THE QUEEN v. MIU FAI (D2) AND OTHERS

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JUDGMENT

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McMullin, V,-P. :

1. The four applicants were convicted in the District Court of blackmail contrary to the provisions of Section 23(1) of the Theft Ordinance.  Another man, originally the first defendant LI Leung, is not an applicant before the Court today.

2. The complainant in the case, SO Kam-chung, came to Hong Kong in 1978 illegally. Thereafter he engaged in a trade with persons who used fishing boats along the China coast.   This trade involved the sale of clothing and watches.  It does not seem to have been seriously in dispute that some at least of this trade was related to the smuggling of these goods.

3. Shortly before the events with which the case was concerned he had given up this trade and taken a job with the On chuan Enterprises, a business in which the 2nd defendant MIU Fai was already employed.

4. There appears to have been some disputes between him and the 2nd defendant although the evidence does not clearly disclose what the nature of the dispute was.  At all events, according to the complainant, the ultimate confrontation which resulted in the present proceedings appears to have involved two suggestions.  One was that the 2nd defendant, MIU Fai, wanted compensation for what had been done to him and secondly, that the complainant had, in the course of his smuggling activities, incurred debts which he owed to the relatives of a man called LEE Wan-sun and which he was unwilling to pay.

5. Some 7 persons in all were involved in the events which were described by the victim. These included the present four applicants and three other persons.

6. The case for the crown was borne almost exclusively by the complainant whose testimony was to the following effect. On the 31st of August he was at his work in the On Chuan Enterprises premises.  At about 2:30 that day the 4th defendant SO Yau-ki and LEE Wan-sun came there and having got permission from the supervisor to interview the complainant, asked him to come and discuss some business with them. He had known the 1st defendant for some 13 years prior to that, but he did not know LEE Wun-sun. He was suspicious of this invitation and he refused to go. The two men went away.

7. Shortly after that at about 3:00 p.m. the 5th defendant, LAI Kun, and the 1st defendant, LI Leung, came and once again asked to see him. Originally, it would seem that the 5th defendant was waiting outside in a motorcar but at some stage he joined the other man and there was a conversation between them and the complainant.  It began with an invitation to come and discuss some matters with them at tea.  It was clearly indicated that he should accompany them whether he willed to or not. The invitation was reinforced with threats of various kinds including the suggestion that if the defendant did not accompany them, he might "meet melon knives" on his way from work. Under this persuasion, the complainant evidently thought it better to accompany them. He was driven by the 5th defendant, together with the 1st defendant in the motorcar to the Yau Tong Restaurant arriving there at about 3:30.

8. They took him to a table in a corner of the restaurant and they all sat there.  The first defendant then went and made a phone call, and then rejoined the other two.   Shortly after that the 2nd defendant and the 3rd defendant; CHEUNG Lap arrived and joined them at the same table. With this CHEUNG Lap had not previously been known to the complainant.  The third defendant claimed to be the uncle of the second defendant and he observed that the second defendant was "a follower" of the fifth defendant.   It may be observed at this point that, in view of the nature of the threats uttered by the first defendant earlier and this identification of the fifth defendant as somebody "being followed" by the second defendant, it would be very unlikely that any person - particularly persons from the background of these defendants and of the complainant - would be unaware that something in the nature of a triad association was being suggested.

9. The conversation proceeded.  The second defendant made some remarks to the general effect that they had spent several thousand dollars and that the complainant must settle the account.  The third defendant broke in to say that they had been looking for the complainant on the previous day. He added that there had been ten people with melon knives in a seven-seater car.

10. Then the 4th defendant, SO Yau-ki, and LEE Wun-sun arrived, the time being almost four o'clock. LEE Wun-sun took the complainant aside to a corner of the room and struck him on the chest.  He said that the complainant had cheated his - LEE 's- relatives and must pay up.

11. At this point the fifth defendant, who appeared to be presenting himself in the guise of a mediator, intervened to say that they should not make trouble but should discuss the matter.  He then led the complainant back to the table where there were at that time including the complainant seven people sitting down together.

12. At this point, another man HUI Hau-yee arrived. The fifth defendant asked LEE Wun-sun how much money he said his relatives had been cheated of by the complainant. According to SO, LEE did not reply but the fourth defendant said that the matter involved was a thousand wrist watches and three hundred thousand dollars. LEE Wun-sun, however, said it was not 300 thousand but 30 thousand only.  The complainant denied that he owed anything, whether wrist watches or money.  He was then struck by the fourth defendant and LEE Wun-sun on the chest and on the back and he fell down.  He said that he was confused at that point and wasn't too clear that who was standing immediately about him.

13. It would appear that the fifth defendant had, just about then, left the table but he must have been an observer of this assault because, immediately thereafter, he approached SO, who was still upon the ground, and said "Will you pay up now?"

14. At this point, understandably, SO was prepared to agree to pay money. The sum that he mentioned was twenty-five thousand dollars.  He was permitted to phone his wife the purpose being to ask her to get the money.  He returned to the table with the first defendant and an offer of fifteen thousand dollars was made.  This suggestion came from the fifth defendant who represented himself as one who had persuaded the others to accept this lesser amount.  Despite this reduction however SO said that it would be very difficult for him to get so much money.  The fifth defendant then made a somewhat cryptic but alarming observation to the effect that SO might understand that it sometimes occurred that persons were taken up the hill and died there without reasons. Immediately thereafter LEE Wun-sun, the fourth defendant, and the fifth defendant seized the complainant and tried to force him out of the restaurant in the direction of the car.   The second defendant and HUI were following. On the way, according to the complainant, LEE, and the fourth and the fifth defendant kept hitting him. He was poked with a key by the fifth defendant in the chest. The first defendant and HUI stood by. He was not taken to the car however but was once again taken back into the restaurant and assaulted by the same three men on the way.

15. At this point, one would think someone belatedly, a waiter in the restaurant intervened and besought these men not to make trouble.  He was very quickly told to mind his own business and prudently he made no further intervention.

16. The fourth and the fifth defendants and LEE then hustled the complainant up to the first floor, the others remaining below.  He was made to sit in a chair and was then permitted to make another phone call to his wife. At the request of these three men he told her to get some money. He was detained there until 6 p.m. when he made a further phone call, the same three men standing guard over him all the time.  After this phone call the fifth defendant went downstairs for a meal. The first defendant and HUI came upstairs and joined the fourth defendant and LEE. Shortly after that the first defendant went downstairs.  HUI asked the complainant if he could pay up. HUI and the fourth defendant were on guard at this point. Shortly after that, the complainant's wife arrived the time being shortly after 7 o'clock. In the presence of the wife and the fourth defendant, HUI said that his "big brother" had taken over and he HUI could not help SO any longer.  The complainant then made out a cash cheque for $10,000 and promised to bring another $5,000 to the Yau Tong the following day. He was told that the cheque would do in earnest of cash but he must come the following day with cash to exchange for the cheque.

17. After this, he and his wife were permitted to leave the restaurant.  He told the court that on his way out of the restaurant he observed the other four men still at the table at which they had originally been sitting. He and his wife then reported this matter to the police, and a trap was laid for the following day but none of the defendants turned up.

18. Eventually, the four applicants were arrested upon different days.  They were charged with this offence. Before that they had been cautioned in the usual way, and each of them, and also LEE Leung, the first defendant, made statements which were introduced in evidence.

19. The complainant's wife gave evidence which, insofar as she had taken part in the events described, supported the story given by her husband.

20. The case depended almost entirely upon the evidence of the complainant SO.  The fifth defendant, LEE, was represented by Mr. Rowdy.  He takes a number of points.   Firstly, he says that the Judge fell into error in dealing with the evidence globally without differentiating between the activities ascribed to each of them by SO and more particularly by failing to differentiate between them by virtue of what each had said in his cautioned statement.

21. The Judge obviously did rely upon these statements to some extent.  He observed that they were useful to the prosecution to the extent that each statement admitted presence in the Yau Tong Restaurant upon this occasion.  But, each, in his statement, according to the Judge, had denied taking part in the blackmail endeavor.  Counsel underlines what he deems to be the judge's faulty approach by reference to the fact that one of the defendants had actually admitted to participation in blackmail.  The statement of LEE Leung, the first defendant, contained the admissions which would amount to participation in such an offence.

22. Undoubtedly there are cases when the evidence touching the case of each of several defendants will require very close scrutiny regarding the details of the prosecution evidence against each particular defendant.  But this criticism is not one which we think touches the present case since, if SO's evidence is to be accepted at all, it describes a sequence of events, covering several hours, in the course of which each of the defendants and all the present applicants took an active part in threats and in physical abuse designed to extort money from the victim.

23. Even although the cheque was written out upstairs and not in the presence of at least four of the defendants, what I have described already as having occurred, according to SO, on the ground floor of the restaurant makes it quite clear that everybody present was well aware that the complainant was not to be allowed to leave the premises unless he made a promise to pay money. And SO's final evidence was that all the defendants were present, some upstairs, some downstairs, at the time he quitted the restaurant.

24. The next ground concerns the statements made by the applicants.  All five defendants made statements.  All of these statements were admitted without challenge.  The fourth applicant is not complaining of that but Counsel says that the Judge should not have admitted at least two of these statements.  In MIU Fai's (the second defendant's) statement, while largely exculpating himself, he did make reference to the fifth defendant as a "big brother of Fuk yee Hing Triad Society''.  Again, in the third defendant's statement there is an answer to a question in which, referring to the fifth defendant the third defendant says that it was Lai Kun, the fifth defendant, who "found Kam Chung to talk". Undoubtedly this suggests that Lai Kun was the initiator of whatever occurred in the restaurant. Now this criticism could well have been one of some seriousness if this damaging evidence had been the only source to which the Judge could have referred in respect of the character of the fifth defendant. Counsel stressed the fact that the fifth defendant had received the heaviest sentence imposed upon the defendants and he said that this was an indication that the judge had relied upon this matter which, counsel would maintain, should have been excluded.

25. However, it is clear from the recital already given; that in SO's evidence if it is to be believed at all, the fifth defendant was being referred to as a "big brother" without any disclaimer on his part. Counsel suggests that, in any event, although no challenge was made, the Judge should have excluded these statements - proprio motu.  There are occasions on which a Judge will be well advised at least to bring the attention of the counsel to the possible prejudice in such a statement as against its possibly weak nature as proof in inviting objections thereto. We do not think however that, in the present circumstances, the Judge was under any such obligation, nor do we think that such prejudice can have resulted to the fifth defendant from the statements of the second and the third defendants as would invalidate the conviction.

26. Then it is said that the Judge did not pay sufficient attention to the possibility that SO had a motive for speaking untruthfully against the defendants. There is no doubt that SO was accepted by the court as having a somewhat unsavory background as a smuggler and possibly as a person who had been dealing with illegal immigrants. The Judge in his reasons said :

"From cross-examination and some of cautioned statements there seems to be a vague suggestion that the complainant owed LEE Wun-sun's relatives some money and LEE was trying to get the money back in a lawful and legitimate way with the assistance of some of the accused.  It was specifically denied by the complainant, I find there is absolutely no subsistance in this suggestion it is merely a pretext to extort money."

In view of the background it is said that the Judge too lightly dismissed the possibility that this was indeed an endeavor to treat with the applicant in respect of what was regarded as a legitimate debt. Counsel points out that the complainant had traded in watches in this devious way and he admitted that what was being said against him was that he had cheated the relatives of Lee.  Undoubtedly therefore there was a foundation for the possibility of a grudge on the part of SO but we cannot say that this objection is in the circumstances a serious one.  All of this was apparent to the Judge who dealt with the evidence in somewhat greater detail than is perhaps familiar in cases coming from the District Court and indeed more than is obliged by the law.  We cannot believe that he did not have it in mind that some such motive could have played a part despite the fact that he discounted it in the end.

27. We must also observe even if there had been such a belief in the minds of the defendants or of any of them that there was a legitimate claim that could be made this was certainly not a legitimate way of trying to exert it.  The suggestion here is, presumably, that if there was a legitimate claim SO is lying about the way in which the men who confronted him were trying to have it repaid. This is a possibility which the Judge must have been well aware of.  There was a disturbance in the restaurant quite different from anything which has been admitted to in any of the statements. This is borne out by evidence given by the waiter to the effect that he had tried unsuccessfully to intervene to calm the scene.

28. Then it is said that the Judge too lightly disregarded a possible motive for incriminating the defendants arising from the alleged trade in illegal immigrants.  We understand that the wife of the complainant was arrested and was brought to court and was charged with such an offence and that she was convicted and sent to prison.  Counsel agrees that the Judge correctly noted that the complaint about blackmail was made on the 31st of August. That is the day before the arrest of the complainant's wife.  But he points out that is long before evidence was given in court. That is, of course, true.  The judge did not specifically advert to the possibility that the complainant, if he suspected that the defendants had revealed the existence of illegal immigrants to the police, would not bear good will towards the defendants.  Again, a suggestion which in the circumstances we cannot think to be one of substance.

29. Lastly, it is said that the Judge did not give sufficient attention to inconsistencies in the evidence of SO.  It appears that SO did tell the police, when he was making his complaint, that the third defendant did not beat him up whereas in his evidence he said that he had been beaten by the third defendant.  He explained this by saying he lied to the police out of fear because the police, in their turn, had accused him of something else.  Finally he said that he was confused at the time. Counsel takes issue with the manner in which the Judge dealt with this.  The Judge was aware that there had been this change of story on the part of SO.  He referred to what had happened in the restaurant as "tedious and confusing" and he ascribed the change in story to confusion, which was one of the explanations given by the complainant himself.  We do not think there is a fault in logic or indeed in common sense on the part of the Judge.   The vagaries of human memory are notorious, and it seems unlikely that the complainant in making the complaint which caused the arrest of these five men would have been concerned to falsify just one particular element of his story in that way. For these reasons we cannot say there is sufficient substance in the grounds alleged against the conviction of the fifth defendant to require our interference.

30. The other applicants were not represented upon the hearing of the appeal. The second, the third and the fourth defendants all allege that SO (the complainant) gave evidence against them because of a grudge.  MIU Fai, the second defendant, says that SO told the police that the second defendant did not blackmail him.  We were informed by Counsel for the Crown that SO's statements were available among the pre-trial papers which were in the hands of the solicitors for the defendants. The only part of SO's evidence which was at variance with what he had told the police involved that change of story to which I have already referred.

31. Then MIU Fai says that this trouble was all caused by his quarrel with SO. It appears that there was some such trouble though its nature was never made clear.

32. Finally, MIU says that it was because money was owed to LEE's relatives. All of this was before the trial judge.

33. The third defendant says that the wife of the complainant said that all of the defendants were present at the time and that she should not have been permitted to say so as this was by way of a dock identification.  He like the other three non-represented defendants alleges that he did not give evidence because his lawyer persuaded him not to do so. He goes a little further by saying that he actually wanted to give evidence. We cannot accept that suggestion.  We have no doubt that they were all properly instructed concerning the choice whether or not to give evidence and that the choice was made freely by each of these three defendants. Then the third defendant also says that he is being framed because SO suspected that he was involved in informing the police that SO's wife was harbouring illegal immigrant.

34. The fourth defendant, SO Yau-ki, who like the others did not give evidence now gives an elaborate story to the court alleging that he had only gone to the Yau Tong that day after his work to make a phone call and he was persuaded to join the fifth defendant and SO Kam-chung for tea.  He left shortly afterwards and was later approached by the fifth defendant with some story concerning a sister of a friend of the fifth defendant who the fifth defendant suspected had been introduced illegally to Hong Kong by SO Kam-chung and who might be introduced to some illegal or immoral occupation.  He says he was asked by the fifth defendant to investigate and see if the girl was in SO's premises. He did was told by SO that he had left the Illegal Immigrant business. Later he saw SO leaving a restaurant with two girls who he suspected to be illegal immigrants and he informed the fifth defendant of this.  This story was advanced in support of the idea that the fourth defendant also had fallen under suspicion by SO who might have thought that the fourth defendant, in common with the others, had sought to inform upon the complainant. We cannot at this stage give any countenance to this endeavor to give evidence, nor car it be said that the story has a very realistic ring to it.

35. We find nothing in the grounds submitted to us by the several unrepresented defendants which would cause us to believe that the Judge in any way misread the evidence or came to the wrong conclusion in their regard.  For these reasons therefore the applications of all the applicants will be refused.