THE QUEEN v. MAK WING HIN

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JUDGMENT

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P. Chan, J. (Giving the Judgment of the Court):

1. The applicant was convicted after trial of blackmail. He was sentenced to three years imprisonment. He now seeks leave to appeal against conviction.

2. The victim was a part owner of a restaurant in Yuen Long. On 10th November 1995, he went to gamble in a Macau casino and lost. He then borrowed $60,000 from a loan shark by the name of Ah Wai. The repayment terms were not only onerous as the judge described, but also extortionate in that interest seemed to be chargeable at the whim of the loan shark. For the loan, the victim had to repay $66,000 on the same day and $70,000 on the next day. The victim lost what he had borrowed. He was escorted by two men back to Hong Kong, who confirmed his personal particulars and then left.

3. After the third day, the debt somehow had grown to $84,000. A further sum of $4,000 was demanded as interest for compensation which meant that the loan shark wanted the wages for the two escorts. The victim paid a cheque of $88,000 into a designated account. On the following day, he was told that it should be in cash and that was done.

4. In the evening of 2nd December and early morning of 3rd December, three men came to the victim's restaurant. According to the victim, they were the applicant, the 2nd defendant in this case and another person. They demanded $175,000. Upon talking to Ah Wai on the phone, the victim was told that there was an extra day of interest which was chargeable because of the delay in paying cash. The amount then came to $150,000. $25,000 was added as wages for the three men for the trouble for coming to Hong Kong to collect the debt. According to the victim, the three persons spoke in loud voices and the applicant said this:

"I am of 14 Yuen Long. If I don't see the money on Friday, you will not be able to run your business any more. I will smash your place."

This was understood to be a reference to a triad society. The victim was also ordered to sit down and was finally forced to sign an IOU saying that the repayment of the debt would be on that Friday. Because of the scene created in the restaurant, the staff in the restaurant informed the police. Unfortunately, when the police arrived, the three men had already gone.

5. On 9th December, following some initial contacts, the applicant and the 2nd defendant came to the restaurant. They were arrested by the police who ambushed there.

6. The applicant gave evidence. He said that on 2nd December, he was invited by the 2nd defendant and another person to go to the victim's restaurant. It was the 2nd defendant who left to go to another table for five minutes and returned. He said he did nothing of the sort described by the victim, he did not know Ah Wai, he did not know anything about the gambling debts in Macau, he did not know the victim. He said further that on 9th December, he was again asked by the 2nd defendant to go to the restaurant. He was told by the 2nd defendant that the 2nd defendant went there to collect a commercial debt.

7. In passing, it should be mentioned that the 2nd defendant also gave evidence. He confirmed that he went there to collect a "genuine" debt. He admitted having used abusive language and demanded $40,000.

8. The judge having heard the evidence from all the witnesses found that the victim was an honest and reliable witness although he was not accurate in some minor details. The learned judge reminded himself of the discrepancies in the victim's evidence, but considered them to be immaterial. He also rejected the applicant's evidence. The judge said that although the victim admitted that he was not afraid when the threat was uttered, he adopted, correctly in our view, the objective test and found the charge proved.

9. The applicant relied on various grounds. Basically he maintained his innocence. In his written submission, he admitted going there twice, but said he had no contact with the victim nor this "Ah Wai" the loan shark. He knew nothing about the transactions and also pointed out that there had been "contradictions and big differences" between the evidence of the witness in court and what was contained in his statement.

10. In our view, the learned trial judge had fairly considered the prosecution's case and the defendant's case. He had correctly assessed the evidence and there are good grounds to accept the victim's evidence and reject the applicant's evidence. The trial judge had applied the correct test with regard to the charge. We see no merits in this application. It must be refused.