R. v. HAU SAI YIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.56 of 1996

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J U D G M E N T

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1. The Appellant was convicted of five charges : A - blackmail, B - theft, C - claiming to be a member of a triad society, D - theft and E - blackmail. He was sentenced to 18 months imprisonment on A, 9 months on B, 12 months on C and 9 months on D, all concurrent sentences. On E, he was sentenced to 12 months imprisonment, 6 months of which was consecutive and 6 months concurrent.

2. The case against the Appellant was this : on 10th October 1994 the Appellant approached a vegetable hawker PW1 in King Lam Estate, Kowloon. He asked PW1 for $1,000 "local bully" or protection fee claiming himself to be "Lo Fuk" which was a triad society. PW1 was told if he did not pay, he could not trade at that location. PW1 paid him $300. Two days later, on 12th October 1994, the Appellant together with the co-defendant approached PW1 again and he was paid the balance of $700 which was demanded earlier by the Appellant. The Appellant then instigated the co-defendant to ask PW1 for a "position fee" and told the latter he had to pay otherwise the latter could not hawk there. In a cautioned statement he made after his arrest, the Appellant admitted he had made the demand for $1,000 from PW1 and told the latter if he did not pay he would not be allowed to hawk. He admitted having received the money in two sums of $300 and $700 on two separate dates as a result of the demand. He also admitted that on the second occasion he went there, he was with the co-defendant and he told PW1 that in addition to the money he collected, the co-defendant also had to be paid. The Appellant also said in the statement that he had acted as mediator for another hawker in mediating a dispute with PW1 and on 10th October 1994 he had no money and he went to PW1 to get the money back.

3. The defence was that he had done something for PW1 earlier and the money was given to him for the help previously rendered by him to PW1.

4. The magistrate accepted the evidence of PW1 and he also found the cautioned statement voluntary. Relying on the evidence of PW1 and the admissions made by the Appellant, he convicted the Appellant of the five charges.

5. The Appellant appealed against convictions on the five charges and sentence.

6. The essence of the grounds of appeal against conviction are :

a. the magistrate attributed too much weight on the demeanour of PW1;

b. the magistrate failed to sufficiently consider the evidence of PW1, as to why he gave the money to the Appellant;

c. the magistrate wrongly concluded that PW1 was in fear of the Appellant when PW1 refused to say what the Appellant had said at the relevant time. The magistrate was wrong to take into account PW1's statement outside court;

d. the magistrate failed to evaluate the cautioned statement given by the Appellant;

e. the magistrate was wrong in admitting into evidence the cautioned statement which had not been proved to be voluntary; and

f. there was no evidence to support charge E.

7. The grounds of appeal against sentence are that the sentence of 18 months was too high a starting point since it was a small amount and it was an isolated incident. In making the order of partly consecutive and partly concurrent regarding the sentence on charge E, the magistrate had failed to consider the totality of events that had occurred within a matter of two days.

8. Although the magistrate was not entirely impressed with the evidence of PW1, after he had considered his demeanour which he was entitled to, he looked at the evidence of PW1 with care but he did not reject it. He accepted PW1's reluctance to answer questions regarding the Appellant was due to his fear of the Appellant. This was a view which the magistrate was entitled to come to after he heard and saw the witness. It cannot be said that he had unduly relied on his observation of the witness' demeanour. The notes of proceedings do not show that the magistrate was relying on the extra judicial statements of PW1. What he said in his statement of finding was that he found PW1 at times untruthful because PW1 still said he could not remember after he had refreshed his memory from his witness statement. This is not the same as saying he relied on the witness statement of PW1. The magistrate concluded that the criticisms that were levelled at the honesty of the taker of the cautioned statement was misplaced. He accepted the explanation of the statement taker regarding inconsistencies in the latter's evidence. Having taken into consideration his lack of care, the magistrate nevertheless found the statement taker to be an honest witness. This is not a finding against the weight of the evidence. The magistrate was aware of the rules relating to taking statements from persons in custody. These rules do not prevent the officer from asking the Appellant questions to clarify admissions made by the Appellant. There was no evidence that the officer decided at the end of the narrative part of the statement that there was sufficient evidence to charge the Appellant. In any case, this was not an issue pursued at the trial. If it were the Appellant's case that there was at that stage sufficient evidence to charge him, this had been ventilated. The magistrate had born in mind the case R. v. Chan Ching Man MA112/95 and found even if there were breaches of the rules, these did not affect his conclusion on the evidence that the statement was voluntary. He was entitled on that basis to find the statement voluntary and admit it in evidence. I see nothing improper in this regard.

9. The magistrate in his findings stated that he was satisfied that the Appellant had admitted all of the offences in his cautioned statement. He had resolved the differences between the statement and the evidence of PW1. The evidence support all the charges against the Appellant. The magistrate was entitled to look at all the evidence as a whole to conclude that the charges were made out beyond reasonable doubt. The convictions cannot be said to be wrong or unsafe and unsatisfactory. The appeal against conviction is dismissed.

10. As regards sentence, there are two separate demands - one made by the Appellant himself and one jointly with the co-defendant. These are separate offences of blackmail and a sentence of 18 months for the A charge of blackmail as a starting point in the circumstances of the present case is entirely proper, bearing in mind the record and age of the Appellant and triad background, even though there is no evidence of syndication. For the E charge of blackmail, 12 months imprisonment is not manifestly excessive taking into consideration the role played by the Appellant. The magistrate had taken into account that the Appellant was not the chief offender. However, without the Appellant, there could have been no blackmail bearing in mind it was the Appellant who instigated the co-defendant to do what was done. These being two separate offences, one following the other but of the same nature, the magistrate was entirely proper to order the sentence to run partly consecutively and partly concurrently to reflect the seriousness of the crimes. Totality of the sentences is not manifestly excessive. The appeal against sentence is also dismissed.