HKSAR v. HON SUI HO, MANDY

CACC 437/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 437 OF 2007

(ON APPEAL FROM DCCC NO. 654 OF 2007)

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court) :

1.  On 30 November 2007, following a trial in the District Court before Judge Chua, the applicant was convicted on three charges of blackmail, contrary to s.23 of the Theft Ordinance, Cap.210, and one charge of criminal intimidation, contrary to s.24(a)(i) and s.27 of the Crimes Ordinance, Cap.200.  The applicant was sentenced to a total of three years and eight months’ imprisonment.  The applicant has sought leave to appeal against his convictions.

2.  In her Reasons for Verdict, the judge found that the victim of all four offences was a woman who, for purposes of the criminal proceedings, was identified only as ‘X’.  The applicant and X had first met in or about November 2001.  An intimate relationship had begun as a result of which a daughter was born.  The relationship had broken down in late 2004.

3.  The judge was satisfied that a substantial cause of the breakdown of the relationship was the violent manner in which the applicant treated X.  Despite this abuse, the evidence revealed that the parties kept in contact.  The judge made a specific finding that, being aware that X had strong feelings for him, the applicant would from time to time seek money from X.  This was done both during the course of the relationship and after it had broken down.  The judge found that, while on a number of occasions X had readily handed over monies, there were occasions when she had only agreed to do so under duress; that is, after the applicant had threatened her with violence and/or had perpetrated violence on her.

4.  As to the four offences of which the applicant was convicted, these can most easily be considered by looking, first, to the two offences of blackmail that the trial judge found had been committed in or about early 2004 and, second, to the one charge of criminal intimidation and the third charge of blackmail that the trial judge found had arisen out of the same continuing course of events some three years later in January 2007.

5.  As to the first offence of blackmail, X testified that, in or about early 2004, she could not be sure of the exact month, the applicant went to the apartment where she lived with the child of the relationship.  The applicant demanded money from X.  He threatened her, saying that if she did not get the money for him, he would throw their baby daughter from the apartment down onto the street seven floors below.  X testified that the threat so frightened her that she was reduced to tears.  X testified that, on that particular night, her salary was due to be transferred into her bank account.  She and the applicant went to an ATM machine on two occasions to see whether the transfer had been made.  On the first occasion, the money had not yet been transferred and, on returning to the apartment, X testified that she was assaulted by the applicant.  However, when the account was checked several hours later, it was found that the funds had been transferred and X was able to make payment.

6.  In convicting the applicant, the trial judge was satisfied that, despite the passage of time, the applicant’s threat to harm their daughter had remained so vivid in X’s mind that she was able to accurately recall events.

7.  As to this first conviction of blackmail, the applicant’s counsel, Mr Patterson, made a number of submissions.  These were of general application to all the offences of which the applicant had been convicted. 

8.  It was submitted, first, that the judge had not had proper regard to the true relationship that existed between the applicant and X; namely, that they were lovers in an albeit stormy relationship and that, on the admitted evidence, X had a history of making voluntary payments to the applicant to assist him.  Mr Patterson argued that, viewed in this context, the demands for money made by the applicant, even if accompanied by threats, did not constitute the criminal offence of blackmail.

9.  Clearly, the nature of a relationship is an important factor to take into account.  But an intimate relationship may nevertheless be an abusive relationship, one in which the one party is guilty of criminal acts against the other.  This is not uncommon.  In this regard, the judge found as a fact that the applicant had threatened to kill X’s baby daughter if he did not receive money.  The judge found that the threat had been taken seriously by X, and that, as a result of that threat, she had complied with the applicant’s demand.  In our judgment, the judge was fully entitled, on the facts she found to be proved, to conclude that the applicant’s actions had gone beyond the emotional hyperbole of a lover’s confrontation and constituted the criminal offence of blackmail.

10.  Mr Patterson further submitted that the judge had failed to give proper regard to the fact that, on the evidence of X herself, she had only made ‘loans’ to the applicant, this being a material fact to be taken into account in determining whether offences of blackmail had been committed.  There is no merit in this submission.  Leaving aside the fact that, on Mr Patterson’s own admission, there was no evidence of any repayment by the applicant to X of any monies taken by him from her, it was, in our view, evident that X, in the course of her testimony, used the word ‘loan’ as a euphemism for an outright demand for money which both parties at the time clearly understood would not be repaid.

11.  Equally, in our view, there is no merit in Mr Patterson’s submission that the judge failed to consider whether the demand made of the applicant was unwarranted.  The judge came to a finding that X had given monies to the applicant because he had threatened to kill their child, a threat which she had taken seriously.  In the circumstances, there being no evidence to the contrary, the applicant’s demand was patently unwarranted.

12.  Mr Patterson made the further submission that the judge erred in relying on X’s unsupported evidence.  Again, we find nothing in this ground.  The judge concluded, as she was entitled to do, that X had a good memory of the events and that she had accurately recalled those events.  Indeed, the judge came to the finding that X, who had given evidence over a period of four days, often under considerable emotional distress, had attempted to recall events truthfully and was worthy of belief.  The confrontation that had constituted the blackmail had involved the applicant and X alone.  The applicant had chosen not to put any evidence before the court to contradict X’s assertions.  In such circumstances, having found that X had an accurate recollection of events, the judge was entitled to convict the applicant on the testimony of X alone.

13.  As to the second offence of blackmail, X testified that, to the best of her memory, this had taken place in February 2004.  It was her testimony that the applicant had met her when she was leaving work.  He had demanded money.  She had checked her bank account but found that it contained no funds.  According to X, because of this, when they returned to her apartment, the applicant had assaulted her.  X testified that the applicant had then stayed the night at her apartment.  The following morning he had not let her go to work but had insisted that she contact a money lender in order to borrow money.  He threatened that, if she did not do so, he would ‘harass their daughter’ and cause her to lose her job.  X testified that she had attempted to borrow money but without success.  In the result, afraid of what would happen to her, X said that she was able to obtain funds by using her credit card and gave these funds to the applicant.

14.  In convicting the applicant, the judge accepted that X must have been confused as to the manner in which she had eventually been able to obtain monies to give to the applicant; that is, by means of her credit card.  This was because, the prosecution case, as the judge understood it, was to the effect that X had been forced to use her credit card to obtain monies for the applicant on another occasion entirely, that occasion being the subject of the third charge on the indictment.

15.  However, while accepting that she could not rely on X’s testimony as to the manner in which she had obtained funds, the judge was satisfied that, on this particular occasion, the applicant had met X at her place of work and, after spending the night with her, had threatened her and demanded money from her.  That, the judge concluded, was sufficient to prove the charge of blackmail.

16.  However, it is apparent that the confusion as to how she had come to obtain the monies was not the only instance of such confusion in X’s testimony concerning this particular count of blackmail.  Importantly, it appears that X’s testimony may have been confused as to the nature of the threat made to her. 

17.  In our judgment, understandably after such a long lapse of time, it is evident that the applicant’s testimony as to what occurred in February 2004 became a synthesis of her assertions as to that incident and her assertions as to another independent incident, the subject matter of the third charge. 

18.  The judge acquitted the applicant of the third charge on the basis that there was no evidence to support it.  It is apparent that no supporting testimony was given because prosecuting counsel did not seek to lead evidence from X in respect of that third charge.  Counsel’s failure in that regard could only have been because he accepted that X, as we have put it, had ‘synthesised’ the two separate events into one. 

19.  For the reasons given, just as, correctly, the applicant had to be acquitted on the third charge, we do not see that the conviction on the second charge of blackmail can stand. 

20.  We turn now to the second set of offences which, as we have said, arose out of a course of conduct which took place in January 2007; first, an offence of criminal intimidation and, second, a further offence of blackmail.

21.  The evidence revealed that on 5 January 2007, the applicant, who was then living in Shenzhen, telephoned X in Hong Kong.  He said that he wanted X to travel to Shenzhen in order to collect a cheque from him.  He then wanted X to return to Hong Kong to cash the cheque and to bring the proceeds back to him in Shenzhen.  X testified that she initially refused this request.  However, the applicant telephoned her on a number of occasions and made the threat that, if she did not do as he demanded, he would, as X put it “get someone to set fire to my flat, make me lose my job and get someone to harass my daughter.”  X testified that she was placed in fear and, in the result, did make the journey to Shenzhen that same day to collect the cheque.

22.  The judge accepted X’s evidence that the applicant had made threats to her over the telephone, further accepting the nature of those threats and their impact on X.  On this basis, she convicted the applicant of criminal intimidation. 

23.  It was X’s testimony that, when she arrived in Shenzhen, she met the applicant and went with him to his apartment.  X said that there was a woman at the apartment.  She was the then girlfriend of the applicant. 

24.  According to X, the applicant informed her that there was in fact no cheque which he wished her to take back to Hong Kong and that it was simply part of a ruse to entice her across the border.  She said that the applicant and his girlfriend would not permit her to leave the apartment.  They began in various ways to threaten her and abuse her.  X testified that the applicant had a replica dagger which, as part of his threats, he used to inflict superficial wounds to the front and back of her neck.  The abuse culminated in X being forced to strip off most of her clothing so that the applicant could photograph her in suggestive poses. 

25.  It was X’s testimony that the applicant downloaded the photographs onto a computer.  He threatened to publish the photographs on the internet unless he was paid a sum of $100,000.  He then forced X to place her fingerprint on a document, an IOU acknowledging her indebtedness to him in that sum.

26.  X testified that she was only released from the apartment at about 4.30 in the morning on 6 January 2007 and returned to Hong Kong.  Upon her return, she went first to change her clothes and then, that same day, made a report to the police.

27.  Later that day, on the advice of the police, X telephoned the applicant.  She told him that she now had the money due under the IOU but could not return to Shenzhen as her daughter was in hospital.  There were a number of telephone calls as a result of which the applicant agreed to come to Hong Kong to collect the money.  He was arrested at LoWu after he had crossed the border.

28.  At the time of his arrest, the applicant was found in possession of the IOU bearing X’s fingerprint.  He was also found in possession of a memory card.  When first examined, no photographs of X were found on the memory card.  However, later examination by a forensic expert revealed a number of deleted photographs.  These included photographs of X which she testified had been taken of her in Shenzhen under duress on the night or early morning of 5/6 January 2007.

29.  The accuracy of this photographic evidence was challenged on appeal, further expert evidence being filed.  That evidence confirmed that the first unsuccessful examination of the memory card had not in any way damaged the card or interfered with what was on it.  It further revealed that 44 photographs had at one time been on the card, those photographs being deleted in early November 2006.  It was subsequent to that that the photographs of X were taken, they themselves also being deleted.

30.  It is to be observed that there was no evidence of any meeting between the applicant and X in November or December 2006 nor, during the trial, was any such meeting suggested.  That being the case, it was evident that the photographs of X must have been taken at or about the time asserted by her.

31.  During the course of the hearing before us, some suggestion was made that the lack of this expert evidence at trial may have prejudiced the applicant.  We do not see how.  The defence case was never that the photographs had been taken at some earlier time.  The defence case in respect of the photographs was simply that they had not been taken under duress.

32.  Returning briefly to the background of this matter, when interviewed under caution, the applicant said only that he felt remorse for the incident but declined to explain further.

33.  At trial, the applicant called no witnesses and chose not to give evidence himself.

34.  At this juncture, it should be noted that the charge which the applicant originally faced arising out of his attempt to obtain $100,000 from X under the IOU was one of conspiracy to steal, the allegation being that he and his girlfriend had conspired together.  However, after the closure of the prosecution case, the judge determined that this charge should be amended to one of blackmail.  S.23(1) of the Criminal Procedure Ordinance, Cap.221, permits a judge at any stage of a trial to amend an indictment if it appears to the judge that the indictment is defective and that the amendment may be made without causing an injustice.

35.  On behalf of the applicant, Mr Patterson submitted that a material injustice had been caused by the amendment being made after the closure of the prosecution case.  This injustice, said Mr Patterson, arose for two reasons.

36.  First, in respect of the original charge of conspiracy to steal, a notice issued pursuant to s.8 of the Criminal Jurisdiction Ordinance, Cap.461, had been served on the prosecution.  That notice had required the prosecution to show that it was satisfied that, pursuant to s.7(1) of the Ordinance, as the conspiracy to steal had arisen in Shenzhen, some act or omission or the happening of some event in pursuit of the conspiracy, would have constituted an offence in Shenzhen.  The prosecution, said Mr Patterson, had not complied with the notice and, by the amendment of the charge, had been relieved of that obligation.  The applicant had thereby been deprived of his ‘procedural right’ to have the court’s jurisdiction confirmed pursuant to the provisions of the Ordinance.

37.  S.8 of the Ordinance, however, provides that evidence of a corresponding criminal offence in Shenzhen is to be taken as being satisfied unless a notice is served stating that, in the opinion of the defence, there is no corresponding criminal offence (s.8(1)(a)) with reasons being given for that assertion (s.8(1)(b)).  It is on that basis only that the prosecution is required to show that a corresponding criminal offence does exist (s.8(1)(c)).  However, the notice served on behalf of the applicant failed to comply with the requirements of s.8(1)(a) and s.8(1)(b).  More than that, during the course of submissions, Mr Patterson accepted that it was inevitable that there was some form of corresponding offence; in short, that there had in substance been no grounds for issuing what was in any event a materially defective notice.

38.  As to the second asserted injustice that arose out of the amendment of the charge after the close of the prosecution case, Mr Patterson submitted that it had deprived the applicant of the ability to cross-examine on certain matters which took on greater significance under the amended charge of blackmail.  It was, however, always open to the applicant to seek the recall of prosecution witnesses.  No such application was made.  Nor was Mr Patterson able to identify the existence of any material injustice incapable at that stage of being cured by being given the opportunity to further test the prosecution case.

39.  As to the amended charge, that of blackmail, it charged the applicant with making an unwarranted demand with menaces during a telephone call that he had with X on 6 January 2007.  The evidence revealed that X had returned to Hong Kong from Shenzhen early in the morning of that day and, at the suggestion of the police had had a number of telephone calls with the applicant who was still in Shenzhen.  Those calls had concerned payment of the $100,000, it being X’s assertion that she could not return to Shenzhen to make the payment as her daughter was in hospital and that the applicant would have to come to Hong Kong to collect the money.

40.  There was no evidence that in any of those telephone calls the applicant had specifically repeated his demand.  However, the demand was integral to each call in that those calls took place for one reason only; namely, to find a way to meet the demand.  As such, as the judge found, the demand was implicit in each call.  In this regard, it is to be remembered that, when the calls took place, the applicant still had possession of the IOU and remained in a position to publish the photographs on the internet.  As the judge found, it was therefore not necessary for the applicant to restate his demand because he knew he did not have to do so.  A demand need not be expressed openly.  Indeed, it need not be expressed at all if the context makes it plain that a demand, and the menace behind it, is being made or is still being made.  On the facts, as the judge found them to be, we are of the opinion that she was entitled to conclude that the offence of blackmail was committed in one or more of the telephone calls made on 6 January 2007.

41.  On behalf of the applicant, it was argued that, as he was still in Shenzhen when the telephone calls were made, the court had no jurisdiction to try the matter, any unwarranted demand with menaces being made in Shenzhen and not in Hong Kong.  In support of his contention, Mr Patterson relied on the majority decision of the House of Lords in Treacy v. Director of Public Prosecutions [1971] AC 537.  But Treacy concerned the posting of a letter from England to Germany, it being found that a demand had been made when the letter had been written and posted and not when the letter had been received.  A telephone call is a form of instantaneous communication, very different from a letter.  A demand made by way of a telephone call involves direct and immediate communication.  As was said by Stephenson J, giving the judgment of the Court of Appeal in Treacy, a judgment upheld in the House of Lords :

“When the demand is made by word of mouth it is usually made at one time and place.  If the intended victim is too deaf to hear it or unable to understand it, it is nonetheless made.  Or a demand may be made orally over the telephone. In that case it is made and received simultaneously and it may be right to regard it as made at one time but in two places, as counsel for the Crown suggested.  When the demand is made in writing, as in this case, it will usually be made at one time and place and received at another time and place.  If the intended victim is blind or illiterate, the demand is nonetheless made and first made, in our opinion, not when it reaches the victim but when it leaves the demander beyond recall on its way to the intended victim whom it will reach in the ordinary course of things.”  (our emphasis)

42.  In our judgment, the applicant having made his demand over the telephone, it was made at one time but in two places, one of those places being Hong Kong.  The demand was therefore made within the jurisdiction.

43.  That being the case, contrary to Mr Patterson’s submission, the Criminal Jurisdiction Ordinance does not apply.  But even if we are wrong in that regard, s.3(3) of the Criminal Jurisdiction Ordinance has application.  S.3(3) confers jurisdiction if any ‘relevant event’; that is, an event which is required to be proved to obtain a conviction, took place in Hong Kong.  For the reasons we have set out earlier, the demand was made in Hong Kong.  In summary, we are satisfied that under both the common law and the Ordinance there was no jurisdiction bar to the applicant’s conviction.

44.  This same reasoning would apply to the conviction for criminal intimidation.

45.  We turn finally to the contention made on behalf of the applicant that the judge wrongfully inhibited defence counsel’s cross-examination of X concerning the allegation that the photographs of X taken in Shenzhen did not appear to show certain injuries apparent in later photographs taken by a police photographer.  There is no merit in this ground of appeal.

46.  Whether the injuries could be seen in the Shenzhen photographs was a matter of opinion, a matter therefore for submission.  As the judge correctly pointed out, the photographs were not enlarged nor were they of good quality.  Nor indeed was there any forensic evidence that the marks of injury, which would have been very fresh when the Shenzhen photographs were taken, would have been so apparent at that early stage.  In short, cross-examination of X as to whether she could see the injuries on the photographs took matters no further.

47.  For the reasons given, this application for leave to appeal is allowed and, treating the hearing as the appeal, the conviction on the second charge of blackmail is set aside.

48.  The sentence imposed on the second charge was one of two years and six months’ imprisonment of which only three months was ordered to run consecutively to the remaining sentences.  The setting aside of this sentence reduces the total sentence to be served by three months to one of three years and five months.