THE QUEEN v. HO KIN TONG

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 983/91

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BETWEEN

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J U D G M E N T

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Hon. Yang, C.J.

1. This is an appeal against conviction and sentence.

2. The appellant was convicted after trial by Mr. J. Brennan sitting at the Kwun Tong Magistrate's Court of Blackmail and sentenced to imprisonment for 15 months. The Particulars of Offence are that on or about 12 February 1991, with a view to gain for himself, he made an unwarranted demand of HK$50,000 from one Chan Chi-wai ("the victim") with menaces.

3. The main evidence against the appellant came from the victim (PW4) and his three friends (PWs 6, 7 and 8), coupled with tape recordings of telephone conversation between him and a man who claimed to be Tom Chan. The appellant did not give evidence.

4. In November 1990 the victim became friendly with a lady called Ng Wing-tung (PW1), who was also the appellant's girlfriend. He knew the appellant was a police officer and had seen him a few times, but apart from nodding to each other, did not speak. On the 6th February 1991, a man telephoned the victim, claiming to be Chan or Tom Chan, and demanded $50,000 from him for his loss of face because his girlfriend was going out with him (i.e., the victim) and also for medical fees for this girl. He sounded angry and very unfriendly and he threatened to destroy the victim's family. On the 11th February an arrangement was made for the two men to meet between midnight and one o'clock on the 12th. The appellant who said he was Tom Chan, was accompanied by the girlfriend Ng Wing-tung and another man. The victim was with his three friends (PWs 6, 7 and 8). The meeting took place at a promenade and lasted two hours. The appellant demanded $50,000 from the victim, allowing him 10 days in which to pay. The appellant said if the money was not paid, he would ask the victim's father to pay and there would be destruction for the family. After this meeting the victim reported the matter to the ICAC.

5. On the 20th February, officers from the ICAC went to the victim's home and installed a tape on his telephone. On instructions from the ICAC he telephoned the appellant's girlfriend Ng wing-tung for her to ask the appellant to telephone him. Almost immediately afterwards, a man who claimed to be Tom Chan telephoned the victim and again made a demand of $50,000 to be paid in full. The telephone conversation was taped and played back to the victim and he was able to identify the appellant's voice as well as the girl's.

6. On the following day, the 21st, officers from the ICAC again installed a tape on the victim's telephone. He received a telephone call from a man who claimed to be Tom Chan and there followed a discussion about the payment of money by instalments. An arrangement was made to meet at three o'clock the same afternoon. At the end of the telephone conversation, the tape was played back to the victim who identified the voice of the man who claimed to be Tom Chan and of himself.

7. The meeting took place at about three o'clock at the Side Walk Restaurant, Telford Gardens, Kowloon Bay, as arranged. The victim had on his person two tape recorders. Tom Chan came and the victim identifed him as the man whom he had met earlier at the promenade. He went on to describe the meeting at the Side Walk Restaurant:

    "I gave Mr. Tom Chan the $10,000 at first but he did not put it into his pocket. He only put a saucer on it. Later I pretend to make a phone call to the bank to see if there was any money. On return he told me to put $10,000 back in my pocket. He asked me to go to bank and collect full amount before giving it to him. When met Tom Chan he was the same man I had met earlier at the promenade. Defendant was the same man that I met on the promenade and at the restaurant.

    Tom Chan was arrested by the ICAC officers. The tape recorder attached to my body now removed by the officers. Listened to that tape recording. I recognize the voices on the tape was Tom Chan and the other was earlier conversation with Tom Chan made me very scared so I was being very polite to him. Believed Tom Chan would harm my family."

8. Whilst the defence denied that the voice on the tapes was that of the appellant's, clearly the victim identified the voice as that of Tom Chan, and he said the appellant and Tom Chan were one and the same man.

9. The victim's friend Yip Kwong-wah (PW6) spoke in evidence about his presence at the promenade. He also talked with the appellant. He said in evidence that the appellant wanted the victim to give him $50,000 because he had solicited the appellant's girlfriend which made him lose face, at the same time threatening to cause Chan's whole family to emigrate if the money was not paid. Another friend Chan Tung (PW7) gave similar evidence and said the appellant told him he wanted the victim to pay $50,000, whereupon Chan Tung swore at the appellant and the appellant hit him. The evidence of the assault was corroborated by Yip Kwong-wah. Chan Tung also said in evidence that the appellant said he wanted the $50,000 because the victim had solicited his girlfriend and she was weak from the beating, and medical fees were required for her to see a doctor.

10. The other friend Ng Man-luen (PW8) gave evidence about the meeting at the promenade but did not identify the appellant. He spoke of "a fight" between Chan Tung (PW7) and "the man" after the man had hit Chan Tung.

11. The first ground of appeal is that the learned magistrate erred in placing no weight on a statement made in a video interview of the ICAC with the appellant (ExP4) because it was self-serving. Whilst it is not in dispute that the appellant's statement was in fact self-serving, Mr. Matthews, counsel for the appellant, argues, rightly, that it is nevertheless admissible and relevant as to the appellant's reaction when confronted with the allegations put by an ICAC officer: vide R v Ma Wai-hung (1991) HKLR 174, 176. In my judgment the magistrate was doing no more than stating a fact when he said that in ExP4 the appellant made no admission and he considered it to be a self-serving statement. He was far from dismissing the statement simply because it was self-serving. If that had been the intention, he would hardly have admitted the statement in evidence. This ground of appeal fails.

12. The third ground of appeal may be taken shortly. It is that the magistrate erred in failing to exclude evidence that the appellant had beaten his girlfriend and was a troublesome person. I accept Crown Counsel Ms. Rector's analysis of this evidence. The evidence was admissible as being relevant to the girlfriend's credibility. In her statement to the police, and in much of what she said during her telephone conversation with the victim, she claimed she had been beaten up by the appellant. This she denied in her evidence in court. The evidence is also relevant to show that the appellant deliberately portrayed himself to the victim as a man of violence in order to frighten the victim. It is also relevant to the evidence that money was demanded as medical fees for the girlfriend after the appellant had beaten her. In my judgment there is nothing in the third ground of appeal.

13. The second ground of appeal is divided into three parts:

(a)    the magistrate failed to keep a full minute of an objection to the admissibility of the recordings and transcripts of the tape recordings of the telephone conversation contrary to s. 34(1) of the Magistrates' Ordinance, Cap. 227;

(b)    there was no evidence of identification of the voices on the tape recordings along the Turnbull guidelines and the magistrate did not listen to the tapes himself; and

(c)    there was no evidence that the transcribers of the tape recordings had personal knowledge of the appellant's voice.

As to (a), the magistrate's notes show this entry:

    "Formal application made to produce exhibits after evidence in chief by the witness. Objection by the defence at their production. Evidence had already been given re them and as only formal production objection was overruled."

14. Mr. Matthews complains that this record is inadequate and he does not know what the objection by the defence was. Ms. Rector, who conducted the prosecution at trial, submits that no objection was made as to admissibility either in chief or in cross-examination. It was only when the Crown sought to have the transcripts labelled as court exhibits that objection was raised. In reality, the transcripts had already been produced; only the purely formal step of marking them as exhibits was lacking. In my view the magistrate's notes were adequate for the purpose of s. 34(1) of the Magistrates' Ordinance.

15. As to (b), I accept Ms. Rector's argument that it was not a "fleeting hearing" situation comparable to the "fleeting glance" situation in Turnbull. On the 6th February the victim had a telephone conversation with a man called Chan or Tom Chan who made a threat. On the 11th he met the appellant who represented himself as Tom Chan and the meeting lasted two hours. And a similar demand was made. On the 20th Tom Chan called the victim almost immediately after the latter had asked the girlfriend to ask the appellant to telephone the victim. Over the telephone Tom Chan again demanded $50,000. He was able to identify the voice as the appellant's. Then on the 21st Tom Chan again telephoned the victim: the voice was identified by the victim as that of Tom Chan's. An arrangement was made to meet at three o'clock that afternoon at the Side Walk Restaurant. At the appointed time and place the appellant turned up as Tom Chan. It is not in dispute that the appellant did attend the meeting, and there was no application by the defence to have the tape recordings played back. In my judgment there is ample evidence for the learned magistrate to find that Tom Chan's voice on the tape recordings was that of the appellant's.

16. Lastly on (c), the victim listened to the tape and identified the male voice as Tom Chan's. He also identified the appellant and Tom Chan to be the same person. His evidence was accepted by the trial magistrate. On the evidence PW4 must have considered the transcripts a correct record of the telephone conversations

17. Upon the evidence of the victim and his three friends (PWs 6, 7 and 8) the magistrate found the appellant guilty of Blackmail. It is a correct verdict.

18. I have considered Liu Kwok-wah v R (1969) HKLR 595, and R v Chai Shang-yi (1988) No. 196 (Crim. App.), at pp 6-7. There is nothing which indicates that the magistrate had failed to comply with the authorities or erred in coming to his conclusions as regards the tape recordings.

19. The appeal against conviction is accordingly dismissed.

20. On sentence, the appellant, acting in person, asked for a lenient sentence. Mr. Matthews pointed out to this Court that the offence was not committed in the course of duty as indeed it was not.

21. I agree with the learned magistrate's observation that the fact that the appellant was a serving officer was an aggravating rather than a mitigating factor. The sentence of 15 months' imprisonment is in all the circumstances of this case an entirely proper sentence.

22. The appeal against sentence is also dismissed.