HKSAR v. CHAN WING GO

DCCC 660/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 660 OF 2014

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REASONS FOR VERDICT

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1.  The defendant faces one charge of blackmail contrary to section 23(1) and (3) of the Theft Ordinance Cap 210.

The charge

2.  The particulars of the offence allege that on a day unknown in mid November 2013 near Hung Yuen Road Hung Shiu Kiu Tin Siu Wai New Territories with a view to gain for himself or another or with intent to cause loss to another, made an unwarranted demand of $30,000 Hong Kong currency from X with menaces.

3.  Section 23(1) of Cap 210 states:-

“A person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief-

that he has reasonable grounds for making the demand; and

that the use of the menaces is a proper means of enforcing the demand”.

4.  There are four elements of the offence which the prosecution must prove namely (a)a demand with; (b) menaces was made; (c) that it was unwarranted; and (d) that at the time of making the demand the defendant made it with a view to gain for himself or another or with intent to cause loss to another.

5.  The demand may be made in writing, by speech or by conduct (or a combination of the forgoing).

6.  The meaning of menaces was considered by Sellers LJ in R v Clear [1968] 1 QB 670 in the following terms:-

“Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces …… but threats or conduct of such nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand would be sufficient for a jury’s consideration ……..”

7.  In Thorne v Motor Trade Association [1937] AC 797 HL Lord Wright thought the word menace to be:-

“liberally construed and not limited to threats of violence but as including any threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended”.

8.  Any demand with menaces is unwarranted unless the defendant is able to bring himself within both paragraphs (a) and (b) of section 23(1).

9.  A gain clearly includes a monetary gain and “getting what one has not”.

The evidence

10.  As Mr Chandler Counsel for the prosecution said at the outset the present case is essentially a one witness case such that the prosecution’s case stands or falls on the evidence of PW1 (Mr X).  Should the court not believe his testimony or his account is incredible or unreliable the case against the defendant must fail.  There is no other independent evidence which goes to support the case for the prosecution.

11.  PW1 described how in March 2013 he started selling beverages to construction site workers outside a construction site near Hung Yuen Road Hung Shiu Kiu New Territories.

12.  From sometime in May he began selling lunch boxes and tea time snacks from a black van at the same location.  He made approximately $500 per day profit from the lunch boxes and $300 – 400 from the snacks.  PW1 was assisted by his wife in the enterprise.

13.  In mid November 2013 he was approached by Ah Go at the site.  PW1 identified the defendant in court as Ah Go having previously identified him during an identity parade at the Tuen Mun Police Station on the 10 June 2014.  Since identity was not an issue in this case I shall hereafter refer to Ah Go as the defendant.

14.  The defendant approached PW1 on a bicycle and asked PW1 who allowed him to sell at that location adding this is my territory and “you have to pay protection fee in order to sell here otherwise you cannot sell here”. The defendant asked PW1 for $30,000 as “protection money”.

15.  PW1 was asked what was meant by “protection money” to which he replied: “it means if I paid him money he would not cause trouble at this place and I could go on selling there”.

16.  PW1 said he was scared and told the defendant he had no money.  The defendant told him there was no alternative, he had to raise the money otherwise he could not continue selling there as it was his territory.

17.  PW1 was asked what would happen if he did not pay and said “Definitely some people would cause trouble to me and I could not sell there and could not earn a living”; and he would “probably damage my stuff and not allow me to sell”

18.  PW1 described the defendant’s demeanour as being very fierce and as a result he was very scared.

19.  I pause here to note it would appear the defendant had not been explicit about causing trouble (or damaging his stuff) and hence this was a supposition on the part of PW1.  However the demand for $30,000 was accompanied by the statement that if payment was not made PW1 would not be allowed to carry out his business and was done so in a manner PW1 clearly felt intimidating.

20.  Since PW1 told the defendant he had no money he was given a week to pay.  Telephone numbers were exchanged.

21.  PW1 raised the money by borrowing and from his wife’s savings and arranged to meet the defendant at the site where he handed over the sum to him.  After handing over the $30,000 the defendant told PW1 not to tip off others otherwise “I will chop you to death and burn your house” as a result PW1 said he was very scared.

22.  These words were said after payment had been made and as such cannot be part of the menaces per se accompanying the demand but do serve to put into context what was said at the time of the demand.

23.  Prior to the meeting in November PW1 described how on three separate occasions his van had been damaged (in two of the instances by persons wielding golf clubs).  These were in August September and October 2013.

24.  I note when the defendant made a demand for the $30,000 in November he made no mention of the damage to the van. Whilst it may be inferred the damage was linked to the demand for $30,000 given the perpetrators were not indentified nor is there any evidence specifically linking the damage to the demand this is not the only reasonable inference which can be drawn from these facts.  As such this part of the evidence cannot be relied upon in support of the element of menaces associated with the demand made in November.

25.  Further I draw no adverse inference against the defendant from this part of the evidence.

26.  It is fair to say in cross examination PW1’s description of the circumstances and the occasions on which he came into contact with the defendant was considerably wider than described by him in chief.

27.  Initially when asked in cross examination PW1 said that the November meeting was the first time the defendant had approached and spoken to him.  After the November meeting he sometimes approached to observe whether the business was doing well but on no occasion thereafter did PW1 pay him more money nor did the defendant ask for more.

28.  When PW1 started selling the lunch boxes at the site he obtained the lunch boxes from a cooked food stall called Sun Kei operated by Fei Kan.  Subsequently he changed to another supplier.  PW1 said he had no other business dealings with Fei Kan other than the supply of lunch boxes.

29.  However after the mid morning break PW1recalled he had met Fei Kan together with the defendant at the Tai Fat Restaurant in Hung Shui Kiu.  The purpose of this meeting was because Fei Kan said he wanted to sell lunch boxes at the site and Fei Kan had asked PW1 who was looking after the site and PW1 told him it was the defendant.  PW1 thus arranged the meeting.

30.  PW1 said he had not remembered this earlier because he had been very nervous giving evidence and did not listen to the questions clearly.  PW1 agreed in fact he had obtained the defendant’s telephone number before the November meeting.

31.  PW1 had been arrested for the offence of blackmail in May 2014 and interviewed under caution.  The interview under caution was in the usual form of questions and answers.  PW1 wrote the answers.  He also provided the police with two statements as a witness.

32.  PW1 was asked in cross examination a number of questions about what he told the police during the interview under caution (produced as exhibit P1 with translation P1A) and during  the two witness statements (produced as exhibits P2 with translation P2A and P3 with translation P3A).

33.  The translations to these documents are not certified translations but the translations were agreed between the prosecution and the defence pursuant to the admitted facts (exhibit P4).

34.  The contents of the record of interview and the statements cannot be evidence of the truth of what is asserted therein nor can they be relied upon to show consistency with what PW1 said in evidence.  They were admitted into evidence to show the context of the replies which Mr Davies had cross examined PW1 as being inconsistent with his evidence.

35.  Mr Davies also relied upon them in his closing submission to suggest PW1 was deliberately hiding information from the police and lying to the court.

36.  I have considered carefully the cross examination of PW1 on those parts of the statements highlighted by Mr Davies.  PW1 had not disclosed in P1, P2 or P3 certain of the events which he accepted as having occurred during cross examination.

37.  However in the statement given on the 17 June 2014 (exhibit P3) he did tell the police about the meeting at the restaurant in or around March 2014.  It was at this meeting Fei Kan had agreed to pay a protection fee of $28,000 to the defendant and PW1 had agreed to sell his business to Fei Kan.

38.  Looking at the sequence of the record of interview (P1 and P1A) followed by the two witness statements (P2 and P2A and P3 and P3A) and the questions asked in each it is not until the statement given on the 17^th June (P3 and P3A) PW1 is asked about how he obtained his lunch boxes.  This is when he told the police about Fei Kan.  The earlier record of interview (P1 and P1A) and statement (P2 and P2A) had concentrated on Ah Go and the background behind the demand for $30,000 made in November 2013.  It is not surprising therefore the subject of Fei Kan and the meeting at the restaurant did not arise until he was asked about the source of the lunch boxes in the third statement.

39.  PW1 had confused dates of meetings during the course of his evidence in particular he could not recall whether the meeting with Fei Kan and the defendant took place before or after the payment of $30,000 in November 2013.

40.  Mr Davies submitted in his closing the witness had originally claimed in evidence he acquired the lunch boxes from Fei Kan only at the outset and hence the reference to the $7,000 which PW1 said he paid to the defendant direct on behalf of Fei Kan which was to be set off against the money he owed Fei Kan for the cost of the lunch boxes (as per answer 5) was illogical.  However answer 5 must be read in the context of answer 1 and answer 6. 

41.  PW1 said he had a poor memory for dates partly due to his low level of education and it was apparent as his evidence progressed he appeared to confuse dates (specifically the year) although he could remember times of the day and he could remember specifically the dates damage was caused to his vehicle.  This is not surprising given he made report so the police about those incidents and to his motor insurance company.

42.  PW1 agreed in cross examination that an agreement was reached between Fei Kan and the defendant such that Fei Kan could sell lunch boxes at the site.  Fei Kan was to give $28,000 to Ah Go as the protection fee.  PW1 also agreed to sell Fei Kan his business at the site for which Fei Kan was to pay PW1 $30,000 by way of reimbursement of the money he had paid to the defendant as protection fee although in fact PW1 never received this amount saying he thought Fei Kan just wanted to get rid of him.

43.  It was also suggested to PW1 there had been a meeting in May 2013 at the Tak Fuk Restaurant when the defendant and Wong Hung Fai were present.  PW1 said he could not remember the date but agreed he had been worried about his safety at the site and had agreed pursuant to Wong’s suggestion to pay the defendant to keep an eye on things.

44.  PW1 said no one mentioned use of force at this meeting but if he paid the defendant guaranteed no one would cause him trouble and he could carry on the business at the site.  If any trouble was caused he could contact the defendant who would sort it out.

45.  PW1 agreed to pay the $30,000 to the defendant and this was to cover a period of one year.

46.  PW1 said he had not told the police about this earlier incident because he feared of “inviting further trouble so I better skip it.  I was scared”.  Asked why he had gone on to tell the police about the incident in November PW1 said “when the police arrested me I thought I was the victim – I gave out money – someone asked me for protection fee”.  When pressed on why he had not spoken of the earlier payment PW1 said “I did not mention.  I was extremely scared.  I was shivering and even now my legs shiver”.

47.  In November when the defendant asked for another $30,000 PW1 said this was an advance payment of the protection fee and the defendant had claimed he needed money to carry out renovation of his house.  If the money was paid he could guarantee no trouble.

48.  It was suggested to PW1 the defendant in fact was only seeking a loan and had asked a mutual friend So Yun Lam to approach PW1 and ask for a loan on his behalf.  PW1 disagreed and said although he had met So and the defendant together it was the defendant who had asked for the advance payment of the protection fee.  PW1 did agree that he had handed over money to So who in turn handed it to the defendant but was resolute this was the advance of the protection fee.

49.  PW1 was asked why he had not told the police of this arrangement and again said he had been scared because of the warning given to him by the defendant about tipping off others and the consequences of so doing.

50.  The second witness called by the prosecution was DPC 1880 Yeung Chi Ming who merely related the arrest of the defendant on the 9 June 2014.

51.  The defendant elected not to give evidence.  This is his right.  He does not have to prove anything and no adverse inference can be drawn against him as a result of his decision to remain silent.  The burden of proof remains squarely on the prosecution to satisfy the court beyond all reasonable doubt the defendant is guilty of this charge.

52.  The defendant called one witness and this was So Yun Lam.  Mr So said that he had been asked by the defendant to approach PW1 to obtain a loan to enable the defendant to renovate his house.  The evidence concerning the purpose of any loan was clearly hearsay.  I listened carefully to what Mr So had to say but found his evidence inherently improbable. 

53.  Mr So said he agreed to stand as a guarantor for the loan but had only known the defendant for over 2 years and had no idea what employment he held if any.  Although Mr So asserted he agreed to act out of kindness and claimed that it was not uncommon for loans to be made unsupported by any documents I found it inherently improbable he would take on such a role and incur such a risk of default when he would gain nothing from the arrangement.

54.  Moreover I found it inherently improbable PW1 would agree to make a loan to a person whom even Mr So admitted PW1 did not trust where there was no fixed term for repayment and no interest charged for the loan.

55.  Mr So claimed PW1 trusted him as a guarantor however he only came to know PW1 in 2013 when he used to buy lunch boxes from PW1 and this alleged loan was supposed to have been made in July of 2013 (although the date may well have been the November date).  According to PW1 he did not begin selling lunch boxes at the site until in or about May 2013.  It is inherently improbable that PW1 would have come to trust Mr So within such a short period to act as a guarantor for a substantial loan.

56.  Further there was no credible reason why the defendant sought the loan from PW1 and not from So direct.  PW1 explained he had to borrow money in order to pay the defendant in November and hence for PW1 to advance an interest free unsecured loan for an indeterminate period to the defendant simply did not make sense.

57.  I agree with Mr Chandler that Mr So had been put up to give this account and I reject his account.

Assessment of the evidence

58.  In so far as there are contradictions and inconsistencies in the evidence given by PW1 I do not consider such contradictions and inconsistencies to fundamentally undermine what PW1 had said concerning the demand made by the defendant for $30,000 in November 2013.

59.  In his closing submission Mr Davies referred to stark differences between the account PW1 gave in chief and the account he gave in cross examination.  Mr Davies says that these differences are difficult to reconcile if he was being an honest witness.

60.  I do not accept this.  PW1 was not asked in chief about many of the matters which were raised in cross examination and having been asked in cross examination did not seek to deny some of those events did happen.  In answer to those questions I did not find him evasive as suggested.  He was confused about dates but remained resolute the money paid to the defendant was protection money and not as suggested for a loan.  He remained resolute the demand was backed by a threat if he did not pay he would not be allowed to continue his business at the site.

61.  I accept his account of the circumstances in which he paid over the money did differ from his evidence in chief and that he had not disclosed these details to the police.  Mr Davies suggested this was deliberate on his part so as to prevent the police from contacting the other persons and finding out the truth.

62.  I do not accept PW1 would have had the degree of sophistication to deliberately lie to the police or the court.  This was not a situation where the witness was confronted with other evidence which contradicted what he had said and as a result had to change his account in order to meet the other evidence.  Mr Davies had asked him about matters/events not asked in chief and PW1 did his best to recall whether such matters/events occurred.

63.  I accept the demand made in November 2013 was unwarranted and that neither (a) or (b) in section 23 (1) of Cap 210 apply.  The defendant clearly had no right to demand $30,000 from PW1 and hence the demand was unwarranted.

64.  The demand was backed by the threat if PW1 did not pay he would not be allowed to sell lunch boxes at the site.  This clearly is a threat to do something detrimental to PW1.  Coupled with the reference to the payment being a protection fee and the defendant being very fierce at the time such as to cause PW1 to be frightened I accept the demand was being made with menaces.  

65.  The fear instilled in PW1 was heightened by the threat made after payment was made to chop PW1 to death and to burn his house down if he tipped anyone off.  I accept this threat persisted and was in the mind of PW1 when he was interviewed by the police and whilst he was giving evidence in court.

66.  PW1 was not a confident witness but this was not an attempt as suggested by Mr Davies to be evasive and to tell lies to the court.  If PW1 had been as calculating in his testimony as Mr Davies suggests and set out to deliberately lie one would not expect the confusion over the dates and the inconsistencies in his evidence.

67.  I bear in mind PW1 had been arrested for the offence of blackmail and the temptation for a person in that position to try and escape blame by pushing the blame onto others.  I give myself a warning of the inherent dangers of accepting the evidence of a witness in those circumstances.

68.  I have given careful consideration to all the submissions made by Mr Davies on behalf of the defendant.  In essence Mr Davies suggests PW1 was neither truthful nor reliable and that he was not telling the court the truth in an effort to hide something.

69.  I have considered PW1’s evidence in the light of the submissions made by Mr Davies but having considered all his evidence (and the inconsistencies and contradictions such as they are) I found PW1 to be an honest witness and was doing his best to recount events doing so having to face the person across the court room who threatened him in such manner.  The heart of the matter is the demand made in November 2013.

70.  I found PW1’s account of that unwarranted demand made by the defendant with menaces with a view to gain to be reliable such that I can be sure the defendant is guilty of the charge and I convict him accordingly.