HKSAR v. TSANG FUK WING

CACC 91 /2021

[2022] HKCA 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 91 OF 2021

(ON APPEAL FROM DCCC NO 354 OF 2020)

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J U D G M E N T

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1.  The applicant, who was D1 at trial, was tried in the District Court, together with D2, on a joint charge of the blackmail of X, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210. Having pleaded not guilty, both the applicant and D2 were nevertheless convicted after trial by HH Judge Dufton (“the judge”). On 12 April 2021, the applicant was sentenced to 2 years and 5 months’ imprisonment. He now seeks leave by counsel to appeal against both his conviction and sentence. D2 had originally applied for leave to appeal against both conviction and sentence but, on abandoning both applications, his appeals have already been formally dismissed.

The prosecution case

2.  The allegation against the applicant was that between 11 May and 22 May 2019, he and D2 acted as part of a joint enterprise to blackmail X.  Three continuing instances of blackmail were alleged: on 11 May 2019, in relation to X’s younger brother (“Y”); and, on 16 and 22 May 2019 in respect of telephone messages sent to X.

3.  X testified that he and a Mr Soo had known each other since 1965 and were former business partners.  In July 2004, when X was about to stand for public office in Hong Kong, Mr Soo demanded money from X, prompting X to pay Mr Soo in order to pre-empt any difficulties which might affect his standing for office[1].

4.  It should be noted that Mr Soo unfortunately passed away on 7 March 2020.  The judge said of this fact, “I direct myself as to the impact of the death of Mr Soo on the conduct of the defence”[2], and made reference to the authorities of R v Holgate (No 1)[3], as applied in HKSAR v Law Yik Lun[4] and HKSAR v Chan Kong On[5].

5.  X testified that in about 1990, he and Mr Soo entered into a business agreement involving a real estate project in Beijing (“the project”).  X appears to have played a passive role in the business and did not pay attention to the ordinary dealings of the project.  He could not remember when the project was completed, only that it dragged on for a long time, possibly concluding in 2002 or 2003.

6.  In 2016 and 2017, Mr Soo made further financial demands of X, which he paid since he was the holder of public office at the time[6]. The two men then drew up an agreement (Exhibit P3B), following which X told Mr Soo that he owed him nothing further in respect of the project.  Both men signed this agreement[7].  However, in August 2017, Mr Soo asserted that the exchange rate had been incorrect and demanded that X pay a further $200,000.  X agreed to pay this sum and the two men drew up another agreement (Exhibit P4B)[8]. X was not able to remember whether he paid the $200,000 at the time of signing the document, or thereafter[9].

7.  On 9 April 2019, X and Mr Soo met at a cafe where Mr Soo demanded yet more money.  However, X insisted that they had already signed an agreement stating that they owed each other nothing further[10].

8.  X’s brother, Y, testified that on 11 May 2019, he was exercising near his home when he was approached by four people: the applicant, D2, a female named Ng Hoi Yan (“Ng”), and a male named Leung Ka Fai (“Leung”).  Y took photographs of two of the men in the group (Exhibits P20 & 21)[11].  It was admitted that the male in Exhibit P20 was D2 and the male in Exhibit P21 was Leung.  Y was then told to pay the money he allegedly owed Mr Soo; after which the group followed Y to his home[12]. Y did not know what the matter was about and, accordingly, informed X, who was in Japan at the time.  CCTV footage showing the movements of those concerned on 11 May 2019, and a transcript of a conversation caught on video between the applicant, D2 and Y (Exhibit D1A), were admitted by way of admitted fact evidence[13].

9.  On 15 May 2019, X received a number of calls on his mobile telephone from people he did not know.  That afternoon X sent an SMS to Mr Soo telling him that “his old habits die hard” and that “doing this like triad members would not benefit him”[14].

10.  On 16 May 2019, D2 sent a message to X with X’s photograph and a caption “Notice of Missing Person”, with an accompanying message explaining, “It is right and proper to pay up your debt”.  The message further stated that X was “a beast in human clothing who gained fame by deceiving the public” and asking anyone who saw X to call the Apple Daily newspaper where they would be met with a generous offer of reward[15].

11.  On 22 May 2019, D2 sent a text message to X accompanied by two photographs depicting where X worked; and telling X to call, otherwise the dispute would be made public[16].

12.  Two voluntary video records of interview (“VRI”) of D1 were introduced into evidence by way of admitted fact (Exhibits P16 and P17)[17], as well as one VRI of D2 (Exhibit P18).

The defence case

13.  Neither defendant gave evidence.  However, the applicant relied on what he had said in his VRI’s, which was to the following effect: on 11 May 2019, he was merely helping a friend to find X in order to pass on a message for him to contact Mr Soo about repaying a debt; he helped voluntarily without receiving any money or reward; he did not make any threat or blackmail and had no further involvement after 11 May 2019[18].

14.  Counsel for the applicant, as well as counsel for D2, submitted that X was not a credible witness.  However, the judge found it was not surprising that X could no longer remember details of what happened in 2003 and 2004, including details of his shareholdings in various companies. Nor did the fact that X had apparently destroyed documents relating to the project cause the judge to doubt events which had occurred in 2016, 2017 and 2019[19].

The reasons for verdict

15.  The judge did not find the applicant’s explanations credible. In particular, he did not find it believable that on 11 May 2019, the applicant was merely helping to pass on a message without reward.  He relied on the CCTV footage which demonstrated that the applicant was outside Y’s home when he left to go and play basketball and that the applicant then followed Y together with Ng.  He explained that if the applicant was only just helping to pass on a message, there was no need for Y to have been followed and approached by four persons[20].

16.  The judge rejected the applicant’s explanation that he did not know Ng; or that he did not have any means of contacting her; or that he did not know the telephone number 6728 6418, which was the telephone number, admitted in evidence, used solely by Ng[21].

17.  The call records between the applicant’s and Ng’s telephone numbers for the period between 5 to 17 May 2019 were also admitted into evidence[22]. The judge noted that these records showed telephone calls between the applicant and Ng on 9 and 10 May 2019; and, further, that between 6:45 and 7:04 am on 11 May 2019, which was just prior to the applicant being seen outside Y’s home, he had called Ng four times[23].

18.  Also admitted into evidence were seven photographs of X (Exhibit P11) stored on the applicant’s mobile telephone[24]. The judge rejected the applicant’s claim in his VRI’s that he ignored the photographs which had been sent to him from a number he did not recognise[25].

19.  As for the message found on the applicant’s telephone stating “It is right and proper to pay up your debt”, the judge did not find it credible that the applicant should have paid no attention to it, or that he did not ask D2 why he had sent the photograph because he was no longer concerned with matters in relation to X[26].

20.  Also admitted into evidence was the fact that D2 had sent an image of a note captioned “Notice of Missing Person” to X at 5 pm on 16 May 2019 (Exhibit P5)[27].  The judge described the note as showing a photograph of X, which was the same as an image found on the applicant’s telephone; while the content of the note was similar to the content of the note found on the applicant’s telephone[28].

21.  The judge relied on telephone records as revealing close contact between the applicant, D2 and Mr Soo before D2 sent the note (Exhibit P5) to X at 5 pm on 16 May 2019[29].

22.  The judge concluded that no weight was to be attached to the applicant’s explanations in his VRI’s, which were not made on oath, nor repeated on oath or tested by cross examination[30].  He was satisfied that a demand for money was made on 11 May 2019; a demand which was repeated in the messages sent to X by D2 on 16 May 2019 (Exhibit P5) and on 22 May 2019 (Exhibit P6)[31].

23.  The judge was satisfied that the following evidence amounted to menaces:

(i)     Y was approached and followed by four people so as to put pressure on X to pay money to Mr Soo[32];

(ii)     the message sent by D2 on 16 May 2019 containing the “Notice of Missing Person” (Exhibit P5) together with the accompanying photograph and the number of Apple Daily newspaper was further designed to put pressure on X[33];

(iii)     the message sent by D2 on 22 May 2019 (Exhibit P6), in which photographs of where X worked were attached, stating that if X did not call “the company”, the message would be forwarded to the media, was also designed to put further pressure on X[34].

24.  The judge was satisfied that the demands were unwarranted and that neither the applicant nor D2 had reasonable grounds for making the demands of 11 May 2019, or those contained in messages on 16 May and 22 May 2019[35]. The judge was also satisfied that the demands were made with a view to gain[36].

25.  The judge was sure that the applicant and D2 shared a common intention to blackmail X, holding[37]:

“On 16 May 2019 prior to D2 sending the note to X at 17:00 hours, D2 called D1 twice at 15:54 and 15:56.  D1 then called Mr Soo at 15:57 which call lasted 381 seconds, just over 6 minutes.  D1 then called D2 twice at 16:04 and 16:12.  The image of a note titled “Notice of Missing Person” was sent by D2, using telephone number 6580 5417, to X 48 minutes later at 17:00.

Although there is no evidence linking D1 with the image sent by D2 to X on 22 May 2019 (exhibit P6), having carefully considered all the evidence and taking into account D1 on his own admission arranged D2 to go with him on 11 May; told D2, Ng Hoi Yan and the other male what to say; the finding of the images on his mobile phone and the telephone records between D1, D2 and Mr Soo, I am satisfied so I am sure the only inference to draw is that D1 and D2 shared a common intention to blackmail X and were party to a joint enterprise to blackmail X.”

The reasons for sentence

26.  The judge noted that there were no sentencing guidelines for blackmail offences, and that each case depended on its own facts and circumstances.  The judge referred to HKSAR v Fong King Choi[38], which was concerned with the obtaining of protection money from a shopkeeper.  The Court of Appeal in that case listed a number of factors bearing on the gravity of the offence, including: (i) the nature and amount of the demand; whether the demand was for a one-off or regular payment; (ii) the nature and circumstances in which the demand was made, whether the offender acted alone or with others, whether the demand was made on a single occasion or on repeated occasions, whether there was actual or threatened violence to a person or property, whether there was an express or implied triad connection, or whether it was part of a sustained campaign of intimidation against other victims; and (iii) the consequences of the demand and its effect on the victim, whether the victim yielded to the demand for extortion money and whether any loss was suffered.

27.  The judge explained that he was satisfied these factors equally applied to other demands for money and not just to cases concerning demands for protection money[39].

28.  Having taken into account all the circumstances, the judge was satisfied that a starting point of 2 years and 6 months’ imprisonment was appropriate.  This he reduced by 1 month for the applicant’s donations and voluntary work, including his kindness in adopting a bull dog[40]. This made for a resulting sentence of 2 years and 5 months’ imprisonment.

The application in respect of conviction

Ground 1

29.  Mr Jeremy Cheung, on behalf of the applicant, argues that the judge erred in law in finding that the circumstances occurring between 11 and 22 May 2019 gave rise to the offence of blackmail.  He submits that the judge failed to recognise that no demand in respect of any monetary figure had ever been mentioned, and suggests that the messages between the applicant and Mr Soo demonstrated that the applicant was only a conduit for conveying Mr Soo’s messages.  Mr Cheung contends that whether or not the demand was unwarranted turned on whether or not the applicant believed the demand was unwarranted.

Ground 2

30.  It is argued that the judge did not explain how Mr Soo’s demand for the repayment of a legitimate debt could be said to be an unwarranted one[41], particularly when the defence were handicapped by Mr Soo’s non-availability.

Ground 3

31.  It is submitted that the conduct found by the judge to be menacing was not, in fact, menacing, since the applicant was asserting a genuine demand for repayment on behalf of Mr Soo.

Ground 4

32.  It is asserted that a factor of prime importance in a blackmail case is the secrecy of the transaction.  Accordingly, the fact that the applicant did not utter any threats and allowed his photograph to be taken by Y suggested that he honestly believed that he was not acting improperly when making the demand.

The application in respect of sentence

33.  Mr Cheung contends that, at worst, the applicant’s conduct constituted a nuisance, alternatively an annoyance, to X or his family members[42]; furthermore, there was no violence used.  Accordingly, the sentence was manifestly excessive.

The respondent’s submissions on conviction

Ground 1

34.  The respondent, represented by Mr Ira Lui, notes that the charge alleged an unwarranted demand for a “sum of money”; as such, proof of a specific amount was not necessary.  He argues that demands were undoubtedly made for money, not for further negotiation.  And as could be seen from his past demands, Mr Soo was never precise in his demands.

35.  Mr Lui submits there was no evidential basis at all for any honest belief by the applicant, since neither the applicant nor D2 elected to testify as to what was actually in their minds; nor were any witnesses called on that issue.  Furthermore, the mere fact that an accused believes he is legally entitled to what he demands does not render that demand a warranted one.  It must also be accompanied by a belief that the use of menaces is proper.

Ground 2

36.  Mr Lui argues that the applicant has failed to identify any prejudice occasioned to him as a result of the inability to call Mr Soo at trial.  There was nothing to suggest that Mr Soo had in fact given a witness statement to the defence before trial but could not then be called.  He further informs the Court that he has examined Mr Soo’s two cautioned statements to the police, which were disclosed to the defence prior to trial.  There was nothing in either statement capable of assisting the applicant on the issue of his intention.

37.  Mr Lui notes that it was the judge himself, who first raised the issue of Mr Soo’s absence.  He then directed himself in the appropriate terms.  Neither the applicant nor D2 had made any application for a stay of proceedings due to Mr Soo’s unfortunate absence from the witness box.

Ground 3

38.  Mr Lui submits that any demand made with menaces would be ‘unwarranted’ unless an accused was able to bring himself within both subsections (a) and (b) of section 23(1) of the Theft Ordinance.  On the evidence, the applicant could rely on neither subsection.  Furthermore, it was highly significant that in neither of the applicant’s two VRI’s was there any assertion that he believed his use of menaces was proper; rather, his case was a bare denial of his involvement in the incidents on 16 and 22 May 2019.

39.  Mr Lui contends that it is well-established that the word ‘menaces’ should be liberally construed, and that, viewed objectively and in context, the behaviour of the applicant (and his group, including D2) clearly amounted to menaces.

Ground 4

40.  Mr Lui argues that this point is unconvincing: not all blackmailers conduct their business in secret.  He further submits that, depending on the circumstances, demands made openly and in a ‘normal’ and ‘civilized’ atmosphere can still amount to blackmail[43].

Respondent’s submissions: sentence

41.  Mr Lui has drawn to the court’s attention the following features present in this case: the demands, which escalated in their gravity, were repeated over a period of 11 days; the applicant was acting in concert with others; there were thinly veiled threats to tarnish X’s reputation and his home was identified; the threats would have caused X to worry about his safety; the offending was premediated and involved active recruitment of others as well as using an untraceable pre-paid telephone SIM card; and, the applicant’s role was prominent, he having recruited D2 who, in turn, recruited Ng and Leung.

42.  Mr Lui submits that the starting point of 2½ years’ imprisonment was considerably lower than other typical extortion cases with triad overtones.  He suggests that the starting point in such cases can easily be in the region of 4 years’ imprisonment, even in the absence of actual violence[44].

Consideration

Conviction

43.  I shall address Grounds 2 and 3 first.

44.  In respect of Ground 2, I do not see how the defence were prejudiced by the untimely death of Mr Soo.  Certainly, no application for a stay of proceedings on the basis that a fair trial of the defendants was impossible without Mr Soo’s evidence was ever mounted, notwithstanding that the applicant and D2 were represented by experienced counsel and solicitor respectively; indeed, it was never even suggested that Mr Soo might have been a defence witness.  Moreover, since the applicant claimed in his 1^st VRI that his connection with Mr Soo was minimal[45], the suggested defence of honest belief, which is now put forward, was hardly a viable one; certainly not in the absence of the applicant’s own evidence on the matter.  This ground of appeal is not reasonably arguable.

45.  This brings me to Ground 3.  Since the applicant (and D2) did not give evidence, nor did they call any witnesses, it cannot sensibly be open for the applicant now to argue that he believed, on the assumption that there was a demand with menaces, that he had both reasonable grounds for making the demand and that the use of menaces was a proper means of reinforcing that demand.  There was simply no or no sufficient evidence of his subjective belief nor was there a sound basis for any objective belief.  As Mr Lui points out, the applicant never suggested in his VRI’s that he believed the use of menaces was proper; indeed, he denied any knowledge of the events of 16 and 22 May 2019. Ground 3 is not reasonably arguable.

46.  I come, therefore to Grounds 1 and 4.  I am not entirely clear what Ground 1 is actually saying, since it appears to be a conflation of different matters of law (Grounds 1(a), (d) and (e)) and different matters of fact (Grounds 1 (b) and (c)).  With respect, a ground of appeal should explicitly relate to a single, specific point of complaint and avoid factual argument other than on an appropriate occasion to ground the point in issue.  It should not be necessary to indulge in sub-grounds of appeal, as is so often now the current practice, except perhaps where an alternative is being put forward to the main ground.  

47.  As pleaded, Ground 1 seems to be suggesting that there was neither a demand nor menaces in law for a variety of disparate factual reasons concerning the circumstances themselves and the applicant’s state of mind.  If this is what is being put forward, I would refuse leave to appeal.  Not only is this not a properly drafted ground of appeal and it is unclear what the real point of contention is, but it is not reasonably arguable that there was neither a demand nor menaces on the entirety of the evidence. 

48.  If, on the other hand, what counsel is suggesting is that there was insufficient evidence to show to the required standard the applicant’s complicity in a joint enterprise to blackmail the victims, given his limited early role, then I would regard the ground as reasonably arguable.  In support of that specific ground, the applicant will be at liberty to advance, ordinarily by way of written submission, factual propositions such as the lack of any mention of a monetary figure on 11 May 2019, the absence of any specific threat and the openness of the applicant’s dealings with Y on 11 May 2019 (which is actually Ground 4), and the absence of the applicant from events on 16 and 22 May 2019.  The respondent will then no doubt join issue with that proposition and endeavour to show how the facts point to the required standard to the applicant’s involvement in a joint enterprise by reference, for example, to CCTV evidence, telephone records, exchanges and messages, as well as to circumstances which they say indicate the true meaning and purpose of what was taking place.

49.  With respect, defence counsel should focus on drafting grounds of appeal they consider to be properly arguable and articulate them in a specific and intelligible way, which the Court can understand and will allow the respondent to engage in reply.  Perfected grounds of appeal are not a written argument.  It is somewhat extraordinary that nowhere in the Perfected Grounds of Appeal, as they stand, is there any mention, for example, of the concept of “joint enterprise”, if it is now being submitted that the applicant was not party to any demand or menaces either on 11 May, when he was present, or 16 and 22 May, when he was not.

50.  As I have just touched on, Ground 4 is really a factual argument in support of the main ground which I have articulated above; as Mr Cheung obviously recognises because he has combined it with Ground 1 when dealing with it in his written submission.  It is not a standalone ground of appeal in itself, but it is an argument the applicant may employ in arguing his essential point of complaint as I have characterised it.

51.  Accordingly, I refuse leave to appeal against conviction on Grounds 2, 3 and 4 as they stand.  I also refuse leave to appeal on Ground 1 as presently pleaded because I do not know what it is really saying.  I would invite counsel to draft an amended ground of appeal in accordance with this Court’s advice at paragraph 48 above, within 7 days of receipt of this judgment.  On that basis, and only on that basis, I would grant leave to appeal against conviction.

Sentence

52.  In respect of the application for leave to appeal against sentence, I do not regard it as reasonably arguable that a sentence of 2 years and 5 months’ imprisonment was manifestly excessive in the circumstances.  Indeed, if the applicant was a participant in a joint enterprise as alleged, it is arguable that the sentence could have been more than 3 years’ imprisonment after trial.  Blackmail is a very furtive and insidious offence, in which the victim will never really know what will happen if he or she does not comply with the demand.  That is particularly so where the victim’s fears, as a former holder of public office, are subtly exploited.

53.  I refuse leave to appeal against sentence.

54.  The applicant should be advised that I have only granted leave to appeal against conviction on the basis set out in Paragraph 51 above.  Nevertheless, the applicant is of course entitled to renew his other grounds of appeal against both conviction and sentence but he should understand that if he does so, the Court has the power to order the loss of any time which he has spent in custody pending his appeal, if it were come to the conclusion that there was no justification for the renewal of those grounds of appeal against conviction or no justification to renew his application for leave to appeal sentence.

[1] Appeal Bundle (“AB”), p 46E-R.

[2] AB, p 64A-D.

[3] R v Holgate (No 1) [1996] 3 HKC 315.

[4] HKSAR v Law Yik Lun [2001] 1 HKLRD 676.

[5] HKSAR v Chan Kong On [2011] 2 HKLRD 1085.

[6] AB, p 48D-F.

[7] AB, p 48F-H.

[8] AB, p 48M-P.

[9] AB, p 49D-F.

[10] AB, p 49K-N.

[11] AB, p 51A-D.

[12] AB, p 51M-P.

[13] AB, pp 14-15, at [22]-[24].

[14] AB, p 54O-R.

[15] AB, p 42L-O.

[16] AB, p 42P-R.

[17] AB, pp 15-16, at [25]-[26].

[18] AB, p 64K-N.

[19] AB, p 73F-K.

[20] AB p 64O-65E.

[21] AB, p 10 at [6].

[22] AB, p 19, Annex IV.

[23] AB, p 65I-N.

[24] AB, p 65O-Q.

[25] AB, p 66A-E.

[26] AB, p 66I-L.

[27] AB, p 11 at [11].

[28] AB p 66M-Q.

[29] AB p 67B-O.

[30] AB, pp 67R-68D.

[31] AB p 75J-L.

[32] AB p 76P-S.

[33] AB, p 78G-R.

[34] AB, p 79E-K.

[35] AB, p 81A-U.

[36] AB, p 82E-G.

[37] AB, p 84D-N.

[38] HKSAR v Fong King Choi [2020] 2 HKC 219.

[39] AB, p 89N-P.

[40] AB p 91A-I.

[41] Applicant’s Perfected Grounds of Appeal at [4].

[42] Applicant’s submissions at [11].

[43] See HKSAR v Law Kwok-sang [2002] 3 HKC 496.

[44] See HKSAR v Cheung Wan Ing [2000] 3 HKC 762, at pp 764D-766B; HKSAR v Lui Chun Yeung [2014] 2 HKLRD 993, at pp 6-9.

[45] AB, p 59M-Q.