R. v. CHAN FOOK MING AND ANOTHER

IN THE COURT OF APPEAL

1993, No. 82
(Criminal)

____________

_______________

J U D G M E N T

_______________

Hon Yang, CJ:

1. The two applicants were convicted by Deputy Judge To after trial of blackmail.

2. Having dismissed their applications for leave to appeal against conviction, we now give our reasons for so doing.

3. The first applicant (the second accused at the trial, hereinafter referred to as D2) was convicted of three charges of blackmail, namely, Charges 2, 3 and 4. The second applicant (the fourth accused at the trial, hereinafter referred to as D4) was convicted of Charges 3 and 4.

4. In a careful judgment, the learned trial judge set out the facts in detail and gave full reasons for his assessment of the witnesses. For the purpose of this application, we need only state briefly the essential facts.

CHARGE 4

5. The first series of events in time formed the subject matter of Charge 4, and these may be summarised as follows.

6. On the evening of 22 February 1992, the victim Mr CHAN Shek-kei ("S K Chan") received a telephone call from a person claiming to be Ah Ming, who suggested to meet him at the Ka Lung Kok Restaurant in Lai Kok Estate to discuss some decoration work at Mei Foo Sun Chuen. On the 24th S K Chan arrived at the restaurant as arranged. D2 introduced himself as Ah Ming's partner and took S K Chan to a table where D4 and another person were seated. Then followed a brief discussion about some decoration work to be done in Mainland China. In the course of the conversation, D2 suggested a card game called Sap Sam Cheung. The four men played, and S K Chan won. D4 then suggested a game of stud poker. S K Chan did not know how to play but, as the stake was small and he was hoping for business, he allowed himself to be persuaded to be D2's partner in the game.

7. After the game, a NGAN Kam-ming (the first accused at the trial, hereinafter referred to as D1) arrived. D2 and D4 and the other person told D1 that S K Chan had lost money. S K Chan said he had no money, and D1 said he had to pay. D1 and the other person took S K Chan to a cafe on the podium. D2 and D4 then left. It was shortly before 11:30 a.m.

8. What followed clearly indicated that S K Chan was intimidated by D1 and the other person. D1 said if S K Chan did not pay he could not leave; the other person said if S K Chan could not get the money, he would follow him the whole night.

9. After negotiations and a few telephone calls, S K Chan raised a sum of $10,000 and another sum of $5,000 as payments towards the demands for $10,000 and $20,000 respectively.

10. Eventually, D1 took away S K Chan's portable telephone and allowed him to leave. S K Chan then reported the matter to the police.

11. Coupled with S K Chan's evidence was a cautioned statement given by D2, admitting that he had cheated S K Chan during the game.

12. In finding the applicants guilty on the Charge, the trial judge noted that S K Chan could not leave without making payment, that he was outnumbered, that the accused were of strong build, that he was detained for four hours and his portable telephone was taken away from him.

13. The judge in his Reasons for Verdict said this: -

" While no express words of threat or violence had been applied, the demand was made with such subtle pressure under the above circumstances which I find as a fact amounted to menace. Fear is something that is best felt than described. I am satisfied that PW4 (S K Chan) was put in fear by reason of the demand in those circumstances."

14. He found that "the demand was a common enterprise between the four of them with the second and the fourth accused providing the setting so that the demand could be made".

15. It was argued on behalf of both D2 and D4 that they had left S K Chan at the cafe on the podium and that most of the behaviour that had given rise to the conclusion that the demand for money had been made with menaces came after the applicants had left the podium. It was also submitted that the judge had failed to consider properly the principles of joint enterprise. On behalf of D2 it was argued that he had only admitted to cheating.

16. In our judgment there is nothing in any of the Grounds of Appeal in respect of Charge 4.

17. It is necessary in a case such as this to examine all the facts to determine whether these together formed one continuous transaction. It is both artificial and unrealistic to draw an imaginary line between the facts prior to the departure of D2 and D4 from the podium and those that occurred afterwards. The judge was entitled to find that the accused acted in concert. He was also entitled to say that D2's conduct went beyond simply cheating at gambling. There is nothing in the judge's finding which could be criticised.

CHARGE 3

18. The trial judge found the following facts proved.

19. On 23 February 1992, one Mr NG Kwok-cheung ("Ng") received a telephone call from a person who claimed to be LAU Wai-ho, as a result of which he arrived at the Ka Lung Kok Restaurant at 1 p.m. on the 24th, and there he met D2, who said LAU Wai-ho would be ten minutes late. D2 took him to a table where he was introduced to D4 and a CHAN Wai-ming. They exchanged telephone numbers and talked about a project at Mei Foo Sun Chuen. In the course of the conversation, D2 suggested a card game as LAU Wai-ho had not arrived. Ng declined but D2 suggested that he should be D2's partner. Again Ng declined as he had no money and knew little about the game. Then the game started. At first D2 told Ng he had won and he would share his winnings with Ng. Ng said he would not take the share and he was not involved. Just before the second game, Ng said, "You gamble among yourselves. It has nothing to do with me". This time D2 said he had lost $16,000 and asked Ng to pay his share.

20. By this time Ng knew he had fallen into a trap and was frightened. He wanted to leave but dared not as he was outnumbered. The accused looked fierce and angry. D2 asked him how much he had and he said he did not have any money. D2 insisted that Ng should pay his share of the loss and suggested that he should obtain money from the automatic teller. Ng then went with D2 and D4 to the automatic teller and D2 withdrew $1,000 and paid it to D4, saying that the balance owing would be treated as a loan. Ng then withdrew $3,000 which was all he had and gave it to D4. D2 then used Ng's portable telephone to make a call, after which he told Ng that LAU Wai-ho was busy and would not come. D2 and D4 then left.

21. In his judgment the judge correctly identified the only issue to be determined, namely, whether the demand for money was unwarranted and with menace.

22. Here again as against D2, there was his cautioned statement admitting to cheating. The judge found that everything was part of the setting to coerce Ng into paying. Whilst there was no expressed threat of what would happen if Ng did not pay, Ng was frightened. He knew he had fallen into a trap set up by these three strangers who looked fierce and angry, and he felt he could not get away. As the judge observed, "These fears are best felt than described". Quite clearly, subtle pressure was applied to instil fear in Ng. The judge was entitled to conclude that there was an implicit threat that if Ng did not pay he would come to some harm.

23. In our judgment there is nothing in the applicants' complaint before us that the judge failed to properly direct himself on the issue of menace.

CHARGE 2

24. The last incident in time formed the subject matter of Charge 2 which concerns D2 only.

25. On 27 February 1992, a person who claimed to be CHAN Kwong telephoned the victim Mr TSE Ping-leung ("Tse") and arranged to meet him on the following day at the Ka Lung Kok Restaurant about a decoration job at Mei Foo Sun Chuen.

26. On the 28th Tse arrived at the restaurant sometime after 11 a.m. There he met D2. D2 told him that CHAN Kwong was busy. D2 took Tse to a table and introduced him to a certain LEE Keung, a man who was the third accused ("D3") at the trial and D4.

27. After some conversation, one of the accused's party suggested a game of cards whilst waiting for CHAN Kwong. Tse was asked if he knew how to play a game called Chor Tai D and he said yes, but he refused to play as his object was to talk about decoration work. D2 then suggested that Tse be his equal partner in the game. Again Tse refused, saying as the others knew each other they should play among themselves. The game then started without Tse's participation. Then the game changed to stud poker with high stakes, and the first accused at trial (D1) claimed to have won $220,000 from D2.

28. D2 asked Tse for $110,000 as he had shared the game with D2. Upon Tse's refusal to pay, as he had never agreed to play, D1 said: -

" I couldn't care less. You lost, you have to pay it. Anyway, who are you ? I am 14. If you don't pay, you cannot leave Shamshuipo. You had to pay the money right now. You now stand up and go and leave with me to get the money."

Tse, D1 and D3 then left the restaurant with D1's hand on Tse's shoulder. D1 then snatched Tse's handbag and searched it, after which D1 told Tse to withdraw all his money (totalling $17,000 odd) from his bank and give it to him. Whilst on the way to the bank D1 said to Tse in a fierce manner, "Don't make any fuss about it. You know you cannot avoid it. You have to pay the money". At the bank Tse withdrew $17,500 and gave it to D1 together with the $500 from his handbag.

29. D1 was still not satisfied and demanded that Tse should telephone his wife to deposit more money into D1's bank account. Some negotiations and telephone calls followed, during which time D1 said to Tse, "Hurry up and give the balance so that you can go back to your wife and comfort your wife. She must be very scared by now". First Tse's wife deposited $13,000 into D1's bank account, then another sum of $12,000. Then D1 let Tse go, saying, "You just lost a little money but you have your life back. We are instructed to do this by somebody".

30. Upon returning home Tse reported to the police.

31. The judge in giving reasons for his verdict found that there was ample evidence of implied threat in the conversations.

32. Referring to Tse as PW1 the judge said: -

" The demand was made by the first accused in the presence of the third accused who was there to render reinforcement and to keep watch on PW1 while the first accused was away. The second accused had also made the demand at the restaurant which was then followed up by the third and fourth accused. By offering to share the game with PW1 and by purportedly gambling, he was setting the scene for the demand to be made. Further, as against the second accused, his cautioned statement, Exhibit P-11, provided evidence that he was involved in a joint enterprise with the other accused. I am therefore satisfied that the second charge is proved beyond all reasonable doubt against the first, second and third accused."

33. The Grounds of Appeal here are very similar to that argued in respect of Charge 4, namely, that much of the behaviour complained of occurred in the absence of D2, that D2's cautioned statement admitted to cheating only and, lastly, that the judge had not properly directed himself on the issue of joint enterprise.

34. What we have said in regard to Grounds of Appeal for Charge 4 are equally applicable to Charge 2. There is nothing of substance in these Grounds of Appeal.

CONCLUSION

35. For the reasons given above, the applications for leave to appeal against convictions were refused.