THE QUEEN v. WONG KOON WAH

IN THE COURT OF APPEAL

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J U D G M E N T

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Fuad, V.-P.

1. The Applicant, Wong Koon Wahpleaded not guilty before Judge Roy in the District Court to two offences: blackmail (1st charge) and criminal damage (2nd charge) on 9 May 1988, he was conviction on the 1st charge and acquitted on the 2nd charge. On the same day he was sentenced to 2 years' imprisonment. He now seeks leave to appeal against his conviction. He abandoned his application for leave to appeal against sentence yesterday.

2. The main prosecution witness was a Mr. Chan Wing Keung who runs a restaurant in Kowloon. He told the Court that during the summer of 1985 he borrowed $30,000 from a friend named Tai Cheung. He gave him an IOU and a cheque for $30,000 as security for the loan. He managed to repay it at the end of the following year and recovered the cheque but his friend said he was unable to find the IOU to hand back to him.

3. Mr. Chan went on to testify that on 21 January 1988 two men visited him at his restaurant, one of whom was the Applicant. They spoke to him outside on the pavement and told him that Tai Cheung owed them money and so they had come to collect $70,000 due to them from him (Mr. Chan) Mr. Chan protested that he had repaid the loan to Tai Cheung and that he wanted to speak to him before discussing the matter any further.

4. According to Mr." Chan's evidence, the two men returned on 24 January. The man who was with the Applicant said that Mr. Chan had to pay first $70,000 and then $50,000. Mr. Chan repeated his protest that he had already repaid the debt due to Tai Cheung, adding that he did not owe the man any money. Mr. Chan continued: "They were not pleased. The one not in Court said if I didn't repay they would not be courteous to me. I guessed from what he said to me that they would do some harm to myself or my business. When the other person said that, this Defendant was next to him. When he said those words I felt uneasy of course, and a little frightened. After that they left."

5. Mr. Chan then spoke of the afternoon of 27 January when a large group of men came to his restaurant broke its windows and smashed up a cabinet and some crockery. He said that he had seen a man "similar to the Defendant on the. Opposite side of the road.

6. Mr. Chan's evidence continued that he had received a telephone call on the next day He thought  it was from the Applicant. The conversation was about the $50,000. The man at the end of the line told him that he had to hurry up to arrange payment. The amount was negotiated and brought down to $40,000. Mr. Chan promised to pay that sum.

7. On the following day Mr. Chan told the Court the Applicant "paged" him and he undertook to pay the money that evening. Mr. Chan had contacted the police and arranged that they would meet at another restaurant The police gave him a tape-recorder which he hid on his person. When the meeting tool place their conversation was recorded. A transcript of that conversation was produced in evidence The Applicant was, arrested there and then.

8. Mr. Chan's foki, Mr. Hung Ling Kan, also gave evidence for the prosecution. He said that on 24 January he saw Mr. Chan talking to the Applicant and another man outside the restaurant where he works. It appeared to him that they were arguing about something. He went closer and heard something about Tai Cheung, and money. An amount of $50,000 was mentioned. He was unable to hear what else was said because he had to go back to attend to customers, He was also present when the restaurant was damaged. He said that he noticed the Applicant standing on the other inside of the road waving to the men inside the restaurant, while they were damaging his master's property.

9. A submission of no case to answer was made but it was overruled. The Applicant neither gave evidence nor called any witnesses.

10. In his Reasons for Verdict, after reviewing the evidence relating to the blackmail charge the judge said that the Defendant was clearly one of the two present on 24 January even though it was the other man who spoke on that occasion. However, both had come together and had been together when the words were spoken. Thus it seemed to him clearly a case of Joint enterprise. The Defendant had also been present on 21 January at the time of the first visit.

11. The judge said that he found Mr. Chan to be a truthful witness who took time to answer the questions put to him. He felt this was because he was being careful in whet he told the Court. He also found Mr. Chan's foki to be honest and truthful. It seemed to him that the only reasonable inference was that it was the Defendant who had telephoned Mr. Chan on 28 January when further negotiations had taken place, and the Defendant was The only one present at the final meeting arranged over the telephone for 29 January. There was therefore clear participation by the Defendant.

12. Turning to the actual words spoken on 24 January, the judge said that whilst in themselves they might not literally be sufficient to constitute menaces, there were two other points which had to be borne in mind. The first was that clearly Mr. Chan thought they carried another connotation or meaning in the context in which they were used. The second point was that "menace" had received a very wide meaning. He needed only to refer to the well-known definition, as he put it, of Lord Wright in Throne v. Motor Trade Association [1937] AC 797 where "menace" was said not to be limited to threats of violence but included threats of any action detrimental or unpleasant to the person addressed and might include even a warning that in certain events such action was intended. He concluded that the words used were in reality a euphemism for something else which implied something detrimental or unpleasant to Mr. Chan or his business, so that they amounted to menaces. He therefore found that the elements of the 1st charge had been established beyond reasonable doubt.

13. The judge said that the unsatisfactory evidence of identification made it unsafe to convict the Applicant on the 2nd charge which related to criminal damage. He observed that he had not found the transcript of the taped conversation of 29 January of much assistance. In his view, once the obscene language had been filtered out there was not very much left. What was left was couched in such vague and intangible terms that it could not be relied upon to prove anything.

14. A number of grounds of appeal had been filed at different times in connection with this application but Mr. Alderdice, who did not appear in the Court below but represents the Applicant today, has, relied on a single ground of appeal- that the words used on 24 January were not capable in law of constituting, a menace as envisaged by the section creating the offence. He in effect submitted as his arguments developed, that the judge had been wrong to allow the case to go on after a submission of no case to answer had been made. Mr. Alderdice suggested that the words use were innocuous and lacked the Triad overtones that are so frequently encountered in other cases of this kind.

15. In our judgment the judge demonstrated by what he said that he fully appreciated what the prosecution had to prove. The judge was clearly right to rule that there was a case to answer. Whether or not the words constituted menaces was "a jury question" and the judge was, on the evidence that he accepted, entitled to the view that an unwarranted demand, with the necessary intent, had been made with menaces. In the absence of any explanation by the Applicant for his conduct on 21, 24 and 29 January, it is difficult to understand what other view the judge could have taken.

16. The effect the words had upon Mr. Chan was clearly relevant and it could not possibly be said that they would not have affected the mind of a person of normal stability in the circumstances and. manner in which they were uttered. What Lord Lane, L.C.J. described as the "second situation" in R. v. Garwood [1987] 1 WLR 319, at p.322 did not arise in this case and in our judgment the judge did not need further to direct himself upon the matter. It is suggested that the judge applied a subjective test because he recorded that the witness had said that he was apprehensive. But this does not follow without a further finding that the witness was himself not a man of normal stability. There is no suggestion of this in the evidence. In our view the judge was right in the circumstances to treat him as a man of normal stability and courage.

17. We find no merits in the application for leave to appeal against conviction and it is therefore refused.