THE QUEEN v. KO WUN CHUNG

-----------

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

JUDGMENT

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

Penlington, J.A.:

1. This is an application for leave to appeal against conviction on a charge of blackmail. The facts of the case, insofar as relevant to this applicant who was one of eight persons charged, was that on the 26th June, 1989 he went to office premises in Shatin together with the other seven. One of them, the 3rd accused in the trial, was the leader of this group and the object of the visit was to try to recover a debt which was alleged to be owed to the 3rd accused by a Mr. Tse. The group arrived, though there was some conflict in the evidence as to whether they all arrived together or whether there were in fact two groups. Mr. Tse himself said that they all arrived together but a member of his staff said that there was first of all three men came and then the others arrived some 15 minutes later. I do not, however, think anything turns on that.

2. It is quite clear from the evidence given by Mr. Tse that within his own office there were six of these persons but the applicant was not one of them. He did not enter Mr. Tse's own private office but remained in the outer office. A sketch was produced showing the layout of that office which ran parallel to Mr. Tse's office and an accountant's office which was occupied by his wife although she was not there at the time. Those three offices were separated by what appear to be large glass windows. Photographs were produced.

3. It is clear that some minor violence was used on Mr. Tse, again not by this applicant, and threats were uttered as to the consequences of his not paying some $62,000 alleged to be owing on an IOU. As a result of that, with the assistance of a member of his staff, Mr. Tse eventually forced open a drawer in the accountant's office and took out a cheque book and made out a cheque for the $62,000.

4. Evidence was given by two members of the staff, which the trial judge accepted, that while this was going on, they were not allowed to leave their office by the group of men, one of whom was clearly the applicant. An incoming telephone call was made but one of the staff, a Miss Law, was told not to answer it. The receiver was lifted off its cradle and slammed down again. A customer, who was present in the office when the group entered, and a cleaner were also not allowed to leave. Miss Law said that she was very frightened and that is supported by the other member of the staff, Mr. Ng, who also said that he was frightened. There is no doubt that both these members of the staff and the customer and the cleaner were detained in the office for some period of time and it was made clear that outside communication was not going to be permitted.

5. Evidence was given by the 3rd accused. He was asked that if there was any dispute that they stopped the cleaner leaving and he answered, that somebody shouted, "Better not leave now. You boss is in debt, has to pay."

6. There was also evidence that on the following day the same group of men, including the applicant, returned to Mr. Tse's office. He had however complained to the Police in the meanwhile and they were all arrested.

7. After his arrest the applicant made a cautioned statement saying that on the 26th he had gone to Mr. Tse's office with the other men, led by the 3rd accused, in order to assist in "pushing" Mr. Tse for payment of a debt. It is not clear why this statement was produced as it seems to be totally exculpatory and we assume it was to prove the applicant's presence at the relevant time.

8. There are two grounds of appeal which have been argued by Mr. Macrae, for the applicant. The first is whether the evidence proved that the applicant, though a member of the group, was aware that menaces had been used against Mr. Tse and if such menaces were used, whether he did or did not have a belief that those menaces were a proper means of enforcing the debt so as to provide a defence as allowed for in Section 23(1) (b) of the Theft Ordinance..

9. Mr. Macrae says that there is no specific finding in that respect by the trial judge in relation to the applicant and that he simply treated him as being member of a group. He came to the conclusion that the entire group were involved in this enterprise of menacing Mr. Tse and obtaining money from him but that is not enough. Each defendant should have been considered to see if there was a possibility that he was not aware of the threats and violence received by Mr. Tse. As those took place in the inner office the applicant can only have been there to increase the general pressure on Mr. Tse to pay a debt and, while unpleasant, that is not criminal.

10. The second ground of appeal is that the trial judge made no reference to the cautioned statement which was put in evidence by the Crown, and the whole contents should have been considered. Mr. Macrae says, and I agree, that the word "push" in the statement should not be taken as meaning any more than that there was to be pressure put on Mr. Tse to pay the debt. This then is a totally exculpatory statement. He does not admit to anything apart from being present, which was not in dispute. The question is whether the judge has given sufficient weight to this statement which was not, however, supported by evidence from the applicant.

11. I am satisfied that the evidence of the presence of the group in the outer office, which was hot large, when the events which were described by the witnesses were taking place, justified the judge in coming to the conclusion that the applicant must have been fully aware of what was going on. By any account, he must have been aware that the staff were intimidated, that they, the cleaner and the customer, were prevented from leaving, that the telephone was slammed down preventing any communication with outside and, in view of the large glass window between the outer office and the accountant's office, that a desk drawer was forced open and a cheque book taken out.

12. So far as belief is concerned that these menaces, and I am satisfied that they were menaces, were a proper means of enforcing the debt, there was no evidence from the applicant that he did not have any such belief. I am satisfied that on the evidence before him the judge was entitled to come to the conclusion that the applicant did not believe that this was a proper means of enforcing a debt. Mr. Macrae argues with vigor that debt-collecting often does call for some degree of pressure but provided it does not go too far, it is perfectly legitimate. Even if that is so, and I certainly reject the suggestion that some degree of violence is permissible, I am satisfied that the trial judge was justified in concluding that the degree of pressure used by the whole of the group went well beyond what was proper and, in the absence of any evidence from him, what the applicant thought was proper.

13. So far as the cautioned statement is concerned, while it was not specifically mentioned by the judge in his reasons, it was not supported by evidence. In the light of the other evidence which was given, it was not incumbent on the judge to conclude from that statement that the applicant believed that what was happening in the office at the time was proper.

14. We have been referred to two decisions, the first in The Queen v. Harvey and others [1980] Cr.App.R. 139, where it was held that it was a matter for the jury - and here the judge was sitting as judge and jury - to consider the question of an accused person's belief as to whether menaces were a proper method of enforcing a debt. I see no reason to believe that here the trial judge, as a jury, did not consider whether the applicant did have such a belief. He clearly found that he did not. The other decision is that of The Queen v. Jones (1977) 65 Cr.App.R. 250 which held that mere presence in a group at the scene is not sufficient, that there must be either actual participation in the offence deliberate and encouragement. That was a charge of causing actual bodily harm. Here the presence of this large group was clearly one of the factors which constituted the menaces directed at Mr. Tse. The applicant was part of that group. The fact that there was such a large group enabled them to virtually imprison Mr. Tse, his staff and a customer and prevent communication with outside. He did nothing at all at any stage to dissociate himself from these menaces which clearly he could have done by leaving the premises if he so wished. Indeed he returned with the same group the following day.

15. I am satisfied that the trial judge has given full consideration to the evidence of this matter and can see no reason for interfering with the conclusion he came to that the applicant was a party to using menaces to force Mr. Tse to sign a cheque of $62,000 and that he had no belief that those menaces were proper.

Power, J.A.:

16. Yes, I concur with all that was fallen from my brother Penlington.

Macdougall, J.A.:

17. I agree that this application for leave to appeal against conviction should be refused.