HKSAR v. CHOI MAN

(English Translation)

CACC 428/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

HIGH COURT CRIMINAL APPEAL NO. 428 OF 1997

(ON APPEAL FROM DCCC NO. 113 OF 1997)

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JUDGMENT

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Hon Chan CJHC (giving the judgment of the Court):

1. The applicant was convicted of one count of blackmail after trial by Deputy Judge Lin in the District Court and was sentenced to two years’ imprisonment.  He now applies for leave to appeal against the conviction.

2. The prosecution’s case is as follows: On 8 November 1996, PWI Lam Man Yam and two friends of his became acquainted with another defendant of this case Iu King Yuen, and they talked about business matters involving the importation of labour.  On 10 November, they came to know the applicant through the introduction of Iu King Yuen, and they later went on a business trip to the mainland together.  Whilst in the mainland, Mr. Lam allegedly lost 3.12 million dollars in card games. He said he was forced to write a note to instruct his family members to deliver $800,000 to him.  He was even detained in Dongguan.  On 12November, Mr. Lam’s son (PW4) was notified by a friend and PW3 (another friend who had gone on the business trip to the mainland together with Mr. Lam) to go to the Mei Foo MTR station to meet the applicant.  PW4 was also told that he was required to pay $800,000.  At the Mei Foo MTR station, PW4 met the applicant, the first defendant in the present case, and another friend who had gone on the business trip to the mainland together with Mr. Lam (PW2).  Then they went to a podium in Mei Foo where they sat down to have a talk.  The applicant explained to PW4 how Mr. Lam came to lose heavily in gambling in the mainland, but an agreement was reached whereby he only had to pay $800,000 to settle the debt.  The applicant also produced a note in Mr. Lam’s handwriting and asked PW4 to pay the said sum.  After seeing the note, PW4 requested to talk to his father Mr. Lam over the phone.  The applicant managed to get hold of Mr. Lam on the phone, and PW4 had a telephone conversation with his father.  Mr. Lam instructed PW4 to give the applicant $800,000, but he must require the applicant to provide his ID card number.  During the conversation, Mr. Lam spoke to PW4 in Putonghua instead of the Putian dialect that they used to speak.  PW4 asked Mr. Lam over the phone why he did not speak the Putian dialect but Mr. Lam did not answer.  PW4 therefore began to suspect that his father was in jeopardy.  The telephone conversation lasted about two minutes.  After that, PW4 asked the applicant to provide his ID card number but the applicant refused, saying he only agreed to issue a receipt.

3. During the course of the incident, PW4 had asked the applicant, “You probably have children in your home, why do you subject my father to such sufferings?”  The applicant said to PW4, “We are in an illicit business, but the illicit act will not be repeated.” The applicant further said to PW4, “You are an educated person, you should be sensible enough to know very well how the people up there will treat him if you do not pay.”  PW4 understood this to mean that, unless he acceded to the applicant’s request by giving him $800,000, his father might be in danger in the mainland.  PW4 therefore agreed to pay, and arrangements were made for the sum to be withdrawn from a bank in Central.  However, the applicant and another co-defendant were arrested at the bank by the police as PW4’s friend had informed the police earlier on.  Eventually, Mr. Lam was released in Dongguan on 17 November.

4. The applicant elected to give evidence at trial.  He admitted that he had taken a business trip to the mainland together with Mr. Lam, PW2 and PW3. At a social function, he felt tired after consuming some alcohol, so he returned to his hotel room to have a rest.  He neither knew about nor participated in any card game session that evening.  The next day Mr. Lam told him that he had lost over three million dollars in gambling and asked him to bring a note and an ATM card to PW3 in Hong Kong.  After he returned to Hong Kong, the applicant met PW2 at the Mei Foo MTR Station on the morning of 12 November. PW2 took the ATM card but refused to accept the note.  The applicant then prepared to return to the mainland, but after receiving a phone call from Mr.Lam, he returned to the Mei Foo MTR Station to meet PW4.  At the request of PW4, the applicant prepared to accompany him when he delivered cash to the mainland.  The applicant said he had not asked PW4 to give him $800,000, still less uttered any threatening words.  Throughout the incident, his only motive was to help Mr. Lam as a friend by delivering the note to Hong Kong and contacting his friends and family members; in other words, he just helped rescue Mr. Lam.  He also wished to get a commission upon striking a business deal.  Under cross-examination, the applicant said that he did not know Mr. Lam was being held in the mainland and that he only knew Mr. Lam had lost money and freedom of movement.

5. After carefully evaluating all the evidence, the trial judge accepted the evidence of the prosecution witnesses and found the applicant guilty of blackmail.

6. Mr. Yeung, counsel for the applicant, has advanced six grounds of appeal against the conviction.

7. The first ground of appeal complains that the trial judge seriously erred in law by completely failing to direct himself on the issue of mens rea. The judge, it is said, had forgotten that the only mens rea that could constitute the offence of blackmail was “with a view to gain for himself or another or with intent to cause loss to another”.

8. In his Reasons for Verdict, the judge first quoted section 23(1) of the Theft Ordinance (Cap. 210, Laws of Hong Kong) which defines the offence of blackmail, and then set out the various elements of the offence, all of which, the judge said, had to be proved by the prosecution beyond reasonable doubt.  According to the definition of blackmail under section 23(1) of the Theft Ordinance, the prosecution must prove that the defendant made a demand, that the demand was unwarranted and made with menaces, and that the defendant made the demand with a view to gain for himself or another or with intent to cause loss to another. We are satisfied that the judge only has to give a brief account, as opposed to a detailed explanation, of the various elements of the offence in his Reasons for Verdict.  The judge in the present case had carefully considered the various elements of blackmail and could not be said to have overlooked any element of the offence.  A judge does not have to analyze whether it is actus reus or mens rea in respect of each element, because a judgment, not being a legal treatise, need not set out and examine every single point.  Furthermore, the judge is a legal professional. He only has to adjudicate on the main issues of the case.  The fact that he makes no mention of an issue does not necessarily mean that he has overlooked it.  The crucial thing is he must apply all the relevant elements as set out in the statutory definition of blackmail to the facts of the case in making his decisions.  Viewing the Reasons for Verdict as a whole, we do not think that the judge had missed out any important legal consideration in respect of the major issues in dispute.

9. Counsel submits that, as the judge had overlooked the relevant element of the offence, he had erroneously disregarded certain issues of fact as being irrelevant to the case.  Counsel also cites two examples in an attempt to illustrate that the judge accepted without hesitation all the opinion evidence of PW4. The first example is, regarding PW4’s statement during cross-examination that he understood “illicit business” to mean “mainly involved in intimidation and extortion”, the judge failed to direct himself that it was only PW4’s own view and could not be regarded as the truth.  The second example is, regarding the phrase “his father’s life is in danger”, PW4 said he understood it to mean that his father might “lose his life”. Counsel submits that it was merely PW4’s own view and that the judge failed to take into account that loss of freedom was not the same as loss of life.  With respect, we fail to see any substantial connection between the two examples cited by counsel and his assertion that the trial judge had failed to direct himself on mens rea.  The meaning of “illicit business” as given by PW4 was plainly his own interpretation.  He was certainly concerned about his father’s safety, and so it was perfectly understandable for him to infer that his father’s life might be in danger.  The judge, being a legal professional, would definitely not have been influenced by PW4’s personal views or inferences; rather, he would only have guided himself with common sense.  Counsel also failed to point out how the findings of fact would have been affected by the personal understanding of the witness.  There is nothing in the Reasons for Verdict which suggests that the judge “accepted completely and without hesitation” PW4’s personal views and inferences.  The crucial issue in the present case is whether the applicant had uttered or used any words which amounted to menaces.  To an ordinary person, “illicit business” means shady business; that PW4 interpreted the term to mean “mainly involved in intimidation and extortion” was a sheer matter of degree.  And whether it was his father’s liberty or life which was at stake was simply irrelevant to the issue that the judge had to determine.  When his father failed to return to Hong Kong, PW4 suspected that he had lost his liberty and that his life would be in danger if the sum of $800,000 was not paid. The judge accepted PW4’s evidence and ruled that the applicant did utter the words which the judge eventually held to be menaces.  We see nothing improper here and the first ground of appeal must therefore fail.

10. The second ground of appeal contends that the trial judge’s direction on the onus and standard of proof was substantially flawed.  Counsel for the applicant submits that the trial judge had misunderstood the element of “unwarranted demand”; that he had failed to differentiate between legal burden and evidential burden and simply imposed all burdens of proof on the defendant; and that, in page 4 at H-J of the Reasons for Verdict, the judge had erroneously raised the evidential standard of proof that the applicant was required to meet.

11. With regard to “unwarranted demand”, section 23(1) of the Theft Ordinance further provides that:

12. “…… unless the person making it does so in the belief —

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand.”

13. In his Reasons for Verdict, the judge construed the provision as follows:

“Unless the accused can prove that such a demand falls within the ambit of [section] 23(1)(b).  In other words, once the prosecution proves that the demand is made with menaces, the demand is unwarranted.  To rebut this, the accused has to prove it is more probable that it is not so.”

14. Here the judge was in fact merely repeating the relevant provisions of the Ordinance. However, judging from the last sentence of the above quote, the judge appeared to take the view that the person making the demand must prove that his demand was not made by unwarranted means.

15. Having considered the wording of the Ordinance and the spirit of the law, we find that the last sentence of the above quote is open to question.  Section 23(1) provides that if a demand is made with menaces, it is unwarranted.  However, if the person making the demand genuinely believes that he has reasonable grounds for making it and that the use of the menaces is a proper means of reinforcing it, the judge should take this into account before deciding whether that person is guilty of blackmail.  The prosecution is under a duty to prove beyond reasonable doubt that the person making the demand does not believe that he has reasonable grounds for making it or that the use of menaces is a proper means of reinforcing it.  The person making the demand does not have to prove that he holds such a belief.  If the judge directs that the person making the demand bears the burden of proving that it is more probable than not that he holds such a belief, then this is a misdirection (see Griew on Theft, p.229, 14-23; and Archbold (1998 Edn) p.1714, 21-266).  Nevertheless, as counsel for the prosecution has pointed out, PW4 said that, apart from producing the note by PW4’s father and asking PW4 to hand over $800,000 to him, the applicant had uttered these words: “We are in an illicit business, but the illicit act will not be repeated” and “… if you do not pay, you should know very well what the people up there will do.”  However, the applicant had in his testimony denied having ever uttered those words.  It follows that the issue to be decided was whether the prosecution had proved beyond reasonable doubt that the applicant had uttered those words.  If he had, then the demand made by him was unwarranted, and there would be no need for the trial judge to consider whether the applicant believed that he had reasonable grounds for making the demand or believed that the use of menaces was a proper means of reinforcing the demand.  Given the trial judge was satisfied that the applicant had uttered the words in question, the misdirection in a certain legal aspect would not have created any material effect.

16. Counsel for the applicant submits that the prosecution had no evidence to prove that the words uttered by the applicant had heightened PW4’s fear, because PW4 had been concerned about his father’s safety even before he met the applicant.  Therefore, counsel argues, the words uttered by the applicant did not constitute menaces.  With respect, we do not agree.  The question was whether the demand for payment made by the applicant to PW4 was unwarranted and made with menaces.  In the circumstances of this case, the fact that the judge was satisfied beyond reasonable doubt that the applicant had indeed uttered those words clearly indicates that the demand was accompanied by menaces and therefore unwarranted.  Any reasonable person would no doubt have felt the same upon hearing the words uttered by the applicant.  PW4, who was already worried about his father’s safety, would certainly become even more concerned when the applicant uttered those words, and this explains why arrangements for the payment were made.  Therefore, it cannot be said that the demand made by the applicant did not constitute menaces.  The second ground of appeal falls away.

17. In the third ground of appeal it is contended that, in relation to the demand made by the applicant, the trial judge was wrong in concluding that “in the absence of other evidence, the only possibility was to gain for himself.”  (transcript, page 8 at M).  Counsel for the applicant submits that this was a “specific intent” and the prosecution must prove that the applicant did intend to gain for himself, and since the prosecutor had failed to do so, the inference drawn by the judge was wrong.  In our judgment, it is clear from the evidence that the applicant did ask PW4 to give him $800,000, in other words, the applicant wanted to collect this sum of money.  It is immaterial whether the applicant would then pass the money on to the people in the mainland or how the money would be distributed.  The crucial point is PW4 was actually made liable for and required to pay this sum of money and incurred loss as a result.  The third ground of appeal must fail.

18. The fourth and fifth grounds of appeal are directed at the evidence given by PW4 and the applicant at trial.  Counsel for the applicant submits that the trial judge had adopted an incorrect procedure in determining the credibility of the prosecution witnesses.  Counsel points out that the judge indicated that he could believe PW4 even before he had heard all the evidence from both sides, and that, although there were discrepancies in PW4’s evidence, the judge considered that it had no bearing whatsoever on the credibility of the witness.  Counsel further submits that PW4, being a university student and hence an educated person, did not make any allegations of blackmail in the first three statements he gave to the police and made such allegations only in the fourth statement.  Furthermore, the judge accepted PW4’s demeanour in giving evidence but considered that there were discrepancies in the applicant’s evidence, for example, the judge noted that the applicant “kept a distance from the matter and returned to Hong Kong on his own” and equated confinement with loss of freedom of movement.  Counsel contends that the judge had seriously misunderstood the facts and had unfairly regarded the applicant’s lawful exercise of his right of silence as incomprehensible.

19. In the course of trial, the judge had had the opportunity to observe the demeanour of the witnesses and consider PW4’s state of mind after the incident.  In considering the evidence of individual witnesses, the judge had also taken into account all the evidence including the testimony of other witnesses as well as the credibility and reasonableness of their evidence.  The trial judge was in a better position than the appellate court in assessing the evidence of the witnesses.

20. The applicant had never denied that he met PW4 through arrangements, and then gave PW1’s note and credit card to PW4 and related the incident to him.  These are all undisputed facts.  The applicant’s defence was that he delivered the items to PW4 upon PW1’s instruction only.  This was of course in conflict with the evidence of PW1 and PW4.  After careful consideration and analysis, the judge concluded that he believed the evidence of the prosecution witnesses.  He also appreciated why PW4 did not give a detailed account of the incident to the police.  The judge considered PW4’s evidence credible and was satisfied beyond reasonable doubt that the applicant did make an unwarranted demand to PW4 with menaces in the manner described in PW4’s evidence.  The judge found that PW4 would also understand those words to mean menaces, and hence the applicant had made the demand with a view to gain for himself or cause loss to the witness.  The judge also held that the fact that the applicant uttered those words under the given circumstances showed that he would never believe that he had reasonable grounds for making the demand or believe that those words were a proper means to reinforce the demand.  The applicant’s defence was apparently rejected by the judge, and the judge had valid reasons for disbelieving the applicant’s evidence.  We are satisfied that the judge’s verdict was correct.  The fourth and fifth grounds of appeal must also fail.

21. The sixth ground of appeal, which is contained in the written grounds of appeal prepared by counsel, complains that, by asking questions, making comments and interrupting for more than a hundred times, the trial judge had improperly and completely deprived the applicant of his right to cross-examine the prosecution witnesses effectively and hence his right to a fair trial.  In his submission, counsel complains that the judge asked questions, made comments and interrupted so frequently that the applicant was unable to attack the credibility of PW4 effectively.  Counsel also submits that the judge failed to consider that, even if the applicant did utter the words in question to PW4, they would have no actual influence on the witness.  As can be seen from the transcript of PW4’s evidence, the judge asked questions for the sole purpose of seeking clarification of the answers of the witnesses or the questions of counsel.  He also made fair rulings where appropriate in respect of questions put by counsel for both sides.  Furthermore, the judge repeatedly reminded PW4 to listen to and answer questions carefully.  Most importantly, after carefully going through the transcript, we do not think that the questions or interventions of the judge had affected the applicant and his counsel in questioning the witnesses or prevented the applicant from putting forward the particulars of his defence.  Nor do we think that the judge had in any way been unfair to the applicant.  The sixth ground of appeal also fails.

22. For the above reasons, we are satisfied that the judge’s verdict had a solid factual basis and accorded with the relevant provisions.  The verdict was not unfair to the applicant.  None of the grounds of appeal is established and this application for leave to appeal falls to be dismissed.