THE QUEEN v. CHENG CHUNG HAI

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J U D G M E N T

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Hon. Yang, C.J.:

1. The applicant and his co-accused were convicted of Blackmail. In addition the applicant was also convicted of Theft He now seeks leave to appeal against those convictions.

The Crown's Case on the Blackmail Charge

2. The victim in this case is a horse trainer by the name of Kam Kwong-tat ("Kam": PW1). In January 1987 the applicant suggested to Kam that he would hand over a horse to Kam for training in return for a "punting" arrangement whereby Kam would give him "tips" for likely winners for the applicant to bet on and they would share the winnings, if any. Kam refused.

3. There was no further contact between Kam and the applicant until 10th February 1987, when the applicant telephoned Kam and angrily demanded a meeting. Kam also heard threats uttered by another person over the telephone that if Kam did not go he would be beaten up.

4. On the advice of a man whom Kam called his "sworn father", Kam met with the applicant on the 10th February in the coffee shop of the Excelsior Hotel. Kam was accompanied by a man called "Ma Chai" who acted as Kam's bodyguard and witness. At the meeting Kam saw the applicant and his co-accused together with many men. The applicant accused Kam of giving him bad tips and demanded compensation. Kam refused, saying he had not given any tips and even if his tips had reached the applicant he bore no responsibility. The applicant then said, in a ferocious tone, he (Kam) had better think it over carefully and asked whether Kam wanted to be "round or flat". The co-accused added that he too had lost money and they should be compensated. Kam took the expression "round or flat" to mean being beaten up.

5. The applicant then demanded a "$20,000 bet on a sure win quinella", an expression Kam took to mean that he would have to invest $20,000 in quinellas until he won and then pay over the winnings. When the applicant said this was impossible, the applicant repeated his reference to "round or flat" and another member of his group threatened to beat Kam up.

6. In desperation Kam contacted his friend Ms. Yu (PW4) to come to the meeting to support him. She came. In response to Ms. Yu's query, the applicant said,"While I am here nothing will happen to Ah Tat", meaning Kam. She was dismissed by the applicant and/or Kam after a short while.

7. The atmosphere at the meeting has been described by independent witnesses as "acrimonious".

8. Kam then said he would telephone the applicant the following day, and the group left.

9. The Crown's Case on the Theft Charge

10. On the 11th February, Kam telephoned the applicant and offered $20,000 in cash to settle the matter. At first the applicant said the sum offered was not enough, but later demanded $60,000. Kam agreed. A meeting was arranged.

11. At the meeting, Kam handed the applicant an envelope containing $60,000 which he had earlier withdrawn from the bank. Kam's friend, a Mr. Leung (PW3), watched from across the street the handing over of the envelope to the applicant.

The Defence

12. The applicant did not give evidence, nor did he call any witnesses. Defence counsel submitted that the two charges stood or fell on the evidence of PW1.

Grounds of Appeal

13. Five particularized grounds were advanced, viz.: that (1) the judge failed to evaluate Kam's evidence; (2) the judge erred in his assessment of the discrepancies between Kam's evidence and his statements to the police; (3) the judge failed to evaluate Ms. Yu's evidence and accordingly failed to appreciate its significance in relation to Kam's evidence; (4) the judge failed to appreciate the extent to which Ms. Yu's evidence impinged on Kam's credibility; and (5) the verdicts were unsafe and unsatisfactory.

14. Leading counsel for the applicant has taken us through the evidence and the Reasons for Verdict in detail. He draws our attention to the inconsistencies in the evidence, particularly the inconsistencies between Kam's evidence and Ms. Yu's, and between Kam's evidence given at the trial now under consideration, at a previous trial, and in his statements to the police.

   We do not propose to deal with these complaints in detail. Suffice it to say that we have given careful consideration to counsel's submissions.

15. Counsel made much of the suggested discrepancy between Kam and Ms. Yu as to the existence or otherwise of a "punting" arrangement.In our judgment, a careful reading of the Reasons for Verdict shows clearly that the judge was of the view that there was no such arrangement and we do not accept that in saying so the judge was only reviewing the evidence. we consider that was a clear finding of fact.

16. In our view the judge has considered the evidence with care and he assessed the credibility of Kam, Ms. Yu and Mathew Leung in detail. He was certainly aware of the discrepancies in the evidence.

17. In our view he was perfectly entitled to conclude that Kam and the other witnesses were unshaken on the fundamentals of their evidence and that any inconsistencies were the result of slightly different perception. The essential facts as the judge found them were that the meeting on the 10th was not just one of acrimonious and disgruntled punters; that the two accused acting in concert made an unwarranted demand with menaces of Kam; that the menaces were both express and implied by the assembled show of force of numbers; further that on the next day the applicant received $60,000 from Kam in circumstances amounting to theft.

18. Nothing that counsel has said on behalf of the applicant causes any doubt in our minds that the judge arrived at the correct verdicts.

19. The application is accordingly refused.