THE QUEEN v. CHU HAK KIM AND OTHERS

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JUDGMENT

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Fuad, J.A.:

1. On the 25th February this year, the four Applicants were all convicted on a joint charge of blackmail in the District Court by His Honour Judge Downey. The 1st Defendant was sentenced to 15 months' imprisonment and the other three to 6 months' imprisonment each. The 1st Defendant was also convicted of claiming to be a member of a triad society and sentenced to 6 months' imprisonment, to run concurrently with the longer sentence. They now all seek to appeal against their convictions, but not against their sentences.

2. The facts found by the learned Judge, which are set out in his Reasons for Judgment, were that on the 30th December last year the 1st Defendant had gone into the "Pavilion Restaurant" in Lai Kok Estate and sat down at a table which turned out to have been reserved for others. When told of this fact by someone working in the restaurant, the 1st Defendant moved to another table.

3. On the next day, early in the morning and shortly after the restaurant had opened for business, the 1st Defendant went into the restaurant and sat down alone at the same table from which he had been asked to move the day before. About 10 so-called "friends or colleagues" of the 1st Defendant came in at about the same time and sat down, each of them at a different table. The captain of the restaurant, a Mr. Hui, spoke to the 1st Defendant and apologized profusely to him for the incident of the previous day and asked him to give the restaurant a chance and to forget about the matter. The 1st Defendant seemed to have accepted the apology; he asked his friends to leave and then paid the $520 bill for the refreshments they had all consumed.

4. The 1st Defendant continued to sit at his table where he had been joined, by about 10 o'clock in the morning, by the other three Defendants. As they all sat there the 1st Defendant asked who was in charge of the restaurant, enquiring "who was in the position  to take decisions". Mr. Hui answered that the proprietor of the restaurant had not yet arrived for the day. The 1st Defendant then asked if there were any people doing "overseeing" work, which Mr. Hui understood to mean men employed "to keep the peace". Mr. Hui told the 1st Defendant that the restaurant had been in operation for three years and they had not found it necessary to employ anyone to do that kind of work.

5. The 1st Defendant, the learned Judge also found, then asked for "Lo Mo", which is "lucky" money, but did not say how much he wanted. Mr. Hui telephoned the proprietor who came with police officers who had beer alerted. Acting on instructions, Mr. Hui had put $500 into a red paper envelope. He offered it to the 1st Defendant who asked how much was in the envelope. When the 1st Defendant heard how much, he said words to the effect "forget it" and refused to take the packet. He then got up to leave but was arrested by the police officers, as were all the other Defendants.

6. The learned Judge accepted the evidence of a waiter, Mr. Shing, who said that he had heard the 1st Defendant tell Mr. Hui during the conversation "we are Shui Fong" although Mr. Hui himself did not testify that he had heard these words. On the basis of expert evidence from a police officer, the Judge accepted that these words were a reference to the Wo On Lok Triad Society.

7. It was formally admitted on behalf of all the Defendants that the 2nd, 3rd and 4th Defendants had been sitting with the 1st Defendant from 10 o'clock in the morning until about 1:30 p.m. when they were all arrested. None of the Defendants elected to give evidence, nor did they call any witnesses.

8. As to the captain's failure to testify about what the waiter, Mr. Shing, had heard concerning the triad society, the learned Judge dealt with the matter at some length. He said that he had the opportunity of observing Mr. Hui in the witness box and was satisfied that what he called his "reticence" to give evidence on the matter was due to "some degree of fear or discomfort at having to relate details of his encounter with the 1st Defendant and his associates."

9. Mr. Alderdice, on behalf of the Applicants, has contended that the learned Judge was speculating here and that he had not adequately dealt with the possibility that the omission to testify on this matter by the captain might well have been due to the fact that the words about the triad society were never said at all. But the Judge was obviously aware of the difficulties in this case and accepted Mr. Shing as a completely truthful witness. In the circumstances we are unable to say that he was not entitled to take this view of one witness's testimony then compared with that of another.

10. The evidence as a whole, in our judgment, fully justified the Judge's finding that the 1st Defendant had made a demand with menaces to satisfy section 23(1) of the Theft Ordinance. No One who witnessed the events on that day, if they occurred in the manner accepted by the Judge, could have had any doubt about what was done and intended by the 1st Defendant. A demand by menaces need not be explicit. It may be inferred from what someone says or does. A defendant who behaves in the manner that the 1st Defendant behaved on that day cannot complain if the Judge draws an inference unfavourable to him - an inference that is fully justified on the evidence - when he chooses not to give evidence and say that things were not what they had appeared to be.

11. We have no doubt that the conviction of the 1st Defendant - both as regards the blackmail charge and claiming to be a member of a triad society - cannot be assailed, and his application for leave to appeal in respect of each count is refused.

12. In respect of the 2nd, 3rd and 4th Defendants, this is what the learned Judge said in his Reasons for Verdict:

"       I accepted that D2, D3 and D4 did not take any active part it the conversations between D1 and Mr. Hui. Nor did the evidenco indicate that they took any part in the earlier occupation of separate tables. But, in the absence of any explanation for their presence at D1's table for some 3 hours, I was satisfied that they were there to add support to D1's demands, and to reinforce the implied menace that some form of collective action would be taken against the restaurant, if those demands were not met. Accordingly, I found each of them guilty of aiding and abetting the offence of blackmail committed by D1."

13. It is trite law that mere presence when. a crime is committed does not make a person guilty of aiding and abetting the offence. An abettor must either be present in pursuance of an agreement that a crime is to be committed or give assistance or encouragement in its commission. What must be proved against an abettor is both assistance and encouragement in fact, and also an intention to assist or encourage.

14. It is a question of fact whether his presence was intended as encouragement and whether the main offender knew he was being encouraged. Presence without explanation may be some evidence of aiding and abetting. If presence is not prima facie accidental it is a jury question whether or not it was accidental.

15. The three Defendants may have had an explanation to give for their presence on that day at that table but they did not elect to offer it to the court. Their presence certainly was not accidental on the facts accepted by the Judge and none of the Defendants chose to dissociate themselves from what was going on. The Judge was entitled to draw the inference that they were there aiding and abetting the 1st Defendant.

16. We consider therefore, despite Mr. Alderdice's able arguments, that the applications for leave to appeal against their convictions by the other three Defendants must also fail.