HKSAR v. AU WAI YIP

HCMA 951/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 951 OF 2003

(ON APPEAL FROM TWCC 1682/2003)

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J U D G M E N T

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1. The Appellant was convicted after trial in the Magistracy on one charge of Blackmail, contrary to sections 23(1) and (3) of the Theft Ordinance, Cap. 210. He appeals against that conviction.

Facts

2. The target of the blackmail (PW1) was engaged in construction work. He believed that a construction company named "Wai Lik" owed him $900,000.00. On 12 December 2002, a friend (said to be a serving police officer) introduced the Appellant to him as a debt collector. PW1 reached an agreement with the Appellant that if he could collect the debt, he would give him half of the sum collected, together with HK$5,000 for transportation expenses.

3. On 17 December 2002, the Appellant accompanied PW1 to a meeting with the accountant of Wai Lik. The accounting records were checked and it was found that PW1 had made an error; Wai Lik did not owe him any money.

4. After that meeting, the Appellant asked PW1 to pay him HK$100,000.00 for his "work", but PW1 refused. At that stage, the Appellant and his associates threatened PW1 by saying that he could not escape the matter, he would be hit every time he was seen and the Appellant would get somebody to disturb his family. As the Appellant uttered those words in a very fierce manner, PW1 was scared. He paid the Appellant HK$5,000.00 before he was allowed to leave.

5. After that, the Appellant kept phoning PW1, pressing him for money and as a result, PW1 paid two further sums of HK$20,000.00 and HK$25,000.00 respectively. When pressed for further payment, PW1 said that he could not raise any more money. The Appellant then took PW1 to a financial institution on 24 December 2002 to apply for loans. On the evening of that day, PW1 made a report to the police. The Appellant was arrested on 13 January 2003 and later identified by PW1 at an Identification Parade.

6. There were four grounds of appeal:

(1) The Magistrate was biased against the Appellant in drawing the irresistible inference that the Appellant intended to use illegal force and threats in order to make Wai Lik Company pay the debt;

(2) the Magistrate erred in holding that the HK$100,000 demand was unwarranted, (a) because even if there was no provision in the debt collecting agreement as to what would happen if no money was owing, the Appellant was still entitled to be paid for work done and (b) there was no basis for his holding that neither the Appellant or PW1 expected this result in the meeting with Wai Lik Company;

(3) the Magistrate had not assessed the inconsistencies and discrepancies in PW1's evidence correctly; and

(4) The Magistrate erred in admitting evidence that the Appellant had been in prison previously.

Ground 4

7. I shall dispose of this ground first. It is alleged that the Magistrate erred by admitting evidence that the Appellant had been in prison before. This ground has not been substantiated.

8. The information that the Appellant had been in prison came from PW1's evidence. The Magistrate was asked immediately and in final submission by Appellant's counsel to disregard any mention of imprisonment and the Magistrate said he would totally ignore it. Complaint is made that when delivering his verdict, the Magistrate did not say specifically he would ignore the Appellant's previous imprisonment.

9. Counsel for the Appellant submitted that looking at the judgment as a whole, it gave the impression that the Magistrate was affected by the Appellant's having been in prison and being a man of bad character.

10. There is nothing to indicate that the Magistrate did anything other than ignore the information about the Appellant's previous imprisonment [B 34 and B 46 refers]. His failure to make specific reference to it in his Statement of Findings does not mean he was affected by it. A professional tribunal is often required to make findings against a background of inadvertently revealed information of greater or lesser prejudicial effect. Here the Magistrate assured counsel that he would ignore the information and the Appellant could rely on that assurance that the court. No prejudice or bias against the Appellant has been shown and this ground of appeal fails.

Ground 2

11. There was a complaint that the Magistrate erred in holding the HK$100,000 demand was unwarranted. PW1's evidence if accepted, was that the demand was unwarranted, because the agreement was that the Appellant would have half of the total amount collected, together with HK$5,000 for transport expenses. Only HK$5,000 was to be paid if no part of the debt was collected.

12. Counsel for the Appellant submitted that even if there was no agreement about what fees would be paid if no money was outstanding, the Appellant was entitled to payment for attending on the accountant. On that basis, it was submitted that the Appellant had not made an unwarranted demand. Counsel argued that as the Appellant's half of the debt recovered could be as much as HK$450,000, his asking for HK$100,000 was not excessive in the circumstances.

13. As the Appellant had performed some work towards collecting the debt which was of value to PW1, because it clarified whether there was any money owing, the Appellant was entitled to part-payment, even without any prior agreement.

14. It is difficult to see what possible reasonable demand could be made when no money was recovered, no money was lost and when no agreement was made about payment if the debt was not owing. Although there was no explanation as to what the transportation fee was meant to cover, HK$5,000 seems ample compensation for such "work" as attending a restaurant meeting with the accountant.

15. The Magistrate looked at the agreement existing between the Appellant and PW1 and found that if the Appellant collected all or part of the debt, he would receive half of the amount recovered, plus travel expenses of HK$5,000. If the debt was not recovered, the Appellant would receive only his travelling expenses. He found that PW1 and the Appellant had not agreed to pay $100,000 or any sum if the debt did not exist as neither party had contemplated that eventually. This ground of appeal fails.

Ground 1

16. This ground alleged that the Magistrate was biased against the Appellant because he drew an irresistible inference that the Appellant would use force and threats to force Wai Lik to pay the debt. It is certainly the case that the Magistrate appears to have gone much further than he need have done when in his Statement of Findings [B19-10] he stated:

"I further found by irresistible inference that the defendant intended to use illegal force and threats as a means of making Wai Lik Company pay the debt, but he could not take an active part in doing this until the amount due and owing to PW1 had been finalized between PW1 and Wai Lik Company."

17. He does not explain from what evidence he drew this inference and having read the transcript of PW1's evidence (he being the sole oral prosecution witness) I cannot see that it provides a basis for that inference. Certainly the hiring of a debt collector by PW1 might suggest that force and threats were contemplated, but there is no evidence which confirms or suggests that those were to be the methods employed by the Appellant.

18. On the occasion the account was checked with Wai Lik, the checking took several hours and, although the Appellant attended with his companions, there was no suggestion of them using verbal threats or physical force in relation to Wai Lik. (B46, B47, B61 and B65) Nor did PW1 report any discussion with anyone at any time about the methods the Appellant would use to enforce the debt. The bulk of PW1's evidence concerned the terms of the debt-collecting agreement and the alleged interaction between PW1 and the Appellant when it was found the debt did not exist.

19. The Magistrate made a finding he did not need to make, a finding which was not supported by PW1's evidence. This could give an appearance of bias against the Appellant when considering the evidence relating to the charge. It appears he derived this finding from the view he formed of the Appellant in relation to the alleged "disturbance" caused to PW1.

20. Accordingly Ground 1 is established.

Ground 3

21. The Appellant complained that the Magistrate had not properly assessed the inconsistencies and discrepancies in PW1's evidence, but the Statement of Findings show that the Magistrate spent some time assessing the evidence of PW1. He was aware he had to approach it with caution as PW1 was the sole witness and his evidence was not corroborated.

22. The need for caution appears to have been all the greater as PW1 appears to have been a very poor witness. He was vague about the initial negotiations with the Appellant. [B15]. His evidence conflicted with his witness statements [B16-B] as to when and in what manner the threats were made. He could not remember clearly the meeting at which the account was checked. [B16E] Despite the threats allegedly made against him he had apparently visited the Appellant at his home without incident [B67] during the period when he was complaining of demands being made of him. It was also clear that PW1 had been prepared to resort to the dubious practice of obtaining the services of a debt collector who had been introduced to him by a serving police officer. This made it difficult to extricate himself from the position he allegedly found himself in. It is also a matter that should have been considered when assessing his credibility, but was brushed aside [B17-E].

23. The Magistrate appeared, with some straining, to have been able to reconcile all those matters to his own satisfaction and convicted the Appellant. While recognizing that the Magistrate had the advantage of seeing and hearing PW1, I am uneasy about the quality of PW1's evidence - coupled as it is with the Magistrate's being prepared to draw an irrestible inference about the Appellant from material which did not exist.

24. As I cannot be sure that the conviction is safe, I allow the appeal and quash the conviction and sentence.