R. v. TSANG KAM CHEUNG

IN THE COURT OF APPEAL

1996, No 127
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This applicant is a man in his early 30's. He faced two charges. Both were of blackmail. And both named the same man as the victim. We will refer to that man as "the victim".

2. On March 6 last year and then again two days later on the 8th, the applicant and three other men went to the victim's office in Central. On the first occasion, they asked him for $3.8 million. He did not give it to them. And on the second occasion, they again asked him for that amount. He did not give it to them on that occasion either.

3. The prosecution's case was that the demands were unwarranted and were made with menaces. Hence the two charges of blackmail.

4. That case was supported by the victim's testimony, which was along these lines. Arising out of a land venture in Shenzen which went sour, he found himself facing a demand by one of his erstwhile joint venture partners for $3.8 million, which demand he disputed.

5. On the first occasion, the applicant, an admitted debt-collector acting for reward throughout, brushed aside his attempt to explain that he was not indebted to the applicant's client. The applicant then told him not to play games; and said that he would collect the money, that he knew where he lived, that he also knew where his family lived, and that he would give him trouble if he did not pay.

6. Things went much the same way on the second occasion.

7. We pause here to observe that the four men were obviously acting together so that it does not matter which of them did the talking.

8. The applicant's testimony was diametrically opposite to that of the victim. It was to the effect that on each occasion nothing more was involved than a request for payment made in a calm, business-like atmosphere free from any threat.

9. Having seen and heard the witnesses, the judge accepted the victim's testimony, rejected the applicant's testimony, was satisfied beyond reasonable doubt that each charge of blackmail had been made out and, on January 26 this year, convicted the applicant on both charges.

10. The applicant now seeks leave to appeal against conviction.

11. There may have been a genuine claim against the victim by the applicant's customer. It is not for us to pronounce on the possible civil rights of any of these persons. Equally, it must be said that there is nothing inherently unlawful in attempting to collect a debt as a professional debt-collector. It all depends on what was actually done in the course of the attempt.

12. Here, the judge found that, acting in concert with three other men, the applicant went further than the law permitted and indeed went so far as to commit blackmail on each of the occasions in question.

13. On the evidence, it was open to the judge to make that finding if he was sure, as he was, that the truth came from the victim and not from the applicant. On that question, the judge had the advantage, which this appellate court does not have, of having seen and heard the witnesses and of having received their testimony at first-hand. We, without that advantage, find in this case nothing which would entitle us to upset the decision of the trial judge who had that advantage.

14. In those circumstances, the application for leave to appeal against conviction must be - and is - dismissed.