HKSAR v. CHAN KAM LUNG

HCMA497/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO. 497 OF 1998

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J U D G M E N T

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1. The Appellant is to be congratulated on the detailed and logical manner in which he has put forward his arguments and based them on the evidence given before the Magistrate. This was well done for one so young and with no legal training. Nevertheless, the points which the Appellant has raised were in fact considered by the Magistrate in his Statement of Findings.

2. The Magistrate said that he found PW1 to be an honest and truthful witness, he found him impressive in the witness box, honest and frank and giving a clear account of what occurred. The Magistrate reminded himself of the young age of PW1 and as to the danger of acting on his evidence without any corroboration. He went on to say there were minor discrepancies in his evidence but they were not such that would cause him to disbelieve him.

3. Now the Magistrate does not have to set out each and every discrepancy and deal with it, it is sufficient that he has dealt with the fact that there were discrepancies, and it has to be said that the discrepancies to which the Appellant has pointed should be regarded as minor.

4. The Magistrate decided not to believe anything that PW2 said because he was a hostile witness. He said something totally different from what he had said in his statement and he was allowed to be cross-examined, and the Magistrate gave himself the proper warning as to the evidence of a hostile witness.

5. It is true that much of what PW3 said was hearsay and the Magistrate has borne that in mind - he had said as much in his Statement of Findings.

6. The Magistrate heard the evidence of the Appellant and his witnesses and he did not believe them. The Magistrate had the advantage of seeing and hearing the witnesses in this case, and the finding of whether or not they were credible was a matter for him.

7. The Appellant takes issue with the finding that blackmail took place because the evidence was that he did not directly ask PW1 for money, but PW1 asked him how much he wanted. It appears from the evidence that he then said $10. Of course, again, the Magistrate has dealt with this in his Statement of Findings. He said that the fact that the Appellant never actually made the demand for money does not lessen from its being an unwarranted demand with menaces, he found that there were words used accompanied by a threatening manner. He found that it was an irresistible inference from the whole of the evidence that the Appellant was making an unwarranted demand of PW1 with a view to gain for himself money with menaces.

8. In my view the Magistrate was entitled to make that finding. Blackmail is not simply a matter of words spoken, it is a matter of actions and gestures as well. I cannot find anything, having read the record and the Magistrate's Statement of Findings, which is to be criticized, and I have heard what the Appellant has had to say in argument, but I do not see that there are any grounds in it for overturning the Magistrate's finding.

9. With regard to the sentence which was a training centre order, one would certainly not say that in the normal course of things, a training centre order is necessarily too severe for the offence of blackmail. Blackmail is a serious offence and is very little less serious when done by boys in a school yard from that which is done by older men when they go to exercise protection rackets over shops and that kind of thing. Now the Magistrate properly considered a report from the Commissioner for Correctional Services which went into the Appellant's background and said that he was not suitable for detention centre but suitable for training centre. The Magistrate also considered a background report by probation officer.

10. I cannot find anything to complain of in the Magistrate's handling of the matter and I do not find, in all the circumstances of this Appellant and his record, that the sentence was manifestly excessive or wrong in principle. Nor could it be said, in all the circumstances, to be too severe. Accordingly, the appeal against conviction and sentence has to be dismissed.