HKSAR v. YEUNG TIN WA AND ANOTHER

DCCC 293/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 293 OF 2014

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Reasons for Verdict

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1.  The 1st and 2nd defendants are jointly charged with theft and blackmail. They deny those charges.

2.  The charges arise out of an attempt to collect a debt apparently owed by the 1st prosecution witness to the 1st defendant on 20 August 2013. 

3.  It is apparent from the conduct of the case that the prosecution case relies entirely upon the evidence of the 1st prosecution witness.  There is no other source of incriminating evidence against either defendant.

4.  The defendants, through counsel, both say that PW1 is patently and obviously unreliable and his evidence should be disregarded by the court.

5.  The prosecution attempt to discharge both the burden and standard of proof required of them by the use of this witness’ evidence.

6.  I will say at this stage now that the prosecution have clearly failed to discharge that burden in respect of both the charges they bring against both defendants.  That will naturally lead to the acquittal of both defendants on the charges they face.

7.  I will now give further reasons.

8.  The background is as follows. 

9.  The 1st prosecution witness has known the 1st defendant for some 20 years.  They have been involved in investment transactions in the past.  The 1st prosecution witness is some form of unlicensed investment advisor.  Over a period of time, the 1st prosecution witness appears to have borrowed sums of money from the 1st defendant.  By April of 2013, there was a sum of some $2 million owed by the 1st prosecution witness to the 1st defendant.  There were subsequently written promises by the 1st prosecution witness to repay the 1st defendant.  It is sufficient to say that none of this money has ever been repaid to date.

10.  The charges relate to 20 August 2013, where the 1st prosecution witness says that he had met the 1st defendant at a place called ‘Grand Century Plaza’ in Mong Kok.  The 1st defendant was accompanied by the 2nd defendant and another gentleman in shorts called ‘Mr Lee’.  A meeting took place at Oliver’s Super Sandwiches.  The 1st prosecution witness was urged to repay the debt he owed the 1st defendant.  Eventually, this party went to the South Seas Plaza to see if the 1st prosecution witness could borrow money from a friend called ‘Mr Chung’.  This was unsuccessful.  Nevertheless, they adjourned to eat dinner at a restaurant close by.

11.  Later, they went to the 1st prosecution witness’ home.  At that location, three post-dated cheques were signed by the prosecution witness with the purport that they would extinguish the debt together with any interest earned.  This promise of future payment evidently satisfied the 1st defendant, the 2nd defendant and Mr Lee.  They all left.

12.  The 1st prosecution witness said that the obtaining of the cheques was accompanied by threats, particularly threats of violence, and also the 2nd defendant took some pens and Japanese currency from a drawer in the 1st prosecution witness’ home.

13.  That is the basis of the first charge.

14.  There is apparently no dispute that, should the 1st prosecution witness’ evidence be truthful and reliable, then it would be sufficient to establish the offence of theft and blackmail against the 1st and 2nd defendants.  That, of course, would be subject to the argument that the 1st and 2nd defendant may not, on the evidence, have been acting as part of a joint enterprise.

15.  Further specifics of the 1st prosecution witness’ evidence were that he and the 1st defendant had entered into a mining project in Australia.  Before the entry into that project, the 1st prosecution witness had owed the 1st defendant a sum of around HK$800,000.  Eventually, due to the 1st defendant’s investment in the project, that sum had arisen to some HK$2 million.  It was PW1’s understanding that this sum would be paid when he had earned the money, which he expected to come from the sale by him of another mining company to another participant. 

16.  Although PW1 at times conceded that he owed this $2 million to the 1st defendant, this was surrounded by caveats relating to matters that he related to this court at some length and with increasing vagueness.

17.  However, at times, he did concede that he did owe this sum to the 1st defendant.

18.  The 1st prosecution witness said he arranged to meet the 1st defendant because, apparently, he was going to deal with the 1st defendant’s brother-in-law to discuss emigration to Australia.  They agreed to meet at the Grand Century Plaza.  The 1st defendant arrived with the 2nd defendant and Mr Lee.  He said that they would not let him leave.  The 2nd defendant and Mr Lee forced him to sit and shouted at him.  They took his mobile phone to look for the names of people who could be called so that the 1st prosecution witness could borrow money from them.

19.  At some point, the 2nd defendant said he had several tens of brothers waiting downstairs and said if he did not pay money he would not be able to leave alive.  They were there for some time.  By about 6.30 to 7, they went to Mr Chung at the South Seas Plaza and, before that, the 1st prosecution witness said he had actually been physically assaulted by the 2nd defendant.

20.  At Mr Chung’s office, PW1 described the 1st defendant, 2nd defendant and Mr Lee to Mr Chung as his friends.  Mr Chung was obviously unconvinced he should lend money to the 1st prosecution witness, and the 1st prosecution witness was unable to borrow money from him.

21.  They went for dinner downstairs, the 1st prosecution witness remembering that he ate wanton noodles, apparently.  The 2nd defendant told PW1 he had brothers sitting nearby and some people came over and made further threats that payment should be made.  He said that they would kill his family in Australia and rape his wife. 

22.  Then it was said, at D2’s suggestion, they went to PW1’s home to see if there was anything valuable there.  They searched everything (that is, D2 and Mr Lee) whilst D1 stood around.  They found a locked drawer.  Mr Lee apparently threatened to set fire to newspapers that were strewn around the premises and burn the witness to death.  After PW1 had opened the door, the 2nd defendant snatched two pens and 30,000 Yen.  The 2nd defendant said that if the witness made a noise they would hit the hell out of him, and he was pushed. 

23.  Eventually, they saw the chequebooks and told the witness to draw cheques.  PW1 was of sufficient courage to say he would need three to four months to make payment.  After discussion, the 1st defendant agreed and said that the cheques should be made payable within two months.  Mr Lee went on to say the entire payment should be made within two months or he would kill his whole family. 

24.  Nevertheless, three cheques were drawn:  one to be paid in two days, another by 20 September and the third on 20 October.  The cheques were made out to the 1st defendant on the 1st prosecution witness’ insistence.  PW1 says he was forced to write the cheques.  He was told if he refused to cooperate he would be hit.  His shoulder was pressed down and he was told to write.  Mr Lee went on to say if the cheques were dishonoured he would kill his whole family, set fire to his flat in his home in Australia, burn his wife and son to death.  And, thus, taking the three cheques, which were subsequently to be dishonoured, they left.

25.  Naturally, as I have observed, the witness never honoured the cheques.  He said that after the first cheque was dishonoured he received further threats and by that time he had gone to China.  It was only on 26 August, after he returned to Hong Kong, that he made a report to police.

26.  PW1 was extensively cross-examined, especially about the financial relationship with the 1st defendant.  A series of documents evidencing the witness’ indebtedness to the 1st defendant was put to PW1.  The witness never questioned the bona fides of the documents put to him nor the sums of monies owned described in them, although he claimed there were other oral undertakings. 

27.  There was cross-examination about the Australian mining project, although this never appeared to achieve any substantive, clear or authoritative description of what was to be invested in by the 1st defendant and PW1.

28.  Naturally, one would assume a mining project involves some form of mining.  PW1 could not say with any detail where the mines would be, other than they were located in certain states in Australia; what they mined, other than an extensive list of minerals.  In fact, we were never really clear whether it was for exploration purposes or exploitation purposes, which is surprising, given that the projects were purportedly in existence at that time and also given the fact that the 1st defendant and the 1st prosecution witness actually went to Australia themselves to ostensibly look at the project. 

29.  PW1 said that they never went to see the physical mines in operation, as it was too far away.  This was an extraordinary proposition, given that the parties appear to be resident for most of the time in China and had gone to Australia specifically to do this.

30.  What became apparent from the 1st prosecution witness’ evidence was that the 1st defendant understandably had misgivings about this project.  We can see by Exhibit D11 that the 1st defendant served notice he would have no part in it. 

31.  This was followed by other documents sent to the 1st prosecution witness, such as D12 and D15, which attempted to crystallise the money by then owed by the 1st prosecution witness to the 1st defendant. 

32.  This was, however, not the final resolution of matters.  Further document, D16, came into existence, another ‘IOU’ where PW1 acknowledges that he has become liable for the 1st defendant’s third-party financing.  There was a further extension given (that is, Exhibit D17) on 27 June 2013, where the repayment period is limited to two weeks.

33.  In cross-examination, it was revealed that the 1st defendant had called PW1 on 10 August for repayment and also on 13 August. There were also calls by the 1st defendant on 17 August and 18 August, with an SMS message being sent.

34.  Cross-examination in relation to 20 August showed that D1 sent an SMS to PW1 (that is, D20), threatening legal action.  The 1st defendant also called PW1 at 10.04 am and 1.09 am.  Following this, the parties agreed to meet at Grand Century Plaza.  PW1 conceded in cross-examination this was a public place.  PW1 did say that D2 and Mr Lee had come to collect money from D1 and that he, PW1, had been brought in as he was PW1’s debtor. 

35.  In cross-examination, in respect of the visit to Mr Chung at South Seas Centre, PW1 conceded he had not mentioned this in his first witness statement on 26 August 2013 and also that the dinner in the restaurant downstairs had also been omitted from the statement.

36.  It also appeared from cross-examination that the 1st prosecution witness’ statements there were threats of rape, arson and the involvement of what were described as Hunan gangsters on 20 August were not supported by the contents of his witness statements.

37.  Insofar as there were deficiencies in his witness statement, particularly the one of 26 August, the witness blamed the police officer interviewing him for those deficiencies.

38.  It also appeared from cross-examination that after the statement on 26 August was made, the witness had gone to Australia.  At some point he decided to make a further statement to the one made on 26 August.  In evidence, he said that that first statement was not detailed enough.  He actually said he thought the record was not sufficient.

39.  Now, in addition to the live witness evidence of the 1st prosecution witness and his cross-examination, there was evidence of admitted facts, particularly a CCTV recording and the presence of fingerprints on items in PW1’s flat.  Given that the course of the evidence show that both the 1st defendant and 2nd defendant had admitted they were with the witness throughout the 20 August from the time that they met at Grand Century Plaza to the time that they left with the three cheques, this additional evidence added no probative matters to the evidence of PW1.

40.  As far as the defence case is concerned, neither defendant gave or called any evidence. 

41.  The 1st defendant, I note, had a clear record. 

42.  As a result of this, the prosecution case relied entirely upon the 1st prosecution witness’ veracity and reliability. Naturally, the prosecution are required to prove its case beyond reasonable doubt and bears the burden of proof at all times.

43.  Now, the resolution of the issues presented is as follows.

44.  It can be said that the 1st prosecution witness has maintained, since his first statement on 26 August, that he was compelled by threats to write out the three post-dated cheques and also that the pens and Japanese currency were taken, so there is that element of consistency in his evidence.

45.  However, the nature and authors of the threats have changed in the statements and oral testimony, and elements have been added over time.

46.  The first part of the cross-examination of PW1 by the 1st defendant related to their previous relationship and dealings, especially the manner in which PW1 had become indebted and the attempts by the 1st defendant to obtain payment prior to 20 August 2013.

47.  It is not easy to characterise the nature of PW1’s evidence on this topic.  I note that even in examination-in-chief, it took some time before PW1 was prepared to clarify what his occupation was and there was extensive questioning to establish that he did, in fact, owe the $2 million to the 1st defendant.  In fact, at the end of his evidence, PW1 still appeared to indicate that he did not necessarily accept the existence of the debt, despite the voluminous evidence to the contrary. 

48.  It is clear that I would characterise the 1st prosecution witness’ evidence in this area to be non-responsive.

49.  Now, it is in respect of the mining project in Australia from which the debt we were concerned with directly arose. 

50.  There was again difficulty in following PW1’s evidence as to what actually occurred.  It was clear that, as was pointed out by the 1st defendant, at the end of all the evidence in this area, we were still very much in the dark about key necessary features of the project.  As far as it was possible to glean anything, it would appear that the 1st prosecution witness was proposing some form of investment vehicle into mining activities in Australia and this would occur in both South and Western Australia, and the object of this enterprise was to sell this vehicle onto another entity.

51.  Having heard the 1st prosecution witness give evidence of this, I was somewhat suspicious as to the bona fides of the whole project.  The overall impression of PW1’s evidence on this topic:  that he was generally evasive as to the details of the project.  I will not characterise evidence in this area as being reliable at all.

52.  Finally, there are the events of 20 August 2013.  Now, again, one can say that PW1 has throughout alleged that the requests for repayment of the 2 million were accompanied by threats and, further, that the 2nd defendant took away the pens and Japanese currency. 

53.  I also note the defendant received an SMS indirectly threatening legal action at that morning.  So his evidence that he was meeting or he thought he was meeting the 1st defendant to discuss shopping or his brother-in-law’s emigration seems highly unlikely and fanciful.

54.  Secondly, cross-examination revealed that when he originally made the statement to the police on 26 August, no mention was made of going to Mr Chung’s office or the threats at the Foo Ming restaurant. The witness attributed this to the police officer taking the statement not taking this information down. 

55.  Having watched PW1 give that evidence, I found that to be clearly untrue.  This, of course, places further question marks over witness reliability.

56.  Whatever happened on 20 August 2013, it was not at that stage - that is, on 20 August - sufficient to warrant the 1st prosecution witness taking the matter to the police. 

57.  One is in the area of conjecture, but what appears to have prompted the 1st prosecution witness were certain telephone calls received by him when he was away in Mainland China.  Although, of course, inadmissible in this trial, the evidence was given by the witness, but it would appear his understanding was that that was an elevated threat in existence. 

58.  It is following this that he returns to Hong Kong to make the statement to the police on 26 August and I also note that the specific threats attributed to the phone call had in his testimony become part of the alleged threats made to him on 20 August 2013, this being the first time it was said by him that those threats had been attributed on that day to a person in his company.

59.  My conclusion from this is that the 1st prosecution witness’ testimony is subject to aggrandisement over time or, more clearly, it can be put, he is prone to exaggeration. 

60.  Where a witness does this, it makes it difficult for the court to place any reliance on what he says happened.  It creates difficulties in gleaning what the actual truth is.  In a case such as this, who says what and the threats uttered are, in respect of the blackmail particularly, the kernel of the whole case.  If one cannot be sure who made which threats and when, the case cannot be proved to a criminal standard. 

61.  I found that the 1st prosecution witness’ evidence taken overall effectively failed the standard of proof in a criminal trial, where a court has to be certain so that it is sure.  A court could perhaps make provisional conclusions that something may have happened of a threatening nature, but that is not sufficient to reach a definitive conclusion, an evidentially valid conclusion.

62.  For my part, I even conclude that the evidence of PW1 could not discharge a civil standard in relation to this matter, certainly not a criminal standard.

63.  For the purposes of this trial, I have to indicate that I can place no reliance upon the evidence of the 1st prosecution witness and, therefore, the charges fail, as his is the only evidence against the 1st and 2nd defendant.

64.  I will formally enter verdicts of not guilty on the first and second charges against the 1st and 2nd defendants.