CHAN WING SHING and Another v. R.

IN THE COURT OF APPEAL

1994, No. 129
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The appellant Chan Wing-shing was convicted after trial before Wong, J. and a jury on one count of blackmail and was sentenced to four years' imprisonment.

2. The evidence for the prosecution was that on 24 March 1993, a 19 year old youth went to the Jai-alai Casino in Macau to gamble. Having lost $4,200, which was all the money that he had with him, he was approached by the appellant and another man and offered a loan of $10,000. After some hesitation, the youth agreed to borrow $5,000. The appellant told him to wait outside the VIP room while he, the appellant, went inside the casino to gamble for the youth in the expectation of winning. Soon afterwards the appellant returned and told the youth that he had gambled for him and had lost $70,000. When the youth remonstrated with the appellant that the loan had only been for $5,000 and that he had not been allowed inside to watch what had been happening, the appellant insisted that the loan had been one of $70,000 and that that money had been lost. The appellant told the youth that if he did not repay the $70,000 he would be given a good beating. Being very frightened, the youth decided not to argue any further about the matter.

3. The other man then took the youth to a herbal tea shop where they met some more men. The appellant sent one of these men to buy ferry tickets. After which the appellant and another man took the youth to the ferry pier where they boarded a ferry for Hong Kong. On board the ferry the appellant handed the youth a piece of paper with a paging number written upon it and told him to page him if he could pay the money on the following day.

4. On arrival in Hong Kong the group were met by two more men. They all then set off to the youth's home by taxi. There they met the youth's brother. After some conversation during which the brother agreed to pay the money demanded, they all went to a cafe to discuss the matter further. The youth, who was seated at an adjacent table, overheard the appellant and his companions tell his brother that if he did not pay the money into a bank account the appellant would do something to him.

5. The youth's brother testified that at the cafe he had confirmed that he would pay the money demanded. He was then told by the appellant that if he paid immediately, he would only need to pay $70,000, but that if he delayed payment to the following day he would be required to pay $87,000.

6. The appellant then wrote down the number of a bank account and the holder's name and gave it to the youth's brother. He told him that, if he did not pay the money, he, the applicant, did not mind because he knew where the brother lived and that if anything happened to him, he should not blame the appellant. he added that he might do something to the brother's family if he did not pay.

7. The appellant was subsequently arrested and under caution admitted that the paging number written on the piece of paper given to the youth on the ferry was his. However, he said that he had handed it to the youth following the youth's request that he be given employment at the casino or as an escort for people who owe money and who are obliged to return to Hong Kong to obtain funds to make repayment.

8. According to the version of events given by the appellant in the cautioned statement which he gave to the police, he himself had gone to Macau to gamble but had lost. He had then gone to a herbal shop where he met an acquaintance named Ah Moon. Ah Moon asked the appellant to accompany him in escorting the youth to his home in Hong Kong to recover money which the youth had lost at gambling. For this service the appellant was to receive $500. The appellant agreed to do so. He agreed that although he was present at the meeting at the cafe, he insisted that he had remained silent throughout the discussions. It was Ah Moon who had done all the talking.

9. At the trial the appellant elected not to give evidence. The sole ground of appeal advanced by Mr Wan, who appeared for the appellant both in this court and in the court below, is that the judge erred in law in directing the jury as follows:

"It is stated in the admitted facts that the accused has a clear criminal record. It is neither here nor there. It only goes to his credibility and that is whether you'll believe him or not if he gives evidence, but in this case he has not given evidence."

10. Mr Wan submitted that, on the contrary, the judge should have directed the jury that the appellant's previous good character was relevant both to the unlikelihood of his having committed the offence and to his credibility when they were considering what weight they should give to his evidence as presented in his cautioned statement. The judge having failed to do so, the conviction is both unsafe and unsatisfactory.

11. Where there is evidence of the accused's clear record, we think that there is considerable force in the view that, even where the judge fails to give a direction as to the effect of the clear record, it would be a very dense jury indeed that did not understand that they must take the evidence of good character into consideration in deciding not only whether the accused committed the offence charged but whether his testimony or his statement to the police are more likely than otherwise to be credible. However, it is one thing for a judge to omit giving a direction to the jury as to the effect of an accused's clear record but entirely another to tell them that the clear record is neither here nor there. To give such a direction has the effect of depriving the accused of the benefit of having the jury taking his good character into consideration when determining what weight they should give to his testimony or unsworn explanation and whether he committed the offence.

12. The passage complained of was a serious misdirection. In the circumstances of this case we have come to the conclusion that the verdict is unsafe and unsatisfactory. We therefore allow the appeal, quash the conviction and set aside the sentence.

13. The applicant Lam Wai-man, who was jointly indicted with Chan Wing-shing, pleaded guilty to the blackmail count and to an additional count of arson. He was sentenced to two years on the blackmail count and to a consecutive sentence of five years on the arson account.

14. The admitted facts were that at about 11pm on 26 March 1993 Mr Lee, the father of the youth and his brother in the blackmail case, was awaken by the sound of paint being sprayed. On going to the front door of his flat, Mr Lee saw two men standing outside. One of the men said "Fuck your mother. Repay or we'll set fire and burn you people to death." With that, the two men ran off.

15. Four days later, at about 4am on 30 March 1993, Mr Lee and his family were awakened by the sound of an explosion. On rushing out to investigate, Mr Lee found that the front door of the flat was ablaze. He saw two men running from the scene. After the fire had been extinguished, Mr Lee discovered some bottles bearing traces of petrol outside the flat.

16. The applicant was later arrested. He admitted that he had been one of the two men who had been involved in the incident of the 26 March, but denied that he had uttering the threatening words. He also admitted that he had acted as a look-out when two other men had started the fire on 30 March by using beer bottles filled with petrol.

17. The applicant contends that because he had not played a significant role in the commission of the offences, that no one had been injured and that he had a clear record, his sentences are too heavy. We do not agree. These were calculated and planned offences, one of which had plainly endangered the lives of innocent people. Blackmail and arson are crimes that merit heavy sentences, especially when arson is committed in an attempt to reinforce blackmail demands. We would not be justified in interfering with the sentences imposed. The application for leave to appeal against sentence is therefore refused.