HKSAR v. LAU CHI YU AND ANOTHER

CACC 333/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.333 OF 2003

(ON APPEAL FROM DCCC NO.268 OF 2003)

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J U D G M E N T

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Hon Hartmann J (giving the judgment of the Court) :

1. On 25 July 2003, the first applicant was convicted of three offences after a trial in the District Court before Judge Wesley Wong. They were, first, claiming to be a member of a triad society, contrary to s.20(2) of the Society Ordinance, Cap.151; second, blackmail, contrary to s.23(1) and (3) of the Theft Ordinance, Cap.210 and, third, criminal intimidation, contrary to s.24(b)(1) and s.27 of the Crimes Ordinance, Cap.200. In respect of these three offences, the first applicant was sentenced to a total of one year and nine months' imprisonment. He seeks leave to appeal against his conviction only.

2. The second applicant, a co-accused, was herself convicted at the end of the trial of two offences; namely, blackmail and common assault. In respect of the offence of blackmail, the second applicant was sentenced to one year and six months' imprisonment. In respect of the offence of common assault, she was sentenced to three months' imprisonment. The judge ordered both sentences to be served concurrently. The second applicant seeks leave to appeal against the sentence imposed upon her in respect of the blackmail offence only.

3. The convictions of the first and second applicants arose out of a series of often violent confrontations that took place at various locations in Kowloon on the night of 1 February 2003 into the following day. The evidence led at trial revealed that the cause of these confrontations was the discovery by the first applicant that a woman named Tang Oi Yin, with whom he had been romantically involved, had, without his knowledge, commenced a romance with another man by the name of Mak Yiu Tong.

4. The first applicant demanded to meet Mr Mak. This meeting took place on the night of 1 February 2003 in a Wong Tai Sin restaurant. Mr Mak attended the meeting with two friends. The first applicant came to the meeting with Ms Tang. Matters became heated. Evidence was led that the first applicant claimed to be a member of the 14K triad society and summoned two supposed triad colleagues to join him at the restaurant. At some time thereafter fighting broke out and the police were called. By the time they arrived, however, the fighting had stopped. The only casualty was Ms Tang who had apparently cut her wrists with broken glass.

5. In the early hours of the following morning, Ms Tang went to the Queen Elizabeth Hospital and after she had been treated she met Mr Mak at another restaurant. The first applicant discovered this and another confrontation ensued. One of the several persons summoned to this confrontation was the second applicant. Fighting broke out again and in the course of the fracas the evidence revealed that the second applicant assaulted Ms Tang by pulling her hair so that she struck her head on a table.

6. For reasons that are not clear, members of the two factions then made their way to a third restaurant where they were joined by new arrivals. Fighting broke out again. It was at about this time, according to the evidence, that the first and second applicants committed the offence of blackmail. The first applicant, with the second applicant present, demanded that Mr Mak should pay him a sum of $15,000 by way of compensation. The sum was apparently calculated by reference to the purchase price of five mobile telephones. Mr Mak sent an associate to collect the money and it was paid to the first applicant who counted it and then handed it to the second applicant.

7. Later that day, that is, on the afternoon of 2 February 2003, a final confrontation took place. This was apparently in the apartment of Ms Tang. During that confrontation, evidence was led that the first applicant committed the offence of criminal intimidation when he demanded to meet with one of Ms Tang's relatives, threatening that if the meeting did not take place he would kill the relatives' family and burn down his shop.

8. There were four defendants at the trial. Of those defendants, only the first applicant chose to give evidence. The judge did not find him to be a truthful witness. The judge warned himself, however, that the fact that he did not accept the evidence of the first applicant did not relieve the prosecution of the burden of proving its case.

9. As is common in matters of this kind, the prosecution evidence consisted entirely of the testimony of eye witnesses who were not independent. The first applicant has complained that the evidence of these witnesses was 'trumped up'; this being evidenced by inconsistencies between their oral testimony and their witness statements. He has, in passing, submitted that two of the witness statements were very similarly worded : evidence of collusion. This issue, however, was raised at trial and the judge was aware of it.

10. The judge was satisfied that the prosecution witnesses were honest and credible and that they had told the truth. He acknowledged that there were, however, inconsistencies in their evidence. It is apparent from the face of the Reasons for Verdict that defence counsel had laid considerable emphasis on these inconsistencies. The judge was satisfied that such inconsistencies did not undermine the prosecution case. In this regard, he said :

" It is unlikely that each and every witness will come up in evidence without discrepancy. At the time when the events took place, they could not anticipate that they would have to give evidence in court in respect of those events. In fact, if they were to give the same answers, I would be very sceptical, cynical and doubt whether they were able to come up with the same answers. Witnesses can only give evidence to the best of their ability to recollect what happened and their memories could sometimes be different ..."

11. The first applicant, who has not been legally represented, has filed a lengthy summary of his grounds of appeal. In that summary he has complained that the judge was wrongly selective in the evidence which he chose to accept, giving no weight or insufficient weight to evidence which went to undermine the credibility of the prosecution witnesses. The first applicant had supported his written grounds of appeal with oral submissions. We are, however, satisfied that there is no substance in his complaints. It is to be noted that the judge considered each charge in turn, acquitting a number of the defendants of the charges faced by them.

12. Judges who must try matters of this kind - in which, as we have outlined, the evidence arises out of a series of emotionally charged confrontations - do not have an easy task. It is evident, however, that the judge did take into account the flaws in the evidence but was nevertheless satisfied beyond reasonable doubt that the evidence proved the charges of which the first applicant was convicted.

13. The first applicant has complained that the judge employed the wrong standard of proof in coming to his findings. There is no evidence of this.

14. The first applicant's application for leave to appeal against his conviction must therefore be dismissed.

15. We turn now to the 2nd applicant's application for leave to appeal against the sentence of one year and six months imposed upon her for the offence of blackmail.

16. On behalf of this applicant, Mr Mitchell-Heggs has pointed to the fact that she had never herself made a demand for money nor claimed any triad association. He has pointed to the fact that the judge accepted that she had acted out of 'blind loyalty'. It was submitted that her role was, therefore, a lesser one than that of the first applicant, a fact which the judge failed to recognise when he sentenced both the first and the second applicants to the same period of imprisonment.

17. It is true that the judge did not seek to differentiate between the roles of the first and the second applicants in the commission of the blackmail offence. This can only have been because he saw no differentiation in their culpability. In passing sentence, he spoke of the second applicant playing the role of a bully and the evidence, of course, demonstrated that, when money was obtained as a result of the demands made with menaces, that money was handed to the second applicant. There was evidence before the trial judge, therefore, that the second applicant played a role of equal culpability.

18. We are constrained to say that, in our view, although this offence of blackmail, may, on the findings of the judge, have been a 'one-off' incident and not in the category of demands made for protection money, the sentences imposed on the first and second applicants were lenient. As this court had said on another occasion in the case of HKSAR v. Chu Sin Chung CACC 111/99, blackmail is a serious and unpleasant crime. It is also a prevalent crime in Hong Kong that calls for a deterrent sentence. In our view, bearing in mind that this particular type of blackmail in which 'settlement' or 'compensation' sums are demanded is also prevalent in Hong Kong, the second applicant was fortunate indeed to receive the sentence she did.

19. Mr Mitchell-Heggs has pointed to the fact that the second applicant, who was pregnant when she was sentenced, is due to give birth in some three weeks time. He has asked this court, as an act of mercy, to order her early release so that the child may be born out of custody. However, the sentence, in our opinion, is lenient enough as it is. We are not prepared to accede to any such plea.

20. Accordingly, the second applicant's application for leave to appeal against her sentence is be dismissed.