HKSAR v. LEE MAN-LUNG

CACC 156/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 156 OF 2001

(ON APPEAL FROM DCCC 171 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

General background

1. On 10 April 2001, the Applicant (D2) was convicted in the District Court, following a trial before Judge Sweeney, of criminal intimidation, contrary to sections 24(a)(ii) and 27 of the Crimes Ordinance, Cap. 200 (charge 2) and blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210 (charge 3). The Applicant was sentenced on 25 April 2001 to a total of three years' imprisonment. He now seeks leave to appeal against his conviction on charge 2 alone.

2. The evidence could hardly have been more straightforward. As no defence evidence was called, the judge's general assessment of the evidence focused entirely on what the alleged victim (PW1) and his father (PW2) had said. In his summary of its effect, the judge said:

"PW1 is typical of those foolish gamblers from Hong Kong who so readily get caught up with loan sharks after losing at the gambling tables in Macau. The story he tells is a familiar one of being lent more gambling chips than he had requested but of never actually getting his hands onto them as the loan shark places all of the losing bets on his behalf. Of course he does not actually see the loan shark, Ah Dick, produce any cash for these chips as no money changes hands.

This case confirms a long held suspicion that loan sharks work with the staff of Macau casinos to create the illusion of a 'debt' that has to be repaid immediately. It is then a question of detaining the foolish victim until his family or friends in Hong Kong cough up as much money as possible. This case followed that pattern with an original request for $20,000 being inflated to $130,000 worth of chips followed by successive demands for $150,000, $180,000 and finally $220,000 in repayments or the victim's home would be messed up and his family might be harmed or put in fear. I believe PW1 became trapped in one of these loan-sharking scams and that he genuinely feared his family would be harmed if he did not co-operate." (Appeal bundle pp. 9-10)

3. Earlier in his Reasons for Verdict, the judge had described how PW1, aged twenty, had unwisely become embroiled with a man in Macau known only as 'Ah Dick' who had purported to lend large sums to PW1. Inevitably, it was all lost if indeed there was any money behind the arrangement at all. Ah Dick then told PW1 that he needed his personal particulars. He confiscated PW1's mobile telephone and even accompanied PW1 to the Macau Ferry Pier in Hong Kong. As soon as they reached there, PW1 was handed over into the clutches of D1 and an unknown wanted person (WP). These two men then took PW1 to a restaurant in Mongkok where D2 came into the picture for the first time. D1 and WP sat either side of PW1 and D2 sat opposite him at a corner table. PW1 felt surrounded and he was then asked to write out his own address and telephone number and to provide similar details about his relatives and family. When these had been written down, he was told, in the words of the Reasons for Verdict describing what next happened, that:

".... they would soon go to PW1's home to collect money and D1 told PW1 not to attempt to leave or they would disturb his family by messing up his home. He said that in the presence of and in the earshot of D2 and his tone was fierce." (Appeal bundle pp. 8-9)

4. PW1 felt scared and did not dare to leave. After that, PW1 was made to go with D1 and D2 to his house. They all arrived there at about 11.30 p.m. PW1 was not allowed to telephone anyone in his family before going there. The piece of paper on which he had written the details of his family members had been taken in a different direction by WP when he had left the restaurant. Indeed, before they left, WP had even come back to the table in the restaurant at one stage to inform PW1 that his father had been telephoned by him.

5. What followed at PW1's address was the blackmailing of PW1's father (PW2) alleged in charge 3 about which no complaint is made in these proceedings. D1 and D2 were in fact still at that address at 2.00 a.m. when police arrived to arrest them, having been alerted to what was happening by one of PW1's relatives.

The application

6. The particulars of the criminal intimidation in charge 2 alleged against D1 and D2 that, on 20 November 2000, at the Mongkok restaurant where PW1 had been made to go from the Macau Ferry, they:

"threatened Leung Tak-ming (PW1) with injury to his person or to the family members of the said Leung Tak-ming, with intent to cause the said Leung Tak-ming to do an act which he was not legally bound to do."

7. The main ground of appeal raised by Mr Boyton, for the Applicant, alleged that the judge had erred in holding that the Applicant had assisted D1 because, it was submitted, he was "merely present (in the restaurant) and there was no evidence (against him) of any overt acts". Furthermore, Mr Boyton complained that the judge had been wrong to find that D1's utterances were intended to cause PW1 "to gather up money from his family members to repay a highly inflated gambling debt". This last quotation was taken from the Reasons for Verdict which, in its full context, reads as follows:

"There is absolutely no doubt in my mind that D1, in the presence of D2, and assisted by him, did threaten negative implications, i.e. 'gau yeh' on PW1's family members with intent to cause Leung Tak-ming (PW1) to do an act he was not legally bound to do, namely, gather up money from his family members to repay a highly inflated gambling debt." (Appeal bundle pp. 11-12)

8. The relevant portion of section 24(a)(ii) of the Crimes Ordinance reads as follows:

" 24. Certain acts of intimidation prohibited

Any person who threatens any other person-

(a) with any injury to the person, reputation or property of such other person; or

...................

with intent in any such case-

....................

(ii) to cause the person so threatened ......... to do any act which he is not legally bound to do;

....................

shall be guilty of an offence."

9. Mr Simon Tam, on behalf of the Respondent, in a comprehensive written submission (which we did not need to call upon him to amplify), submitted that the judge plainly, and with strong justification, found all the elements of the offence had been established.

10. Mr Boyton's suggestion that the intent behind D1's fiercely spoken words in D2's presence was simply to persuade PW1 not to leave the restaurant took an absurdly narrow view of the evidence bearing in mind all the circumstances which had led PW1 to find himself in their company. Whilst D1's words may well have amounted to a threat which, for a short time, had the side effect of making PW1 decide to remain in the restaurant, there can be no doubt whatever on the whole picture presented by the evidence, that D1, assisted by D2, intended to cause PW1 to gather up money from his family members in the way the judge had found. In fact, it is also clear from the evidence that PW1 was told at one stage that he could leave the restaurant if he wished but that, in the event that he did so, someone would very soon be at his house to mess it up.

11. Mr Boyton went on to support his application with a slightly different ground of appeal which had been settled in the last day or so, having had more than four months in which to consider this matter after settling the Perfected Grounds of Appeal in September 2001. He submitted, in effect, that the judge had found D2 guilty on a different factual basis to the one which had been set out in the Summary of Facts. This made reference to the effect of D1's threat on PW1, stating in terms that he was "feeling scared", and that he dared not "leave (the restaurant) or scream".

12. This particular passage was entirely consistent with the prosecution's case but the Summary of Facts also made it abundantly plain that the whole scheme, to which D2 lent his support at the restaurant, was designed to collect a so-called gambling debt from PW1. All we need to say in relation to this additional ground is that the threat made to PW1 may have had the effect on him of keeping him for a while at the restaurant, but it was not the immediate effect of the threat but rather the intention behind it with which the judge was concerned. Furthermore, as the evidence amply demonstrated, the clearest trail as to what was intended by their threat was provided by D1 and D2's subsequent visit to PW1's home late at night.

13. Mr Boyton also tried to criticise the judge, in his written submission, for having failed to acquit on charge 2 when the judge had given the benefit of the doubt to D1 and D2 on the first charge of false imprisonment. This criticism was utterly misconceived. The judge acquitted on the first charge because, as he put it, there was "an absence of evidence of physical restraint" in the restaurant where this offence was alleged to have occurred. The ingredients of the two offences set out in charges 1 and 2 were quite different and it is plain the judge correctly identified the relevant evidence in respect of each of these offences against D2. The evidence was insufficient for a conviction on charge 1 but it was overwhelmingly strong on charge 2.

Conclusion

14. This application is devoid of all merit. For this reason, it is dismissed and we shall order that three months of the time the Applicant has spent in custody awaiting this hearing shall not count towards his sentence.