HKSAR v. CHAN WING GO

CACC 390/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 390 OF 2014

(ON APPEAL FROM DCCC 660 OF 2014)

------------------------

------------------------

-------------------------------------

REASONS FOR JUDGMENT

-------------------------------------

Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.  The appellant was tried in the District Court before Deputy District Judge Mitchell (“the judge”).  He was charged with blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210.  The Particulars of Offence alleged that on a day unknown in mid-November 2013, near Hung Yuen Road, Hung Shui Kiu, Tin Shui Wai, the appellant made an unwarranted demand of $30,000 from X with menaces.  He was convicted of this charge on 5 November 2014 and on the same day he was sentenced to a period of 3 years’ imprisonment.

2.  The appellant subsequently applied for leave to appeal against both his conviction and sentence but later abandoned his application for leave to appeal his sentence.  On 9 July 2015 I granted the appellant leave to appeal his conviction.  At the hearing of his appeal we allowed the appeal, quashed the conviction and set aside the sentence.  We said we would hand down our reasons for doing so at a later date and this we now do.

The prosecution case

3.  The prosecution case depended entirely upon the evidence on the victim, who was referred to as “Mr X”. The judge noted in his Reasons for Verdict how the prosecutor put his position as regards Mr X:

“Should the court not believe his testimony or his account is incredible or unreliable the case against the defendant must fail. There is no other independent evidence which goes to support the case for the prosecution.”

4.  This appeal is solely about the evidence of Mr X, how that evidence changed under cross-examination and how the judge dealt with those changes.  Consequently, it is necessary to set out Mr X’s testimony in some detail.

5.  In his examination-in-chief Mr X described how in the period February-March 2013 he started selling beverages to construction site workers outside a construction site near Hung Yuen Road, Hung Shui Kiu in the New Territories.  This is the location that the charge particularised as the place where the appellant made his blackmail demand.

6.  From sometime in May 2013 he began selling lunch boxes and tea time snacks from a black van at the same location.  He was assisted by his wife in this enterprise and each day they together made approximately $500 profit from the lunch boxes and $300 – 400 profit from the snacks.

7.  Mr X said that in mid-November 2013 he was approached by the appellant, who was alone and who was riding a bicycle, whilst he, Mr X, was at the construction site.  The appellant was known by the name of Ah Go.  Mr X said that the appellant asked him who allowed him to sell at that location adding that this was his territory and “you have to pay protection fee in order to sell here otherwise you cannot sell here”. The appellant asked PW1 for $30,000 as “protection money”.

8.  When Mr X was asked what he understood was meant by “protection money”, he said:

“I understood it means that if I paid him the money, he would not cause trouble at that place, and I could go on selling stuff there”.

9.  Mr X was then asked what he thought would happen if he did not pay and he said:

“Definitely, some people would cause trouble to me, and I would not be allowed to sell there. That means I could not earn a living there.”

10.  Mr X described the appellant’s demeanour as being very fierce and that he was scared that if he did not pay and continued carrying on his business then the appellant would ask somebody to cause trouble to him and would probably damage his stuff.  

11.  Mr X told the appellant that he had no money and so the appellant gave him one week to pay.  The appellant gave him his mobile phone number and told Mr X to call him when he had raised the money. 

12.  Mr X raised the money by borrowing and by having recourse to his wife’s savings.  He then arranged to meet the appellant at the construction site where he handed over the money to him.  When receiving the $30,000 from Mr X the appellant told him not to tip off others otherwise “I would chop you to death and burn your house”. 

13.  Mr X said that when he started selling lunch boxes at the site he obtained the lunch boxes from a cooked food stall called Sun Kei operated by Fei Kan.  Subsequently he changed to another supplier and after he did so he had no other business dealings with Fei Kan.  The extent of his dealings with Fei Kan was the subject of questioning by Mr Oliver Davies who appeared for the appellant at trial and on appeal.  Mr Davies obtained from Mr X quite positive assertions that other than purchasing lunch boxes from Fei Kan over a two month period he, Mr X, had no other business dealings with Fei Kan.

14.  Mr X also gave evidence of three occasions, the first of which was 6 August 2013, when his van was damaged by masked men who broke the glass windows and damaged parts of the bodywork.  This evidence was not relied upon by the judge to inculpate the appellant but it had continuing relevance in providing a time-line reference point.  In respect of these incidents Mr X said that at the time his van was damaged no-one made any demand of him. 

15.  On this evidence the prosecution case was a very straightforward one.  It was simply that on a day in mid-November 2013 Mr X was approached by the appellant at the location he carried on business and the appellant made a blackmail demand of him for $30,000 which he, Mr X, paid to the appellant one week later at the same location.  Mr X said that prior to this, in the months of May to October 2013, he had not had any conversation with the appellant. 

16.  In the early part of his cross-examination Mr Davies was at pains to obtain Mr X’s positive confirmation that he had never had any contact with the appellant prior to the mid-November incident.  Mr X confirmed that he had not spoken to the appellant on the phone before this occasion and furthermore he had also never met him before.  He also confirmed that he had never paid the appellant money other than on this occasion. 

17.  The court then adjourned for the mid-morning break and when it resumed Mr X said that he had “something to add”.  He then recalled an occasion when he had met Fei Kan together with the appellant at the Tai Fat restaurant in Hung Shui Kiu before November 2013.  He said that the purpose of this meeting was because Fei Kan had said that he also wanted to sell lunch boxes at the site and Fei Kan had asked Mr X who was looking after the site and Mr X had told him that it was the appellant.  Mr X thus arranged the meeting and he said it took place before any of the attacks on his van, that is, before 6 August 2013.  He later said it was roughly March/April 2013.  This evidence was of course, inconsistent with his earlier assertion that he had no other dealings with Fei Kan other than the relatively short two month period of buying lunch boxes from him.  But, more importantly, this evidence was at odds with his testimony that he did not become aware of the appellant as the protector of this area until he was approached by him in mid-November.  Now he said he was aware of his position as early as March/April and in fact at that time had introduced him to Fei Kan as the protector to whom monies had to be paid in order to sell at the site.

18.  When asked about the November payment he said he did not pay anything else after that and left the court with the impression that only one payment had taken place.  In respect of this payment he maintained that it took place at the construction site in the absence of his wife.  In fact, Mr X claimed that on the occasion of this payment, the appellant asked him to go to the other side of the road before he spoke to him.

19.  Notwithstanding his evidence that he had introduced Fei Kan to the appellant at some time before 6 August 2013, Mr X continued to maintain that the first demand for money from the appellant was the November demand at the site where Mr X was operating his business.  Then he was asked by Mr Davies about a meeting with the appellant at a Tak Fuk restaurant in May 2013.  Mr X initially said in cross-examination that though he knew of this restaurant, he had never been there with the appellant.  Then, under questioning, he said he remembered an occasion in April/May 2013 when he asked a person he knew by the name of Wong Hung Fai to introduce him to the appellant and Mr X said that this meeting came about because he had been worried about his safety at the site and had asked Wong to arrange a meeting with someone who could watch over things.  Wong told Mr X that if he paid the appellant $30,000 he would be allowed to sell things at the site.

20.  The meeting with Wong and the appellant took place at the Tak Fuk restaurant.  At this meeting Wong suggested that Mr X pay a fee of $30,000 and the appellant agreed.  Mr X said he agreed to pay this money because he was scared that if he did not there would be trouble.  He said:

“A. ‘Ah Go’ said that once he received the sum of money from me, he guaranteed that no trouble would be caused to me. If there was any trouble at that place, I could contact him, and he would settle it.

Q. So it was not ‘Ah Go’ you were afraid of.

A. He said that if I didn’t pay, he would find somebody to cause trouble to me in due course, and would not allow me to sell there.”

21.  Mr X agreed that he had never mentioned the Tak Fuk restaurant meeting in his statements to the police.  He now claimed that the threat made by the appellant that if Mr X tipped off anyone about paying this money he would chop him to death and burn his house was in fact made at the Tak Fuk restaurant.  Mr X refused to put a date on this meeting saying that he could not remember the date.  He even said he was “not very sure” that it took place a long time before the November demand.

22.  If the Tak Fuk restaurant was the occasion when Mr X became aware of the appellant as the protector of this area then it must have pre-dated the Tai Fat restaurant meeting when Mr X introduced the appellant to Fei Kan.

23.  This change in Mr X’s testimony also meant that Mr X was now saying he first met the appellant sometime in April/May 2013 and had made a payment of $30,000 to him at that time.  Then, later, and before August 2013, he met with the appellant again in order to introduce Fei Kan to him. All of this was said to have occurred prior to the November payment which now became the second blackmail payment made by Mr X to the appellant.

24.  Mr Davies then cross-examined Mr X about the November blackmail demand that is the subject of the charge.  This was now referred to as the “second incident” as, on Mr X’s revised testimony, it was now apparent that it was the second occasion that he had made a payment of a protection fee to the appellant and the third occasion he had met with him.  He was asked why he told the police of only the November incident.  He explained:

“Previously, I dare not tell the police, as I was afraid that there would be something unfavourable caused to me. But after the second incident, as I had to give statements, I had to be confronted with the police. I therefore tell the incident in November.”

25.  When pressed on why he told the police what was, effectively, only half of his dealings with the appellant he said:

“Because if I said anything further, there would be something unfavourable caused to me. That means I tip off the others. I was very scared. I worried about my safety.”

26.  In respect of the November incident Mr X’s testimony again changed.  It was put to Mr X that the appellant was, in fact, only seeking a loan and had asked a mutual friend, So Yun Lam, to approach Mr X to ask for a loan on his behalf.  Mr X agreed that he had met Mr So and the appellant together at the Lo Yau Kee restaurant where he handed over $30,000 to Mr So who in turn handed it to the appellant.  Mr X also agreed that at this meeting the appellant had said he needed money to pay for renovations to his house but Mr X was positive that notwithstanding that the appellant needed the money for this purpose it was not paid as a loan but rather as an advance payment of the 2014 protection fee.  Mr X also agreed that he had not told the police of this arrangement, claiming that he was scared because of the warning given to him by the appellant about tipping off others and the consequences of him so doing.

27.  In summary, Mr X’s testimony under cross-examination was that he had asked a person whom he knew, Mr Wong Hung Fai, to introduce him to the protector of the site where he was operating his business.  That led to his first meeting with the appellant and the first payment to him of a $30,000 annual protection fee.  This meeting took place in April/May 2013 at the Tak Fuk restaurant.  After this meeting there was a second meeting with the appellant which Mr X initiated in order to introduce Fei Kan to the appellant as Fei Kan was also contemplating selling food in the same area.  This meeting took place at the Tai Fat restaurant before August 2013.  Then the third meeting between Mr X and the appellant took place in November 2013.  This was a meeting initiated by Mr So Yun Lam who was acting on behalf of the appellant and took place at the Lo Yau Kee restaurant.  At this meeting Mr X paid the appellant, through So, a second protection fee of $30,000 which he regarded as an advance payment of the 2014 annual fee.

28.  Inevitably this revised version of events by Mr X raised the question of the truthfulness of the account he gave in his examination-in-chief that the November payment took place when the appellant cycled up, alone, to Mr X’s place of business at the construction site and thereupon made the blackmail demand with which Mr X complied by paying the appellant a week later at the same location. 

29.  Mr Davies obtained agreement from Mr X that neither of the two sums of $30,000 which Mr X paid to the appellant were paid at the construction site location of Mr X’s business.  Both took place at the respective restaurants to which Mr X referred in his cross-examination. 

30.  In response to a direct question from the court Mr X agreed that, contrary to his evidence-in-chief, at no stage was $30,000 given to the appellant at the construction site. 

31.  There was also another meeting, a fourth meeting, with the appellant.  This took place in early 2014 with Fei Kan and appears to have taken place for the purpose of negotiating a sale by Mr X of his business to Fei Kan.  This part of Mr X’s testimony was only peripheral to the allegation underlying the charge and no more needs to be said about it other than it also allowed Mr Davies further material for attacking the credibility and reliability of Mr X.

32.  It is evident that the prosecutor was relying on Mr X presenting as a frightened victim of extortion who may have become confused as to events.  Although such an approach is understandable some credence had to be given to it by a re-examination that addressed the major contradictions in Mr X’s evidence and sought to resolve them by attempting to obtain from him a coherent account of what he now said was a complete and accurate version of his dealings with the appellant and an explanation of why he did not give that account to the police and to the court in his examination-in-chief. Unfortunately, in a case that cried out for the prosecutor to make full use of his right to re-examine that was not done.  The consequence of the prosecutor’s failure to do so was that the judge had to make what he could of Mr X’s evidence, with all the contradictions it contained, unassisted by any clarification that a thorough re-examination of Mr X might have provided.  Notwithstanding that no attempt was made to re-examine Mr X on the dramatic inconsistency between what he said in examination-in-chief and what he said in cross‑examination, prosecuting counsel in his closing address invited the judge to act on the account provided by Mr X in his examination-in-chief.  Without in any way analysing the contradictions between that version and the version given in cross‑examination the prosecutor contented himself with simply saying, somewhat boldly, that Mr X’s account of the November payment was essentially “unshaken”. 

The defence case

33.  The appellant did not give evidence but called one witness, So Yun Lam, the person who Mr X agreed had been present at the Lo Yau Kee restaurant and to whom he, Mr X, had given $30,000 as a second blackmail payment for the appellant.  Mr So said that he had been asked by the appellant to approach Mr X to obtain a loan so that the appellant could renovate his house and had agreed to stand as a guarantor for the loan notwithstanding that he had only known the appellant for over 2 years and had no idea what employment the appellant held, if any.  Mr So said that he agreed to act out of kindness and claimed that it was not uncommon for loans to be made unsupported by any documents. 

The Reasons for Verdict

34.  The judge had no difficulty in rejecting the evidence of So Yun Lam. He said that he found it inherently improbable that Mr So would take on the role of guarantor and incur the risk of default in respect of a undocumented loan when he, Mr So, would gain nothing from the arrangement.  He said he also found it inherently improbable that Mr X would agree to make a loan to a person whom even Mr So admitted Mr X did not trust and this was a loan in respect of which there was no fixed term for repayment and no interest charged.  He also said that it was inherently improbable that Mr X would come to trust Mr So within such a short period and accept him as a guarantor for a substantial loan.

35.  Finally the judge said there was no credible reason why the appellant sought the loan from Mr X and not from Mr So direct.  Mr X had said that he had to borrow money in order to pay the appellant in November and so for him to advance to the appellant an interest free unsecured loan for an indefinite period simply did not make sense.

36.  The judge concluded that Mr So had been put up to give this account and he rejected it.

37.  The judge then turned his mind to the evidence of Mr X.  He considered what he described as the contradictions and inconsistencies in the evidence given by Mr X to see whether or not those contradictions and inconsistencies so fundamentally undermined his evidence that he could not be considered a reliable witness.  The judge recognised that much of what Mr X had said in cross-examination was not mentioned by him in his examination-in-chief.  The judge commented:

“It is fair to say in cross examination PW1’s description of the circumstances and the occasions on which he came into contact with the defendant was considerably wider than described by him in chief.”

38.  But that did not prevent him from concluding that he could rely on the evidence of Mr X.  The judge accepted that the account by Mr X of circumstances in which he paid over the money to the appellant did differ from his evidence in chief and that Mr X had not disclosed certain details to the police.  But, he said that many of the claimed inconsistencies between his evidence in chief and cross-examination were not really inconsistencies as many of the matters that he had agreed to in cross-examination had not been canvassed with him in examination-in-chief.  When asked about them in cross-examination Mr X was not evasive although the judge accepted that Mr X was confused about dates. 

39.  The judge did not find Mr X to have the degree of sophistication that would be necessary to deliberately lie to the police or to the court.  He was satisfied that this was not a situation where a witness was confronted with other evidence and contradicted what he had earlier said in order to tailor his testimony to fit in with the other evidence.    

40.  Whilst accepting that Mr X was not a confident witness he did not think him to be an evasive or dishonest witness.  He concluded his Reasons for Verdict in the following way:

“68. I have given careful consideration to all the submissions made by Mr Davies on behalf of the defendant. In essence Mr Davies suggests PW1 was neither truthful nor reliable and that he was not telling the court the truth in an effort to hide something.

69. I have considered PW1’s evidence in the light of the submissions made by Mr Davies but having considered all his evidence (and the inconsistencies and contradictions such as they are) I found PW1 to be an honest witness and was doing his best to recount events doing so having to face the person across the court room who threatened him in such manner. The heart of the matter is the demand made in November 2013.

70. I found PW1’s account of that unwarranted demand made by the defendant with menaces with a view to gain to be reliable such that I can be sure the defendant is guilty of the charge and I convict him accordingly.”

41.  Within the Reasons for Verdict there is no set of findings of fact and nowhere does the judge clearly set out which version of Mr X’s testimony he accepted – whether the examination-in-chief version or the version advanced in cross-examination.  However, in view of the language employed by the judge in describing the November 2013 incident it would appear that he based his conviction of the appellant on the account given by Mr X in his examination-in-chief.  That is how both Mr Davies and Mr Wong for the respondent understand the Reasons for Verdict.

The grounds of appeal

42.  The grounds of appeal complain that the only evidence against the appellant came from Mr X whose evidence, it is asserted, was inconsistent and contradictory, especially in relation to:

(1) Mr X’s relationship with the appellant;

(2) The circumstances in which Mr X paid money to the appellant; and

(3) The dates and number of occasions Mr X paid money to the appellant.

43.  It is said the inconsistencies and contradictions in these areas of Mr X’s testimony were significant and material and the judge failed to address them thereby rendering the conviction of the appellant unsafe and unsatisfactory.

Discussion    

44.  The examination-in-chief of Mr X was very simple and straight forward.  It was that he began selling drinks and later food at the construction site from February/March 2013.  He had no contact with the appellant until November 2013 when the appellant approached him at the construction site and made the blackmail demand that is the subject of the charge.  A week later, after raising the money, Mr X handed it over to the appellant at the construction site.

45.  Initially, in cross-examination Mr X remained adamant that he had never met or spoken to the appellant before the approach by him in November 2013.  He was equally adamant that the appellant had never asked him for more money and that he, Mr X, had never paid the appellant more money. Then everything changed.

46.  Mr X’s revised testimony is that in May 2013 he himself initiated contact with the local protector through Wong Hung Fai in order to negotiate a protection fee.  A meeting took place at Tak Fuk restaurant on which occasion $30,000 was paid to the appellant as an annual fee.

47.  Then in November 2013 the appellant approached Mr X and told him he needed money for renovations and asked for an advance payment of the 2014 protection fee.  This meeting took place at the Lo Yau Kee restaurant in the presence of So Yun Lam through whom Mr X paid a second protection fee of $30,000.

48.  The only issue is whether the judge adequately dealt with this change of evidence by Mr X before concluding that Mr X was telling the truth, that he could rely on his evidence and that the accurate account of what happened in November 2013 is the account Mr X gave in his examination-in-chief.

49.  The starting point for addressing this issue is to recognise that the change in testimony of Mr X was more than just a series of minor contradictions and inconsistencies.  The changes went to the very heart of the allegations underlying the charge.  The two accounts of Mr X were in direct conflict with one another and could not be brushed aside as simply due to the confused mind of a frightened victim.  Nor can the evidence in cross-examination be said to be merely wider than that given in examination-in-chief or the inconsistencies between the two said to be simply attributable to the fact that Mr X was not asked about them in his examination-in-chief.   

50.  Once Mr X confirmed that no blackmail demand by the appellant, and no payment by Mr X in compliance with it, ever took place at the construction site as Mr X had affirmed in his examination-in-chief then it is difficult to see how that aspect of his evidence could be relied upon to found the conviction of Mr X.  Furthermore, it was such a departure from that which Mr X confirmed in cross-examination in fact happened it is difficult to see how it can be regarded as anything other than a deliberate fabrication.

51.  However, once the judge decided that it was the examination-in-chief version of events that he accepted as the truth it was incumbent on him to explain why he chose this version, which Mr X had clearly repudiated under cross-examination, and how he could conclude that Mr X was a reliable witness given that he had put forward such starkly conflicting versions of what happened.

52.  Unfortunately no such analysis is apparent in the judge’s Reasons for Verdict.  It is trite law that a District Judge’s Reasons for Verdict must properly evaluate the evidence of a key witness and address major anomalies or inconsistencies in it which impact on the witnesses’ credibility and reliability.  The comments of O’Connor J, in giving the judgment of the Court of Appeal in R v Lam Kam Ming & anor CACC 607/1979, unreported, 3 January 1980, have often been quoted by our courts and bear repeating.  He said:

“The reasons given should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the case. The judge or magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty.”

Such an analysis and evaluation was clearly needed in respect of Mr X but, regrettably, was not done.  In these circumstances the appeal must be allowed.

Conclusion

53.  For the reasons set out above we allowed the appeal, quashed the conviction and set aside the sentence.  Counsel for the respondent, quite properly, did not seek a retrial.  Mr Davies sought the costs of the trial and the appeal.  We awarded the appellant the costs of the appeal but refused him the costs of the trial.  The appellant chose not to testify in his defence but did seek to persuade the court by presenting a defence witness whom the judge clearly found, and in our view correctly so, as having been put forward to give false testimony.  In so doing the appellant brought suspicion upon himself and for this reason we refused him his costs of trial.