an apparent inconsistency between Mr Lam and Mr Ting as to the time of phone calls was established, the suggestion of any inconsistency had not been put to Mr Ting. Neither had Mr Ting been challenged as to the time at which the first call had been made to him that evening. Further, the apparent inconsistency was not put to Mr Lam, who in cross-examination was invited merely to confirm the time of the call. The cross-examination was in the following terms:

“Q. Just one question, Mr Lam. You told us that Ting Chai called you at about 12 midnight. You mean that in the small hours of 13 July?

A. Correct. That is the 12 midnight closest to the 3 a.m.”

Other than with that question, the issue of any inconsistency was not explored at all with Mr Lam.

29.  In those circumstances, the evidence and the cross-examination fell a long way short of justifying a submission that a significant inconsistency had been established, upon which it could be argued that Mr Ting ought not to be believed. The Judge was entitled, in the light of the evidence, to say that Mr Lam merely referred to “about midnight”. In fact, as may be seen, Mr Lam confirmed that the call was “in the small hours” of 13 July, the same period in which Mr Ting said he received the demand for protection money.

30.  Having regard to the whole of the evidence, and in particular the fact that the calls were admitted, and that there was no evidence whatsoever to substantiate the allegation that a debt was being repaid, we are satisfied that this apparent inconsistency, adequately dealt with by the Judge, was not such as to call into question the whole of the truthfulness of Mr Ting.

31.  Next, it was submitted that, as in cross-examination Mr Ting agreed that he had not told the police that Mr Chan had alleged that he had harassed the young girl, yet that was his evidence given in the witness box, that evidence was not true, and that his failure to include that matter in his witness statement demonstrated Mr Ting to be unbelievable.

32.  It is however quite plain from the transcript from the video footage that in the course of the conversation on 16 July 2008, an allegation had been made against Mr Ting that he had interfered with the young girl. In the light of that corroboration, the omission of the facts of that part of the event from his witness statement does not render either the evidence false, or Mr Ting unreliable.

33.  In his statement to the police, Mr Ting had told the police that the first telephone call had come on his mobile phone. That call did not show on his mobile phone records. Again, as with the precise time of the call, the discrepancy as to which telephone the call was received on, is irrelevant, in the light of the fact the call was admitted. It does not, even with other minor discrepancies, provide a basis to say that Mr Ting should not be believed.

34.  Mr Ting was cross-examined on his previous convictions. These included convictions in 1987, of assault with intent to rob, in May 1992, of taking a conveyance without authority, in October 1992, of robbery, in 1995, of assault occasioning actual bodily harm and resisting arrest, and in 2003, theft. Mr Ting said, with the exception of the 2003 theft conviction, that he could not recall the other convictions. It was suggested before us that this was not credible and that the judge failed adequately to recognise that fact. One needs to examine the complaint in the context of the reality of the evidence and its tenor, and of the Judge’s remarks. There is indeed room for concluding that the witness was not open about his past but it is evident from the testimony that he was doing this in an attempt to say that he was now solid and honest employment and that his past should be forgotten. In full context his lack of openness in this particular regard did not necessarily mean that he was not to be believed on the central facts of the case, and that is what the judge found.

35.  The Judge was alive to the fact of the previous convictions and was entitled to conclude that their existence should not necessarily cause him to disbelieve the evidence of Mr Ting.

36.  The Judge was criticised for making no reference at all to the video footage taken by the mobile phone. Had he done so it would only have further strengthened the case against the Applicants. It is abundantly plain from that transcript that Mr Ting was being accused of interfering with the teenage girl. The video footage served only to further corroborate Mr Ting’s evidence.

37.  Mr Ting’s evidence was corroborated in another way. It was not in dispute that at 3 a.m. on the morning of 13 July 2008, Mr Lam had paid $600 into Mr Cheung’s bank account. Although assertions had been made in the Applicants’ interviews under caution that they were seeking to recover a debt, nothing was put to Mr Ting about any debt owing to Mr Cheung. In the absence of any other explanation for Mr Ting to arrange for Mr Lam to make a payment into Mr Cheung’s bank account at 3 a.m., the fact that that event occurred tends to support Mr Ting’s evidence.

38.  Having accepted the evidence of Mr Ting, a conviction was inevitable. Assertions had been made by the Applicants in their interviews under caution that they were collecting a debt, but there was no evidence to substantiate those assertions. Having found Mr Ting to be a believable witness, in the absence of any evidence to the contrary the Judge was bound to convict.

39.  We found the convictions to be neither unsafe nor unsatisfactory. The applications for leave to appeal were accordingly dismissed.