CHAN YUK TUNG v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 274 OF 1986

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BETWEEN

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JUDGMENT

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1. The appellant who is now aged 15 appeals against his conviction at Kwun Tong Magistracy on the 8th January 1986 of a charge of blackmail and claiming to be a member of a Triad Society. A sentence of 18 months probation was imposed.

2. The particulars of the blackmail charge allege that the appellant on the 24th August 1985 outside Block 53, Shun Lee Temporary Housing Area, Kowloon, together with others not in custody, did with a view to gain for himself make an unwarranted demand of $360.00 from Lam Man Wai with menaces. In respect of the second charge, he claimed on the same day to be a member of the Fuk Yee Hing Triad Society.

3. The complainant Lam Man Wai was a school student aged 13. He said that on the 24th August 1985 he exchanged his video game machine with one in the possession of a person named Pak Ah Chun. Later that day at 7.0 p.m. the complainant was approached by Chan Hing Fai who said that someone suspected that the machine had been stolen. Chan took the machine away to make enquiries as to whether or not it had been purchased. About 5 minutes later Chan returned with Pak Ah Chun and about 4 or 5 other boys when a discussion took place about the machine to the effect that the complainant had stolen it from a person called "Black Boy" who was present amongst this group.

4. The group then went away except for Chan and Pak Ah Chun. A few minutes later "Black Boy" returned with 7 or 8 persons, some being from the original group. The complainant was confronted by the appellant who said "You better return machine to him." Prior to this incident, the complainant said that he did not know the appellant but that he had seen him once or twice passing by. The complainant refused to return the machine and his evidence appears at page 7 of the record where the appellant made a demand in the following terms :

"You may not return machine but you have to make compensation in money".  My mother asked 'How much'. The Defendant said $360. My mother said no compensation will be made. The Defendant asked where I belonged to I didn't know what he meant. Defendant said I belong to Fuk Yee Hing 'Now are you going to make compensation'.  My mother said 'No'.  He said You may not make compensation, but tell your son not to go out to have fun otherwise I'll beat him up whenever I see him. He asked me again if I was going to make compensation. I said 'No'. Then all the persons went away.

5. Later in his evidence on the same page, the complainant said "when my mother told not to let me out otherwise a beating I was scared. On 27/8/85 my mother complained to the District Board Member and the matter was referred to the Police." The complainant described the appellant to be about 6' away from him that his vision was not impeded and the lighting was normal. The appellant was arrested by the police on the 1st September 1985. At an identification parade held on the 17th October 1985 the appellant was identified by the complainant.

6. PW2 is the complainant's mother. She generally corroborated her son's evidence with regard to the incident and in particular that a demand of $360 was made by a person whom she described as the tallest boy. She also corroborated the evidence that the appellant claimed to be a member of the Fuk Yee Hing Triad Society. She was unable to identify the appellant at the identification parade that was held on the 17th October 1985.

7. The appellant gave evidence that on the 24th August 1985 he and some friends walked passed the house where the complainant was living, with several friends and he observed that an argument was taking place. He agreed he was about 6'-7' from the complainant, but denied that he spoke to him. He also denied being a member of the Fuk Yee Hing Triad Society. Essentially this case is one of fact.

8. Three grounds of appeal have been argued by Mrs. Barnes who appeared today on behalf of the appellant which were

9. I will deal with the third ground first. The appellant admitted he was present as I have said at the scene but that he was only present there as an onlooker. It is not disputed that he was only a matter of 6' or 7' away from the complainant and that the lighting conditions were quite sufficient to enable the complainant to make an identification.   As the identification of the appellant was based solely upon the evidence of the complainant the guidelines laid down in R. v. Turnbull must be observed. However, as Lord Widgery said in the case of R. v. Oakwell [1978] 1 All E. R. 1233, the identification problem that the Turnbull case is intended to deal with is the ghastly risk run in cases of fleeting encounters. However, this is not a fleeting glance case.  The evidence is that the complainant had seen the appellant previously once or twice and during the incident he was very close and was able to observe him for between 1 to 5 minutes. Indeed the appellant did not dispute this fact at the trial. Significant evidence was given by P.W.3 Detective Sergeant 12837 who arrested the appellant that the complainant had described the appellant to be of similar height and build, and in fact the learned magistrate in his Statement of Findings at P.22 said that both the complainant and the appellant were of similar height and build. Far from misdirecting himself on the guidelines laid down in the case of Turnbull, I am quite satisfied that the learned magistrate had them uppermost in his mind for he clearly considered the quality of the evidence of identification very carefully. He said "I find that the complainant could clearly see the defendant who was present at the time under the lamp at the door for a matter of between 1-5 minutes.  I find that at such a close distance he could clearly see that it was the defendant who uttered the series of sentences, I do not accept the defendant's denials". In my judgment I am quite satisfied that the quality of the evidence with regard to identification was good, and that there was no danger of convicting the wrong person. Ground 3 must therefore fail. In respect of the first ground, the learned magistrate upon the evidence was entitled to draw an inference that the gain was for the appellant or at the very least to be shared between himself and those others who were present. This ground must also fail. The second ground that the demand was not made from the complainant is contrary to the evidence given both by the complainant and the complainant's mother. The evidence is clear to the effect that the machine belonged to the complainant who was told to return the machine to "Black Boy". At p. 12 of the record, the complainant's mother testified that the person said if her son was not going to return the machine he should not go out or he would be beaten up. Again at p. 15 in cross-examination, the complainant's mother said that the words were said to her son. The learned magistrate in his findings said there was no evidence that the voice came out of a crowd of boys and disbelieved the appellant's denial. The magistrate found that the words alleged to have been uttered were said by the appellant. The essential ingredients of blackmail were established, whilst there was an admission by the appellant that he was a member of the Triad Society. I am quite satisfied upon the evidence adduced at the trial that the appellant was properly convicted of  both charges. The appeals against conviction are therefore dismissed.