HKSAR v.CHAN CHI KIN

CACC 542/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 542 OF 2011

(ON APPEAL FROM DCCC NO 536 OF 2011)

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the Reasons for Judgment of the court):

Background

1.  The applicant was convicted after trial before Deputy District Court Judge Woodcock (as she then was) of one count of Blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210 (1^st charge), and one count of Claiming to be a Member of a Triad Society, contrary to section 20(2) of the Societies Ordinance, Cap 151. He was sentenced to a total of three years’ imprisonment.

2.  The applicant, who was unrepresented when he originally applied for leave to appeal against conviction, had his application refused by Hon Yuen JA on 26 February 2013.  The applicant renewed his application before us on 24 May 2013. For reasons which we will address in more detail later, we adjourned the case so that a transcript of the complainant’s evidence of the blackmail (X) could be obtained.  We also ordered that Legal Aid be granted to the applicant for his application, whose earlier application for Legal Aid had been refused.

3.  At the conclusion of the adjourned hearing, we granted the applicant leave to appeal against his conviction, and treating the leave application as the appeal proper, we allowed the appeal and quashed his conviction.  These are our reasons.

Prosecution case

4.  X ran a bar “Starry Night” in the Tsuen Wan area.  He said that on 9 March 2011, when he finished work, he was approached by two males who claimed to be of “Shing Yee” and the followers of “Ah Kin”.  The two demanded protection fee from X.  X said he needed to discuss with the other owners and was given until 14 March to answer the demand.

5.  X said he felt harassed and he contacted a police officer surnamed Lee about the incident.  Before he went to work on 14 March 2011, X gave a statement to the police. 

6.  Later that evening the applicant entered the bar and sat with a male and a female at a table (Table 2).  X did not know the applicant at the time and he had never seen the applicant before.  According to X, the applicant suddenly approached him when he was sitting at his table (Table 5).  The applicant introduced himself to be “Ah Kin” of “Shing Yee” (admittedly a triad society) and demanded a protection fee of $3,000 and 200 bottles/cans of beer to treat his brothers.  X replied that he had to discuss with the other shareholders.  X said he felt a bit scared at the time.  A few minutes later police officer Lee and other police officers entered the bar and arrested the applicant.

7.  What took place at the bar on 14 March 2011 was captured, at different angles, by the closed‑circuit television installed inside the bar.  It was put to X, during cross‑examination, that from the closed‑circuit television footage, X appeared to have a conversation with a waitress who then went over to the applicant and spoke to the applicant before the applicant walked over to X’s table.  In other words, the applicant was asked to go to X’s table, and did not suddenly come up to X as X had alleged.  X denied that he had sent the waitress over to ask the applicant to come over to his table.

8.  It was also put to X that X had arranged for the police to arrive at the bar, which X again denied.

Defence case

9.  The applicant elected not to give evidence but called a witness, Mr Leung.

10.  The line of cross‑examination of X suggested that there was never any blackmail or claiming to be a member of a triad society when the two had a conversation on 14 March 2011.  It was suggested that the applicant had a discussion with X about the applicant’s role as a “Dung Tau” (燈頭) for a nearby bar “88 Heaven”—“Dung Tau” being an agent or runner who brings customers to a bar and receives commission based on the alcohol consumption of those customers.  X disagreed with this suggestion.  It was also suggested to X that he was not easily intimidated because of his previous convictions for fighting in a public place and wounding.  X replied he would not have been easily intimidated if it was a case of “one‑to‑one”.

11.  Mr Leung gave evidence that he was the person in charge of “88 Heaven”, and that the applicant was indeed employed as a “Dung Tau” of his bar.  Mr Leung was not present at the time when X and the applicant had the conversation on 14 March 2011.

The judge’s findings

12.  In her Reasons for Verdict, the judge—in relation to the evidence of X—said X’s oral evidence was “to the same effect as and supported by the closed‑circuit television footage”.  The judge disregarded what appeared on the footage, ie a waitress appeared to be speaking first to X then to the applicant, and then the applicant stood up and approached X’s table.  The judge said:

“… What appears on the closed-circuit television footage is not evidence I will take into account without any evidence of any conversation. There are so many possibilities I am not prepared to make any findings as to the content of conversation between the parties in that bar.”

13.  The judge found X’s “evidence credible in its entirety” and that the closed‑circuit television footage “supports [X]’s evidence, not contradicts it.”  She also found that “[a]ny discrepancy is so minor it does not affect the credibility” of X.

Closed‑circuit television footage

14.  As a result of reading the rather voluminous home‑made grounds of appeal of the applicant (who did not have the benefit of legal representation at the time), we viewed the closed‑circuit television footage, both before and during the hearing on 24 May 2013.  Suffice it to say that we were disturbed by what we saw since what was captured on film did not appear to support X’s testimony that the applicant, of his own accord, suddenly walked up to X.  It appeared, rather, that the applicant was called over, or directed, to X’s table.  We wondered whether the testimony might accord with what we saw on the film; for example, that the applicant might upon entry to the bar have approached the waitress, perhaps asking to be notified when X was free to see him.  We therefore adjourned the case so that a transcript of X’s evidence could be obtained.  We also granted the applicant Legal Aid to pursue his application.

15.  We have been provided with a summary of the events viewed from the closed‑circuit television—one each from parties—for which we are grateful.  We do not think it necessary to set the summaries out in full.  We think the following suffices:

“The applicant entered the bar at 22:07:32 and he went to join a male and a female at Table 2. The waitress approached the applicant at 22:09:05 and they appeared to have a conversation. At 22:10:30 the waitress went to speak to X, who was playing darts. X then left the bar and returned about 2 minutes later. The waitress again approached and spoke to X near the dart-playing area. At 22:14:28 X went and sat at Table 5. Some 4 minutes later at 22:18:56, X spoke to the waitress, who was then sweeping the floor near the bar-counter. The waitress then went to Table 2 and spoke to the applicant. The waitress appeared to have pointed at the direction of Table 5 when she spoke to the applicant. The applicant appeared to have pointed his right fingers to his chest and then turned his head to look at the direction of Table 5 before he took up his glass and joined X at Table 5. The applicant extended his hand to shake hands with X and the two appeared to have a relaxed conversation for about 6 minutes. At 22:25:45 a group of police arrived and went directly to Table 5. X left Table 5. The applicant was eventually arrested.”

Ground of appeal

16.  Mr Charles Chan, counsel for the applicant during the adjourned hearing, basically advanced one ground of appeal: the judge erred in finding that the discrepancy between the evidence of X and what was captured by the closed‑circuit television footage as minor, rendering the conviction unsafe and/or unsatisfactory.

17.  Mr Chan in effect reiterated that feature of the case which had caused us unease in the first place, ie the footage did not appear to support X’s testimony that the applicant approached him of the latter’s own accord.  Mr Chan emphasized the fact that, as shown from the footage, it was the waitress who first approached the applicant shortly after the applicant arrived at the bar, and he submitted that that did not accord with any suggestion that the applicant had spoken to the waitress, asking her to relate his request to see X.

18.  Mr Chan also pointed out what was captured at 22:19:19 when the waitress approached and spoke to the applicant:the applicant pointed at himself as if to say “me?” before he went over to join X at Table 5.  Mr Chan submitted that that again did not accord with the action of someone who had expected to speak to X.

19.  Mr Chan submitted that the judge failed properly to evaluate the evidence of X and failed to reconcile the obvious discrepancy between X’s testimony and what was captured on film.

Respondent’s response

20.  The respondent’s stance boils down to this: while the respondent accepts that from the footage, it was open to an interpretation that it was possible that the waitress made the invitation upon X’s instruction/request or with X’s consent, an earlier encounter between the applicant and the waitress captured on film suggests that such earlier encounter led immediately to those conversations between X and the waitress, which in turn led to the meeting between X and the applicant at Table 5.

21.  The respondent did not seriously pursue this line of argument before us—after we all viewed the film again and saw that it was the waitress who had approached the applicant shortly after the applicant entered the bar, and not vice versa.

22.  The respondent accepted that the analysis by the judge was “not a happy one” and conceded that the judge made an error.  Nevertheless, it was submitted that the case against the applicant was overwhelming and the proviso was applicable.

A consideration of the submission

23.  The closed‑circuit television footage clearly did not support X’s testimony that the applicant suddenly came up to him and spoke to him.  The applicant had been inside the bar for sometime before he and X had the conversation at Table 5.  It was the waitress who first approached the applicant.  The waitress was seen trying to grab the applicant’s right hand, which the applicant dodged.  There is of course no evidence as to what was said between the two but what can be seen is quite different from the scenario suggested by the prosecution: ie that this encounter between the applicant and the waitress led to X later having a conversation with the applicant.

24.  After the waitress spoke to X, X went out of the bar and returned two minutes later.  It was only about five minutes later that X beckoned the waitress to ask the applicant to join him at Table 5.  X had a conversation with the applicant for almost six minutes before the police arrived.  The police officers made a bee‑line for Table 5.  There was no explanation of how they came to be at the scene at the time.  We noted that when defence counsel tried to cross‑examine X on this, he was stopped by the judge.  Defence counsel eventually put to X that X had arranged for the police to arrive, which X denied.  Yet what was captured on film clearly suggests that X had gone out to inform the police and he had waited about five minutes before asking the applicant to join him at Table 5, seemingly to give the police enough time to arrive.

25.  Be that as it may, we are surprised by the way the judge dealt with the discrepancy between X’s testimony and what was captured on film.  We cannot see how it could possibly be said that the footage “supports” X’s testimony.  The judge’s disregard of the footage on the basis that she could not hear any conversation is also flawed.  One does not need to hear what was said.  What was captured on film was on its face so materially different from X’s testimony that it required careful analysis.  

26.  Further, the case put by the defence to X was one of frame-up, and that X had arranged for the police to arrive.  X never explained how the police happened to arrive at that time.  Defence counsel’s attempt to elicit evidence from X was stopped by the judge but, with respect, it should not have been.

27.  The case against the applicant hinged on the credibility of X.  The burden of proof lies on the prosecution.  The footage clearly did not support the evidence of X.  It is not for this court (or any court) to speculate as to what had taken place between the applicant and the waitress earlier at the bar.  Once X’s evidence is shown to be unreliable, the applicant must be given the benefit of the doubt. 

28.  We were of the firm view that the conviction was unsafe.  The suggestion that in the circumstances this was an appropriate case for the application of the proviso was, with respect, a bizarre suggestion which ought never to have been advanced.  We therefore granted the applicant leave to appeal, allowed the appeal and quashed his conviction.

Further comments

29.  Lastly, we wish to point out that this is yet another instance of Legal Aid being refused for a clearly arguable case.