HKSAR v. YIP KWOK HUNG

HCMA1126/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1126 OF 2000

(ON APPEAL FROM FLCC 1583 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on 13 October 2000 of one count of blackmail. He now appeals against that conviction.

2. The appellant was charged with one count of blackmail and one count of criminal damage, together with a co-accused who was charged with one charge of blackmail jointly with this appellant.

3. The case of the prosecution was that on 2 December 1998, the appellant, with his co-accused, set out for the premises at Wang Fuk Court, Tai Po with a view to making arrangements for the collection of a debt. The appellant was to be paid a fee by the co-accused for accompanying him on the venture. They went to the block where the premises they sought were situated. Having arrived there, they went to the 28th floor. The premises that they wanted were on the 26th floor.

4. The appellant was given by his co-accused a notice, written on a piece of paper, and he carried that notice down to the 26th floor, accompanying the co-accused. The co-accused, he knew at that time, had concealed under his clothing a tin of red spray paint, and that he also had a container of glue into which he had inserted toothpicks. The note read :-

"... This is the final notice. Don't get yourself into trouble or you shall have to bear the consequences! ..."

5. Upon reaching the premises on the 26th floor, at the instance of the co-accused, the appellant glued the notice up onto the door. When he had done that, the co-accused stuck the glued toothpicks into the keyhole and sprayed in large red characters on the wall "2601 Chu Yung-fai, repay your debt". The two men then left the premises, walking down to the 25th floor where they took a lift.

6. The occupant of the premises, who it might be said was not the debtor, came outside, having been notified by the police who were called by a caretaker, and the toothpicks were pulled out from the lock. No damage was therefore done to it.

7. The magistrate convicted the appellant blackmail but acquitted him of the criminal damage charge. It is clear that his co-accused was not charged with criminal damage because the evidence against each was different, that against the appellant being based upon a statement he made under caution.

8. The first ground of appeal is that there is inconsistency in the verdict in that if the joint enterprise had been made out, then the magistrate should have convicted the appellant of both the blackmail and the criminal damage charges or acquitted of both. The magistrate gave very limited reasons for her acquittal on the second charge against this appellant. She said this :-

" However, on the charge of criminal damage, I do have doubt as to whether D2 had committed this offence, so I am not satisfied beyond reasonable doubt that the 2nd defendant had committed the 2nd charge of criminal damage. So, the verdict is as follows: Charge 1, blackmail, D1 and D2 both convicted; Charge 2, criminal damage, D2 is acquitted."

9. Mr Wong, appearing for the appellant, argues that if the joint enterprise is made out, the act on the evidence is the same in respect of both the blackmail and the criminal damage charges, and there cannot be any logical reason for the acquittal of the appellant on criminal damage other than the magistrate did not accept there was the inserting of toothpicks or the spraying of paint on the wall. The magistrate's reasoning is therefore, says Mr Wong, faulty and the conviction cannot stand.

10. It goes without saying that the elements of the offence of blackmail differ from the elements of criminal damage. It is clear that part of his arguments before the learned magistrate, Mr Wong took the view that there had been no evidence that actual criminal damage had been done to the premises. In his argument, he used these words :-

"... The evidence of PW1 was not sufficient to prove that the spraying of the paint did cause criminal damage on the way."

It may have been this point which led the magistrate to conclude there was insufficient evidence.

11. However, even if she were in error, having found that there was sufficient evidence to show that there was an agreement reached between the parties to commit the offence of criminal damage, even if they were not successful in carrying it out, I do not consider that her acquittal on the count of criminal damage is sufficient to affect the proper basis of her evaluation of the evidence under law in respect of blackmail. The first ground of appeal must fail.

12. The second ground of appeal is that the learned magistrate erred in finding that an unwarranted demand was proved against the appellant, thereby wrongly convicted the appellant on the concept of joint enterprise. The first argument is that the magistrate made no finding that the appellant knew the contents of the paper which stipulated the unwarranted demand. It is clear, from the findings of the magistrate, that she considered the presence of the fingerprint of the appellant upon the piece of paper, the fact that it was an unfolded piece of paper in his possession from the 28th floor to the 26th floor that when it was posted up, the characters were clearly in view. It is obvious from her Statement of Findings that she drew the irresistible conclusion that he must have been aware of the nature of that note and its contents. She said in her findings :-

" For the point whether the Defendant knew what was written on the note, the Defendant in the Record of Interview said that he held the paper for the co-accused for a while on 28/F and stuck it on the 26/F. According to PW2, the paper was stuck in a way that the content was well exposed to outsider. With these evidence, I cannot see why it can be said that the Defendant had no idea of the contents of the note and would not have formed the intention to make use of the words in the note."

The magistrate, I am satisfied, therefore, properly considered that the appellant knew the contents of the note.

13. Further, Mr Wong argues that there is insufficient evidence to show that the appellant was party to the joint enterprise and that at the time the notice was posted up, insufficient acts had been done to make an unwarranted demand with menaces.

14. It is true that the magistrate in her findings uses the whole of the evidence as she is entitled to do to determine the nature of the agreement between the parties. She was satisfied that the appellant knew that they were going to the premises to collect the debt. They went by a circuitous route with the spray paint tin concealed under the clothing of the co-accused. The appellant must have known that spray paint was used, as is done in many cases in Hong Kong, to spray something on a wall adjacent to the premises. He knew from the document in his possession that a demand was to be made and that implied menaces were contained in that demand. She was entitled to look at all the facts to decide what the agreement must have been. At the very least, the appellant must have known that money owing was to be demanded in the terms of the note which he was holding. The magistrate implies that that note was not sufficient but needed to be allied with the spray painted words and the toothpick insertion which occurred after the posting of the notice to make the menaces.

15. I am satisfied that when she found that there was a joint enterprise between the two to do such acts and make such demands as were necessary, in the terms that they were made, to secure repayment of the debt, that the appellant was a full party to those matters and that she was entitled to come to the conclusions that she did.

16. I do not find that the fact that there was a limited opportunity for the appellant to withdraw after the posting of the notice and prior to or at the time of the spraying and the insertion of the toothpicks and find that in all the circumstances, given his accompaniment of the co-accused down to the 25th floor and their circuit as retreat from the premises, that this makes little or no difference. I am satisfied that there is nothing in the second ground of appeal.

17. The third ground of appeal is that the magistrate erred in finding that, starting for the time on the 28th floor, the appellant was acting in concert with the co-accused. Mr Wong argues that there was nothing more than mere presence. I am satisfied that that is not so. The magistrate clearly considered all those matters which could give rise to an irresistible inference that not only were the two accompanying each other, but that they had agreed to commit an offence and that the offence of blackmail was, in all the circumstances, within the contemplation of the type of act which had been agreed by their criminal enterprise. The third ground of appeal must fail.

18. The conviction, in all the circumstances, is safe and is satisfactory. The appeal against conviction is dismissed.