THE QUEEN v. CHAN WING CHEONG

IN THE COURT OF APPEAL

1987 NO. 98
(Criminal)

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JUDGMENT

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Preliminary

1. This is an application for leave to appeal against both conviction and sentence by CHAN Wing-cheong (“the defendant”), who faced two charges of blackmail and one charge of being a member of a triad society. He was acquitted on the charge of being a member of a triad society and convicted on the two charges of blackmail.

2. The prosecution case depended upon the evidence of the Branch Manager of a company in Chatham Road, Mr. CHAN Yuk-ka, and upon a tape recording, a transcript of which was produced in evidence, of a long conversation between Mr. CHAN Yuk-ka (“the victim”) and the defendant.

Facts

3. The Judge found that the victim was approached on the evening of 9th November, last year, by the defendant, who told him that there were a lot of places in the vicinity that were looked after and protected by him and that he wanted this place, that is to say, the victim's shop, to be under his care and protection. The victim replied that he would have to consult his boss. The defendant said that he and his brothers protected places in the vicinity. The victim then asked the defendant to come back in a week’s time.

4. However, on the evening of 11th November, and this is the subject of the first blackmail charge, the defendant came to the showroom with two men and said that he had to come because he had no idea that the showroom was to be open for business so early, adding that he wanted the place to be under his protection. He suggested that he introduce one of his brothers to work there at a salary of $4,000.

5. The victim replied that this was not acceptable and asked the defendant what he really wanted and how much he wanted, and the defendant said $4,000 a month. The victim insisted that he could not give an answer. The defendant said “If you are not in a position to say anything, it would be better for you to step aside and let my brothers work on it." According to the victim, his understanding of these words was that the brothers would come to the company and do damage to the company or do something against the interests of the company. He felt very scared.

6. On the following day, the defendant phoned the victim and asked him for a decision. The victim said that his boss had not returned and, on the following day, the 13th November, reported the incident to the Tsim Sha Tsui Police Station.

7. As a result of instructions given to him by police officers, the victim agreed to meet the defendant on 18th November, at the Coffee Shop at the Excelsior Hotel. At that meeting the victim carried, concealed on his person, a tape recorder, which was turned on when the defendant arrived and recorded the conversation between the two of them, which lasted the best part of an hour. At the end of that conversation, police officers arrested the defendant.

8. The defendant elected to give evidence and said that his only object was to help the defendant in the new business that he was setting up in Chatham Road. He warned him that sooner or later people would come and that, when this happened, the matter could be fixed up through the introduction of a friend's friend. And according to him, the victim got in touch with him a couple of days’ later asking to be introduced to his friend because people had come to make trouble.

9. The case on the first charge depended entirely evidence of the victim, whom the Judge accepted as a reliable, truthful and impressive witness. By contrast, he labelled the defandant as a liar, giving evidence which was, “incredi-ble and absurd”? He was, the Judge said, “a strikingly unimpressive witness”.

10. In order to establish a charge of blackmail, it is necessary to show that a person of ordinary firmness of mind would have been made apprehensive, or been influenced, by the menaces that were made against him. This was the test which the Judge applied in the course of his reasons for verdict and there was ample evidence upon which he could find that demands with menaces were made and that the victim was influenced by them. And, further, that the words were of such a nature as to cause apprehension in the mind of a person of ordinary courage.

11. The second blackmail charge is based on the remarks made by the defendant during the tape-recorded conversation which he held with the victim on 18th November. In relation to that tape-recording, the judge commented –

“In my view, this conversation constitutes the most overwhelming evidence of blackmail that I have ever encountered. So much so that I find it entirely unnecessary to discuss and dissect it.”

12. After dealing with the submission by counsel for the defendant, that the transcript could be read in various ways, the Judge observed –

“I repeat that it would be difficult to find more comprehensive and convincing evidence of blackmail. This was no 'hypothetical' conversation, this was no friendly chat between businessmen, one trying to advise and assist the other. This was the real thing, the serious criminal in full flight. There is no room for doubt whatsoever.“

13. In spite of the persuasive arguments advanced by Mr. Alderdice, we see no reason whatever to dissent from the view taken by the Judge of the taped conversation. We agree with him that it is redolent of menaces, threats and pressure and that it both amply supports the second blackmail charge, and also adds support to the credibility of the victim on the first blackmail charge.

14. We are, therefore, satisfied that there is no merit in the application for leave to appeal against conviction, which is accordingly dismissed.

15. With regard to sentence, it has been submitted that one of three years is manifestly excessive, having regard to the general level of sentences imposed for blackmail. We do not give much weight to the record of the defendant, who has five previous convictions, none of them sufficiently severe to warrant more than a fine.

16. This, however, in our view, is an offence of a serious nature. It is, also, all too common for pressure to be put on businessmen to pay protection money in order to ensure both that other gangs should be discouraged and that the “brothers”, to whom payment is being made, will not interfere with the business. Where it is detected it is right that the courts should take a serious view of it. For their future guidance, we suggest that a sentence of the kind imposed in this case should be regarded as a normal one for offences of this kind.

17. The application for leave to appeal against sentence also is dismissed.