HKSAR v. HO CHEUK ON

HCMA 1258/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1258 OF 2003

(ON APPEAL FROM TWCC 1979/2003)

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J U D G M E N T

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1. The Appellant had pleaded not guilty to offences of claiming to be a member of a triad society and inviting someone to become a member of a triad society, and also a further charge of blackmail.

2. After the trial, he was found guilty of inviting someone to become a member of a triad society which is charge 4 and charge 5 is the charge of blackmail. He now seeks to appeal against those convictions, he had also initially appealed against his sentence but I had been informed by Mr Mackay that he abandons his appeal against sentence so the appeal against sentence is dismissed.

3. Now, the prosecution case, basically, comes from PW1 who said that he was a student in February 2002 at the Methodist College when he approached the 1st Defendant and said, that he wanted to join a triad society and the 1st Defendant then agreed to help him and make the necessary arrangements.

4. One evening in February in the same year, the 1st Defendant took PW1 to a karaoke lounge and inside the room in the lounge, there were four persons including PW1 and the Appellant.

5. PW1 said he then gave a red packet, containing $3.60 to the Appellant as he had been told, beforehand, by the 1st Defendant, to prepare the red packet. PW1's evidence was that after the induction, the Appellant had told him that he would be his follower and would become a member of the Wo Shing Wo triad society.

6. The Appellant told another person to take PW1 outside the room to teach him how to, (in Chinese called "嚮躲") "tell somebody how to follow".

7. Then in the following September, PW1 said he had been asked by the Appellant to sell illicit cigarettes and it was because of that that he wished to withdraw from the society. So PW1 said he told Wong Pak-tak that he wanted to withdraw and Wong told him that he had to prepare a payment of $1,080. Subsequently, PW1 then informed his school teacher and the police were then informed.

8. An arrangement for a meeting was made between PW1 and the Appellant at a restaurant and PW2 who was a police officer would pose as the cousin of PW1 and accompany him to this meeting and PW2 was also equipped with a tape recorder.

9. PW1 said he could not remember much the conversation that subsequent by transpired. PW2 gave evidence that at the meeting on the 16 October, the Appellant had asked him about the red packet, PW2 then asked "How much?" and the Appellant said $1,080. PW2 said that it was not a problem to give the Appellant the money but that he feared that the Appellant might hit him. The Appellant then said if the sum of money was paid then they would "not do much".

10. PW2 also asked the Appellant if he really wanted the money and the Appellant then said people of higher rank would add another zero to make it $18,000, and the Appellant told PW2 that this was the rule.

11. The conversation was taped and was subsequently played in court and the context translated to the learned Magistrate. Although, admittedly, the tape was not of the best quality, nevertheless, the interpreter in court was able to interpret what was said. The learned Magistrate found that there were several parts which were indistinct but he did not consider that the indistinct portions required him to exclude the tape on the grounds of prejudice.

12. At the close of the prosecution case the Appellant elected not to give evidence and no witnesses were called on his behalf. The learned Magistrate evaluated the evidence focusing on the blackmail charge. At the end of the day, he concluded that he was satisfied that the Appellant was guilty of both charges.

13. Mr Mackay, who appears on behalf of the Appellant, had submitted that there was no sufficient evidence or no evidence whatsoever to support the fact that the Appellant had invited PW1 to become a member of a triad society.

14. The only evidence in this case was that the Appellant was present at the induction ceremony and had received the necessary red packet from the PW1. PW1 himself had volunteered to become a member. Arrangement was made, but not by the Appellant, for PW1 to attend the ceremony.

15. The learned Magistrate in evaluating the evidence did not consider or did not mention in his statement of findings on what evidence he found that the Appellant had invited PW1 to join the triad society. I note from the charge that the Appellant was jointly charged with the 1st Defendant in this case and I am afraid I am drawn to the conclusion that the learned Magistrate had wrongly considered the case against both Defendants together, and felt that the actions of the 1st Defendant had amounted to an invitation and therefore when the Appellant was present at the induction ceremony and subsequently told PW1 that he was to follow him, that also accounted to an invitation by the Appellant.

16. This was exactly the point that Miss Lam for the Respondent submitted on. I am afraid I do not agree because an invitation means in ordinary language that someone is asked to do something. There is no such invitation here. So I am therefore not satisfied that this conviction is a satisfactory one so the appeal against conviction in relation to charge 4 is allowed and the conviction is quashed.

17. Now, I come to the appeal in relation to the charge of the blackmail (charge 5). Mr Mackay complained that the words uttered by the Appellant at the meeting in October to PW2 could not amount to threat or menaces because the fact that he said they would "not do much" is equally consistent with an innocent explanation. The learned Magistrate has to look at the surrounding circumstances leading up to these words and they were uttered in the context of PW2 saying that he was afraid that the Appellant would hit him, the Appellant then said "well if you give the money back, we would not do much".

18. So, by implication, as the learned Magistrate found, there was an implied threat of unpleasant consequences from non-payment of the money. And I also had pointed out to Mr Mackay that PW2 had also said that the Appellant had also said the words "I also worry that his mother might get anxious". So taking the general atmosphere at the time and these words were indeed implicitly threating. The learned Magistrate was right to find that the words consisted of menaces and although it may not have affected the mind of PW2, who was an undercover police officer. These words, certainly, would affect the mind of an ordinary person of normal stability, so with that in mind, I am also reminded of the words of the Court of Appeal in the case in HKSAR v. Law Kwok Sang [2002] 3 HKC 496 where the Court of Appeal said that the word 'menaces' was to be liberally construed and was not limited to threats of violence, but included threats of any action, detrimental, or unpleasant, to the person addressed. It might also include the warning that in certain event such action was intended. And it was for the trial judge to determine the true meaning and effect of what was said by reference to the whole of the circumstances.'

19. So, in these circumstance, I do not find that the learned Magistrate was wrong in construing that these words did constitute a threat. And as for Mr Mackay's final complaint that the mention by PW1 that the Appellant had wanted him to sell illicit cigarettes. This was said by PW1 as the background to the reason why he wanted to withdraw from the triad society into which he had voluntary joined. No objection was taken at the trial to this evidence.

20. The learned Magistrate did refer to it but he referred to it in the context of PW1's evidence that that was the reason he wanted to withdraw from the triad society. So Mr Mackay complained that the learned Magistrate did not say in his statement of findings that he had ignored this evidence when he was considering the evidence against the Appellant on the blackmail charge. The learned Magistrate is an experienced and professional judge. He certainly did not say that because the Appellant had wanted PW1 to sell illicit cigarettes so therefore it had an effect on the Appellant's subsequent conduct.

21. It may have been desirable for the learned Magistrate to have said that he did not take the matter of the illicit cigarettes into consideration but the court has to consider the overall evidence which the learned Magistrate mentioned in his evaluation of the evidence and it is clear that the learned Magistrate did not take this fact into consideration. There was ample evidence to convict the Appellant on the charge of blackmail. I am not therefore convinced that the introduction of the evidence had any prejudicial effect whatsoever on the Appellant. The appeal against conviction on this charge of blackmail charge 5 is therefore dismissed.