R. v. FOOK KAM FAI and Another

No. 210 of 1995
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Bewley, J.: (giving the judgment of the Court)

1. On 2nd March, 1995, in the District Court the 1st applicant was convicted by Deputy Judge Davies, as he then was, on three charges of blackmail, two charges of theft and one charge of being a member of a triad society. On the same occasion, his brother, the 2nd applicant, was convicted on one charge of blackmail. After calling for background reports, Deputy Judge Davies sentenced the 1st applicant to 4 years' imprisonment on the blackmail charges, 18 months' imprisonment on the theft charges and 18 months' imprisonment also on the triad society charge, all sentences to run concurrently. He sentenced the 2nd applicant to 18 months' imprisonment on the single charge of blackmail. Both applicants now apply for leave to appeal against conviction and sentence.

2. The case arose out of a four month anti-triad police operation, in which three officers posed as staff members of a sub-contracting firm. It was the Crown case that on 17th August, 1993, the 1st applicant told PC46248, posing as site manager, that he would have to pay protection money. After negotiation, the figure of $4,500 a month was agreed. This was followed by further meetings and telephone conversations concerning the payments.

3. At the next meeting, on 23rd August, attended by both the applicants, PC46248 was accompanied by PC45569, who secretly recorded the conversation. The recording was not of high quality and often indistinct. Consequently, as the judge found, the transcript left much to be desired.

4. The first matter discussed was the difficulty in raising the money and the need to disguise the payments in the firm's books. The 1st applicant was then asked if the payments might be reduced if he succeeded in a bid for work on Phase 3 of the project. The 1st applicant said they would wait and see. PC46248 then asked where the payment should be made. The 2nd applicant said it should be left at the store near the site entrance, which he subsequently pointed out.

5. On 15th September, $9,000, representing two months' protection fees, was paid to the 1st applicant in a Yuen Long restaurant.

6. The next development was a telephone conversation in November between the 1st applicant and PC46248. The 1st applicant angrily complained that payments were in arrears and were in any case too small. He had discussed the matter with his "brothers", who had said they would not collect any more, meaning "they will chop you". It was agreed that henceforth $5,000 a month would be deposited in a bank account, the number of which was supplied by the 1st applicant.

7. The dénouement took place at a meeting in a private room of a restaurant on 9th December, where the 1st applicant was lured on the pretext that a new partner in the company required to meet those persons who were demanding money from the company, so as to ensure that the company would not be cheated. The witnesses said they were directed by the 1st applicant to arrange two tables at the restaurant so that the 1st applicant and his "Big Brothers" could meet with the new "boss" of the company. Because the company was two months in arrears in the payment of protection fees, $9,500 was paid into the same bank account prior to the meeting.

8. Sgt.2527, who was to pose as the new partner or boss, was provided with $5,000 in marked currency notes for him to hand over to the 1st applicant at the restaurant. As arranged, the 1st applicant turned up at the restaurant with his brother, the 2nd applicant, and about twenty other persons, who he claimed were all members of the 14K Triad Society. The 1st applicant made a speech to the assembled gathering, in which he made it clear that nothing would happen so long as payments were made, but warned that he and his associates should not be blamed for any trouble should payment stop. Sgt.2527 duly handed over the $5,000 to the 1st applicant, which was later retrieved from him. It was while the meal was in its early stages that other police officers burst in and made the arrests.

9. It was put to the officers in cross-examination that, because of their preconceived views, they had deliberately misconstrued the 1st applicant's words to infer that he was engaged in an unlawful enterprise, when in fact he had merely entered into an agreement to assist in preventing trespassers, such as illegal immigrants, from invading the construction site. The applicants did not give evidence on the general issue.

10. Cautioned statements made by both applicants were not admitted. The judge concluded that some improper pressure had been brought to bear upon both defendants to persuade them against their wishes to supply information. The 1st applicant claimed in his evidence on the voire dire that, in the course of the interview, he had been confronted by PC46248, which was denied by both the latter and the interviewing officer. The judge found that the 1st applicant's evidence on this point was logical and probably true. Consequently, although he believed that the PC's evidence about the meetings and the telephone calls was true, the judge directed himself that he should not place weight on that evidence unless corroborated by the other officers. He was satisfied that PC45569 and Sgt.2527 were honest and reliable witnesses. He therefore was able to accept PC46248's evidence as to what occurred at the first meeting with the 1st applicant and also his evidence of the other meetings and telephone conversations when he was not accompanied by other officers.

11. It is submitted by Miss Wong, who appears for both applicants, that the shadow that fell on PC46248's credibility as a consequence of his probable lie on the voire dire was not considered by the judge when he assessed the credibility of the other officers. It is true that he did not refer to this aspect in his Reasons for Verdict, but if the evidence of the other officers is true, that tends to confirm that of PC46248. If it is false, the whole Crown case must be a complete concoction. That, having regard to the admitted evidence of the tape transcript, is scarcely possible. The other officers were not involved in the interviews, only in the undercover operation. There was no reason why the judge should not have accepted their evidence about that.

12. Miss Wong also takes issue with the transcript of the tape. She submits first that the judge has not quoted it accurately in the passage of his Reasons for Verdict in which he says :

"What one can glean from the transcript is that PW2 explained that there was difficulty in obtaining the money demanded; that some effort was needed to disguise the nature of the payments in the company's books. D1 was assured that it could be done. He asked for assurance that an amount had been set aside and said that he considered this to be most important. He expressed his fears that if PW1 and PW2 had difficulty in getting the money he would not be able to collect it 'smoothly'."

We have adjourned the application in order to be supplied with the transcript, which should have been included in the appeal bundle in the first instance since this point was taken. Having gone through this document and compared it to the Reasons for Decision, we are satisfied there is no substance in this ground.

13. It is also submitted that the transcript of the tape is hearsay and should not have been admitted. That with respect is not right. It was produced by consent as an accurate record of the tape. Nor does the fact that the latter was of poor quality and often indistinct render it inadmissible. All it means is that weight may only be placed on those passages that are clear and decipherable. This is what the judge did.

14. It is true that the 2nd applicant does not feature largely in the transcript, but he did indicate where the money should be left and he did attend the subsequent dinner. We are satisfied that the judge was entitled to draw the inference that he was a party to the blackmail. So far as the 1st applicant is concerned, the evidence established all the ingredients of the offences of blackmail, theft and being a member of a triad society. We are satisfied both applicants were properly convicted and we refuse the applications for leave to appeal against conviction.

15. Miss Wong has indicated that, in that event, the applications in respect of sentence would be abandoned. They are therefore also dismissed.