HKSAR v. WONG KAR PO AND OTHERS

HCMA1226/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1226 OF 2005

(ON APPEAL FROM KTCC 2828 OF 2005)

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REASONS  FOR  JUDGMENT

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1. The appellants were convicted after trial of one joint charge of “blackmail” [Charge 1] and one joint charge of “assault occasioning actual bodily harm” [Charge 2] — except for the 2^nd appellant who pleaded guilty to Charge 2 at the close of the prosecution’s case.  Abandoning their initial notices, they now appeal against the conviction for Charge 1 only.

The prosecution’s case

2. PW1 was the sister-in-law of PW2.  They co-owned a cooked food store in Chuk Yuen South Estate in Wong Tai Sin.  Its business hours were 2 a.m. to 3 p.m. on the same day.  As PW2 also ran other businesses, it fell upon PW1 to open and operate the stall at least until the early morning.

3. At 3:30 a.m on 21 April 2005, PW1 was as usual alone in the stall when the appellants arrived and sat themselves at a table.  After two rounds of tea and some enquiry as to when the “boss” would return, the 1^st and 2^nd appellants finally broke silence and informed PW1 that they were there to collect money — $3,000 a month of “tor dei” fee or “there was no need for [PW1] to open the stall”.  This frightened PW1 who nevertheless managed to defer the matter until 5 a.m. when the 1^st and 2^nd appellants began to pester her about calling her boss back.  This, PW1 did not do until 6 a.m. but still could not get through.  She tried again at about 7:30 a.m. and this time managed to tell PW2 everything that had happened.  In return, she was told to call the police forthwith.

4. PW2 himself returned to the stall about 15 minutes later.  He went up to the appellants and said, “Four bosses, money cannot be earned here.  It’s very hard for me to run my business.”  But the appellants’ response was to start attacking him, and to abuse him with foul language.  The 1^st appellant even tried to hit him with a teapot but was prevented to do so by PW1 who dashed forward and wrenched at it.  This broke the teapot and injured the hand of the 1^st appellant who then turned to hit PW1 only to be stopped by the 2^nd appellant.  When the police arrived, PW1 and 2 were still surrounded by the appellants.

The defence case

5. The evidence of PW2 was unchallenged.  Nor did any of the appellants testify.  Defence witnesses were, however, called to establish the appellants’ absence from the scene between 12 and 7 a.m. on the day in question.  Overall, it would appear that their defence at trial was first, PW1 lied about the blackmail and second, the subsequent event involving PW2 did not amount to assault.

6. Quoting from the magistrate’s Statement of Findings, the following is what each of the defence witnesses said in essence :

(1)     DW1

“[DW1] has been working as a manageress in Kar Lok dancing ballroom in Jordan Road for 3 to 4 years.  She knew all 4 defendants who were regular customers …

At about 12 to 1 am on 21 April 2005, D1, D3 and D4 came to the ballroom.  At about 2 am, D2 also came.  They left about 3 am and went up to the Kam Lung Fung Nightclub on the upper floor.  They brought a girl from Kar Lok to Kam Lung Fung with them.  At about 4 am, D3 cam down and asked why the girl they brought up left so soon.  DW1 told him that it might be because time’s up because she was to go up for one hour only.

On 24 April 2005, [DW5] came to see DW1 and asked if [D3] had come up to dance a few days ago.  She replied in positive and … found the bill … At that time, [DW5] saw that there was CCTV equipment and he asked DW1 to keep a copy of the tape on that day for him. … Later on 14 October 2005, she handed it over to the defence lawyer and was asked to be a witness on the same day.  Before she came to give evidence, she had never watched the tape.  The machine operated well in April.  The date and time shown on the tape was accurate.  The photocopy of the receipt and the tape were produced as Exhibit D2 and D3 respectively.  From Exhibit D2, DW1 could say that the 4 defendants were in her working place between 1 am and 3 am on the day in question.  In fact, the bill showed that they were there from 12:10 am to 3 am.  Exhibit D3 showed that D3 was in her working place around 4 am.  When the tape played in court during trial, DW1 saw D3 sitting and talking to mamas an Man Nai from 4:10 am to 4:12 am.  D3 was asking Man Nai why the girl they brought up left so soon.  DW1 also saw D3 coming down from Kam Lung Fung and entered her working place at 4:39 am.

Referring to Exhibit D2 … Number of persons was 1/1.  DW1’s explanation was that no matter how many people came up the bill would still print 1/1.  Yet, she said that if a crowd of 20 turned up, the bill would mark 3 or 4 …

DW1 was not the one who received the 4 defendants.  She only went over to their table which was next to the doorway to have a chat.”

(2)     DW2

“[DW2] is working as a waitress in … Kam Lung Fung … She knew the 4 defendants for over a year.  At some time after 3 am on 21 April 2005, the 4 defendants came to her nightclub to dance and stayed for an hour.  They left at some time after 4 am.  After 2 or 3 days later, [DW5] went to see her and asked if D3 had gone to her nightclub … She found the receipt and made a photocopy of it.  It was produced and marked Exhibit D4. ... On the day in question, DW2 was the person who took the bill to the 4 defendants for settlement.

Exhibit D4 showed that the party stayed in this nightclub from 3:08 am to 4:32 am.  …The number of persons printed on it was 3/0.  ‘3’ meant the number of persons who came was 3 and ‘0’ meant no admission fee was to be collected.  Yet DW2 insisted that 4 male and 1 female came.”

(3)     DW3

“[DW3] worked as a manager in Red House Restaurant at Jordan Road. … He knew the 4 defendants as they were the frequent customers of the restaurant.  On that day, the 4 defendants did go to the restaurant for a drink.  They settled the bill at about 6:15 am.  There was some dispute on the bill in relation to the price of the wine.  DW3 was the person who took the bill to them.  After 2 or 3 days, a friend of them approached DW3 and asked for the receipt … DW3 took out the receipt … and it was produced as Exhibit D5.  Exhibit D5 showed that 5 persons occupied that table.  However, DW3 insisted that there were only 4 persons.

On that day, there were 60 – 70 customers in the restaurant and DW3 served over 20 bills to customers for settlement.”

(4)     DW4

“[DW4] works as a waiter in the cooked food stall adjacent to PW1’s stall.  He knew D2 who often patronized the stall.  At about 7 am on 21 April 2005, D2 came to DW4’s stall with 3 friends (the other defendants) to have tea.  There was bright daylight at that time.  As DW4’s stall was full, he asked them to go to the stall next door. … After a short while, DW4 heard somebody quarrelling.  He heard somebody asked for refilling water and complained that none came to refill water.  He walked over to have a look.  He saw D2 was one of the people quarrelling.  It was about 7:35 to 7:40 am.

Under cross-examination, DW4 agreed that he was very busy at the time because there were 70 – 80 customers at his stall and he was concentrating on his work inside his stall.  It was also very noisy due to the number of people at his stall.  He was asked to be a witness about a month after the quarrel.  He agreed that as there were so many customers day in and day out, he was unable to recall the date and time of a particular incident.”

(5)     DW5

“[DW5] is the younger brother of D3.  After D3 was arrested for this case, he went to visit him on 24 April 2005.  As a result of what D3 told him, he approached manageress and waitress of nightclubs on behalf of D3.”

The magistrate’s findings

7. In the end, the magistrate accepted the evidence of both PW1 and 2.

8. As regards the defence witnesses, this is what she said about DW1 :

“... the most important part of the tape [Exhibit D3] was the image shown on it.  DW1 pointed out that D3 was the man who appeared at 4:10 am and 4:39 am.  I watched the tape again and again.  I would say the image of this gentleman was not clear at all.  Although DW1 said that this was D3, she did give comment that she could not see clearly and that it was flushing so much that she could not see clearly when she was asked to point out other defendants when they entered the ballroom.  She said that she could recognize D3 by the way he was walking.  Given the quality of the image shown and the movement of this gentleman as depicted, I cannot rely on DW1’s evidence to say that this gentleman was D3.

Moreover, DW1’s evidence was that D3 came down around 4 am and asked why the girl they took up left so soon and DW1 explained to him that it might be time up …  Yet when watching the tape, she pointed out that from 4:10 am to 4:12 am, D3 was in the ballroom talking to Man Nai asking her why the girl they brought up left so soon …  At no time did DW3 pointed out herself in the tape.  In fact, this is the only time she mentioned about the appearance of D3 after leaving the ballroom at 3 am.  Yet, she pointed out the gentleman shown on the tape at 4:39 am to be D3 who came down from Kam Lung Fung … It would be strange …if the defence relied on Exhibit D4 to say that the 4 defendants left Kam Lung Fung at 4:32 am.

After careful observation on the tape and the evidence DW1 gave in relation to the tape, I do not consider the tape can give any assistance in the case.  I place no weight at all on this tape (Exhibit D3).

As to the receipt Exhibit D2, … the number of persons printed on it was incorrect.  The explanation that no matter how many persons came up the bill would still print 1 person cannot be accepted.  Nothing on this receipt showed that a girl was marked out for an hour.  I do not accept that this receipt was referring to the patronization of the ballroom by the defendants …

As to the evidence of DW1, she agreed that the ballroom was quite busy at that time and she was not the one who served the 4 defendants.  The 4 defendants were regular customers.  She was asked about the incident 3 or 3 days later.  I do not accept that under such circumstances she can tell the day and the time the 4 defendants went to the ballroom.”

9. Similarly, she was not impressed by DW2 :

“… Like Exhibit D2, there was no customer’s name printed on [Exhibit D4, the bill]  Again, the number of persons was incorrect.  It was printed ‘3/0’ ... Yet she insisted that 4 men (the 4 defendants) and a woman occupied the table.  She said that she had known them for a year and was going to waive the admission fee.  However, this explanation of the incorrect number of people is not acceptable.  I do not accept that this bill was referring to the patronization of the nightclub by the defendants …

As to the evidence of DW2 ... she was not one of the girls whose name appeared on the bill.  That means she was not the girl who served the customers at this table … She was only the one that took the bill to the table … She could not remember how busy the nightclub was on that day and how many bills she brought to the tables for settlement.  She was asked about the incident 2 or 3 days later.  I do not accept that under such circumstances she can correctly tell the day and the time the 4 defendants went to the nightclub.”

10. The same goes for DW3 :

“… [DW3] could recall this incident because there was some argument on the price of wine when the bill was served … Like Exhibit D2 and D4, there was no name of customers on Exhibit D5 [the bill].  Coincidentally, number of persons on the bill was incorrect.  It was 5 persons on the bill but DW3 insisted that the actual number was 4.  Again the explanation was that it did not matter what number was to be put on the bill.  This explanation is not acceptable.  I do not accept that this bill was referring to the patronization of the restaurant by the defendants.

As to the reliability of the evidence of DW3, on that day there were 60 to 70 customers … and he served over 20 bills … The 4 defendants were frequent customers.  He was asked about the incident 2 or 3 days later.  I do not accept that under such circumstances he can correctly tell the day and the time the 4 defendants went to the restaurant.”

11. And also for DW4 :

“… He was very busy at that time and was concentrating on his work inside the stall.  Under such circumstances, how could he say that when D2 and his friends appeared there was bright daylight?  He went on to say that later, he heard there was a quarrel in relation to a complaint of not refilling water from the adjacent stall.  He agreed that it was very noisy, so how could he hear the content of the quarrel?  His evidence was that he was asked to be a witness about a mouth after the quarrel.  There was no reason that he could remember clearly the day and time D2 and his friends came to the stall.  In fact, he agreed that as there were so many customers day in and day out, he was unable to recall the date and time of a particular incident.  Therefore I do not accept his evidence.”

12. In conclusion, the magistrate said :

“All in all, I do not accept the evidence of DW1 to DW4 in relation to the date and time of the 4 defendants appeared at their respective working place.  In another words, I do not accept the defence of alibi.”

The present appeal

13. The appellants have filed only one ground of appeal :

“The learned magistrate erred in law and/or on the facts in that she failed to properly evaluate the defence evidence, and specifically failed to demonstrate in her Statement of Findings how she approached the evidence on an extremely crucial aspect of the case, namely the credibility of the said defence witnesses vis-à-vis the defence raised: and in all the circumstances of the case the first conviction for ‘blackmail’ is therefore unsafe and unsatisfactory.”

14. In short, the appellants complain that all the magistrate did was give no weight to the evidence of the defence witnesses, which means that she had failed to deal with the issue of whether these witnesses were credible.  It is submitted that this omission is fatal because, the inherent differences between unreliability and incredibility aside, the mere number of defence witnesses put forward required careful consideration of whether they were acting in collusion and if not, whether any of them might be telling the truth.

15. In addition, it is complained that the magistrate had failed to take into account the following matters in the defence case : DW1 remembered the appellants’ patronage independently of the tape (Exhibit D3); she went to their table to chat for a very long time that night; the appellants had only visited her ballroom one or twice in the previous six months.  For DW2, it was because the appellants had come to dance “a bit earlier than usual” — that was why she remembered the occasion.  For DW3, it was because there was a dispute over the bill.

16. Having heard submissions, I am satisfied that there is nothing to this appeal.

17. In rejecting the evidence of each of the defence witnesses, the magistrate had provided us with convincing reasons, the most prominent of which was the incongruity between the CCTV tape and/or bills on the one hand, and the testimonies of DW1 to 3 on the other.  Putting it more bluntly, not only had those exhibits failed to achieve their purpose, i.e. to support the evidence of DW1 to 3, but they had quite positively destroyed what these witnesses said in the witness box, in a way that fully exposes the latter’s crude and artificial attempt to somehow come up with a story.  This is a consequence no detail of the kind quoted in paragraph 15 can salvage.

18. It follows that if the magistrate erred, she erred in being insufficiently specific, and not in failing to consider the issue of credibility.  She could not have been guilty of this omission given what negative findings she had in relation to the CCTV tape and bills.  In going a step further, that is, in considering whether the witnesses could have retained independent memories of the night in isolation, the magistrate was simply trying to be complete in her deliberation.  That is my judgment.

19. The same applies to DW4 whose evidence about over-hearing a mundane argument from next door strikes one as singularly unreal.  One should also remember that the evidence of PW2 was unchallenged.  Not only does this contradict DW4’s evidence, it also brings to the forefront the big question why PW2 should have mentioned money — unless the appellants had been demanding for some.

Judgment

20. The appeal is dismissed.