HKSAR v. HO WING KI AND OTHERS

DCCC 567/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 567 OF 2017

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REASONS FOR VERDICT

1.  D1 to D4 are jointly charged with 2 offences of "Blackmail" (Charges 1 and 2) and 1 offence of "False imprisonment" (Charge 3). They each pleaded not guilty to all 3 charges.

The Prosecution Case

2.  The prosecution called a total of 4 witnesses (Madam LONG Hui, Madam LONG Mei, PC 12427 and Mr. LAM).  Madam LONG Hui is the natural mother of Madam LONG Mei.  Madam LONG Hui is the stepmother-in-law[1] of Mr. LAM.

3.  According to Madam LONG Hui, on 5 March 2016[2], she was hired by D2 at $200 to bring some mobile phones from Lok Mau Chau across the border to the mainland.  When passing through Futian Port, she was stopped by China Customs for failing to declare 6 mobile phones in her luggage, which constituted an act of smuggling. As a result, all 6 mobile phones were confiscated.

4.  On 17 March 2016, D2 requested Madam LONG Hui to go to the mainland to pick up the confiscation documents in relation to the 6 mobile phones.

5.  In gist, Madam LONG Hui claimed that in the afternoon on 18 March 2016, at the mainland side of Lok Ma Chau, D1 to D4 demanded her to pay RMB23,000 as compensation of the 6 mobile phones which were confiscated by China Customs.  She was not allowed to leave until payment was received. Eventually, Madam LONG Hui phoned Madam LONG Mei and Mr. LAM respectively asking for help.  Madam LONG Hui claimed that whilst she was on the phone with Madam LONG Mei and Mr. LAM, D2 took her phone and spoke to them as well.  In the same evening, D1 to D4 escorted Madam LONG Hui back to Hong Kong.  Mr. LAM met them at Sheung Shui MTR Station.  When he was handing over $5,000 to D2, police officers apprehended D1 to D4.

6.  It is plain that the prosecution relies primarily on the evidence of Madam LONG Hui, Madam LONG Mei and Mr. LAM.  I will deal with their evidence in more details in the subsequent paragraphs.

The Defence Case

7.  D1 to D4 each elected not to give evidence or call any witness.  This is their right; I drew no adverse inference against them in this regard.

No Case Submissions

8.  Defence counsel Mr. Egan submitted no case to answer in respect of Charge 1. Prosecuting counsel Mr. McGuinniety accepted that the evidence in relation to Charge 1 came solely from Madam LONG Mei.  All her evidence was she received a phone call from an unknown female voice saying that her mother was in China and requesting her to bring 20,000 odd to China.  She was unable to recognize the voice of the caller (whether or not it was her mother) or recall the currency of the 20,000 odd (be it Hong Kong Dollar or Renminbi).  Mr. McGuinniety fairly conceded that there was no case to answer due to insufficient evidence proving an unwarranted demand made with menaces.  I ruled no case to answer and Charge 1 against D1 to D4 was dismissed accordingly.

9.  Mr. Egan also submitted no case to answer in respect of Charge 3 since the 2 video clips[3] clearly speak for themselves.  Mr. McGuinniety submitted that the credibility of Madam LONG Hui should be a matter for the jury.  I ruled that there was a case to answer for D1 to D4 in respect of Charge 3.

Assessment and Analysis of Evidence

10.  The burden of proof is on the prosecution to prove each element of each offence beyond reasonable doubt.  All 4 defendants have a clear record.  I have directed myself on their good character accordingly.

11.  I will deal with Charge 3 first.  As a juror, I am of the view that even if the CCTV footage of Lok Ma Chau Control Point and Sheung Shui MTR Station do not completely disprove Madam LONG Hui's allegation of being restrained by D1 to D4, they at least cast a serious doubt on the truth of this part of her evidence.  I agree with Mr. Egan that the footage showed no unlawful or intentional restraint of her movements whatsoever.

12.  Mr. Egan has also in his final submissions analyzed the evidence of Madam LONG Hui.  I need not repeat the analysis here, suffice it for me to say that the inconsistencies between her evidence in court and her witness statement or other unchallenged evidence (such as travel index records) made her credibility and reliability overwhelmingly doubtful.

13.  Based on the reasons stated above, I find D1 to D4 not guilty of Charge 3.

14.  Regarding Charge 2, the evidence came solely from Mr. LAM.  In the witness box, he said:

"On 18 March 2016, I received LONG Hui's call. She was carrying iPhones to the mainland and the phones were confiscated. Someone demanded her money to redeem the phones. After LONG Hui finished talking to me, another female voice (who claimed herself to be Lan Tse) spoke to me. She said because the phones were confiscated, money had to be paid to redeem her (meaning LONG Hui). If money not paid, don't expect her to come back to Hong Kong."

During cross-examination, it was read to Mr. LAM (and he agreed) that he said in his witness statement:

"At 5:59 p.m. on 18 March 2016, I received a call on my phone from LONG Hui's number. LONG Hui told me that she needed to pay for some goods which were retained by China Customs. A woman then took over the phone and said to me 'LONG Hui is with me now'."

15.  Based on Mr. LAM's evidence, there are 2 reasons why money was needed.  First, what Madam LONG Hui told him.  Basically, she told Mr. LAM that money was need to "redeem the phones" or "to pay for some goods which were retained by China Customs".  I accept that both constituted the same reason - to get back the phones (rather than buying her freedom).  Second, what the female voice told Mr. LAM.  In court, he said the money was "to redeem LONG Hui". In his witness statement, the woman told him "LONG HUI is with me now" (and nothing more).

16.  As a juror, I am bewildered by the reason for needing money told by Madam LONG Hui to Mr. LAM (if she had in fact said so).  When she called Mr. LAM, she knew full well that the phones were already confiscated.  She was never going to get them back.  Why did she not tell Mr. LAM that she needed the money to free herself as she has claimed in the witness box?  Was it because the purpose was simply not so?  Was it because she understood full well her obligation to repay D2 (notwithstanding the enforceability of such a civil liability)?

17.  What the woman had told Mr. LAM over the phone is most crucial.  There are 2 versions. The 2^nd version only came out during cross-examination.  It seems that the woman did not make any demand for money at all, except confirming that Madam LONG Hui was with her.  This inconsistency between Mr. LAM's evidence in court and his witness statement is sufficient to cast a doubt on his credibility and reliability.

18.  Based on the reasons stated above, I find D1 to D4 not guilty of Charge 2.