R. v. WONG SAI KIT

IN THE COURT OF APPEAL

1995, No.794
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced 13 charges. They involved the alleged extortion of protection money from three construction sites on Tsing Yi Island between October 1994 and March 1995. The three sites involved were the Wan Chung site, the Leighton site and the Downer-Zublin site. The Wan Chung site were involved in seven of the charges. They were charges 7 to 13, one was a charge of blackmail and the other six were charges of theft. The blackmail charge involved a demand for a protection fee by the applicant which was made in October 1994 and the six theft charges related to six payments of $3,000 per month which were made in the following months.

2. After voire dire proceedings the judge admitted only the first and the fourth of five cautioned statements.

3. The evidence of the blackmail demand (Charge 7) at the Wan Chung site came from a Mr. Ip, the site supervisor of Wan Chung, who told of the demand made by a man who said his name was Chan for a job as a "watchman" for a "protection fee" of $3,000 per month. He said that the man gave him a piece of paper on which were written the applicant's name and his bank account number. The moneys were paid into that account. Mr. Ip did not identify the applicant as the man Chan when he attended an identification parade.

4. The applicant gave evidence saying that the payments were made to him because he worked as a part-time night watchman. Under caution he had said that the moneys were paid because he held the position of "nominal watchman". It was his evidence that his first cautioned statement in which he made this admission was concocted by the police. As to this evidence the trial judge said:

"I did not believe the Defendant's evidence. It came across as a tissue of lies concocted in order to show how $3,000 per month of undoubted 'tor tei fees' as described by Mr. Ip found their way into his bank account and in a vain attempt to explain what he was doing collecting further 'tor tei fees' on the day of his arrest."

5. The Leighton site was involved in charge 4, a charge of blackmail. It was an admitted fact that two males came to the Leighton office in February 1995 and there saw Mr. Au, the site manager, and that:

"One of the males, claimed to be surnamed Chan, told Chan Tsung-sung that he was a 'Tsing Yi Tor Tei', and his purpose was to collect protection money from the person in charge of the construction site. The male who claimed to be surnamed Chan also left the pager number 1172 14128 to Chan Tsung-sung for the person in charge to contact him later. On the same day Chan Tsung-sung gave this pager number to his supervisor Mr. Au Leung-fai. Subsequently, Chan Tsung-sung attended an identification parade on 14th March but could not identify the Defendant in the line up."

6. On 7th March 1995, a report was made to the police. In his fourth cautioned statement the applicant said:

"I have been to the Lai Lap Construction Site to ask to see the person in charge, but he was not found. So, I left behind a pager number at the site. Afterwards the person in charge of the site who was surnamed Au called me a couple of times. I talked to him over the telephone asking to collect a watchman fee of $8,000 per month'.

The following exchange takes place in the statement:

"Q. What is a watchman only in name?

A. It means the protection fee for 'tor tei'.

Q. Wong is your surname. How come it was one surnamed Chan that had contacted the site?

A. I just said offhandedly that I was surnamed Chan.

Q. Do you have a mobile telephone or pager?

A. I have. The mobile phone number is 9486 7385, while the pager number is 1172 14128."

7. The applicant when he gave evidence denied any involvement in the alleged extortion saying that the statement was concocted by the police. The trial judge, however, accepted that the admissions were true and was satisfied that they were conclusive in showing involvement by the applicant in the offence.

8. The Downer-Zublin site was involved in charges one to three, a blackmail charge, a theft charge and a charge of claiming to be a member of a triad society. Mr. Wong, a site engineer, said that on 17th February 1995, three or four men came to his office and after preliminary conversation one said "We take a fee of $8,000 per month and your site will be trouble free". Mr. Wong told of another demand which was made phone about a week later. The matter was reported to the police and in the outcome a police undercover officer met with the applicant who said that his name was Wong and told the officer:

"I am Tsing Yi tor tei. I am of Lo Fuk, now your site has to pay a protection fee of $8,000 per month, you may enter this up as a watchman's fee so that your company can account for it.

The Defendant added 'after I have got the money no one will come to disturb the site'. When Mr. Ng (the undercover police officer) prevaricated the Defendant said:

'Look you must pay this sum or else machinery at the site might be damaged, you will suffer a greater loss financially if the site is unable to start work. You must give me a reply, whether you pay or not. Don't leave the matter without an answer. If your company is not paying my brothers will do something'."

9. The fee was then negotiated down to $7,000 per month and it was arranged that the applicant would return a few days later to collect it. On 10th March the applicant duly arrived and the undercover officer handed him $7,000 made up of four real $500 notes and ten photocopies of $500 notes. These were placed in an envelope which was handed to the applicant. While he was putting this envelope in the inside pocket of his jacket the undercover officer called in his police colleagues who were waiting nearby.

10. The applicant had, in his first cautioned statement, said: "I went to collect the local hooligan fee at the site of Downer Zublin Joint Venture". In evidence the applicant said that he was at the site on the 7th and 10th March seeking a job as a watchman and that he was never given any envelope. The trial judge in relation to this charge rejected his evidence and said that, on the evidence of the police officers and of the admissions, he was satisfied of guilt.

11. There was one further charge of membership of a triad society which arose out of a clear admission of membership which was made by the applicant in his first cautioned statement. The trial judge was prepared to act upon the basis of this admission and he was convicted also of that charge.

12. There was one remaining charge, the 6th charge, one of criminal damage, upon which the applicant was acquitted as the trial judge was not prepared to admit the second cautioned statement which was the only evidence which would have supported this charge.

13. The applicant had, in all, made five cautioned statements but the trial judge was not prepared to admit the second, the third and the fifth of those statements. He refused to admit the second statement because the critical admission therein was unsigned. It was the evidence of the sergeant who took the statement that he had forgotten to get a signature. The trial judge accepted that that may well have been the case but applying what he referred to as "the highest standards ..... in scrutinizing cautioned statements", he considered that it would be proper for him to reject that statement which he did. He rejected the third cautioned statement because the sergeant did not reflect in it that he had, in the course of taking the statement, gone over files and talked with the applicant about their contents. The trial judge said:

"However, the Sergeant was honest enough to admit these 'outside activities' during this statement-taking so my ruling against the admissibility of this particular statement does not generally impugn his honesty as a witness."

14. As to the fifth statement, the trial judge seems to have rejected it because he considered that the magistrate who remanded the applicant in custody at the time when he was first charged must have done so upon the basis that no further questions would be asked of him about the offences charged and that, as such questions were asked in that statement, it would be unfair to allow it to be produced.

15. When dealing with the admissibility of cautioned statements the primary matter for the court's determination is whether the statement was made freely and voluntarily. Bearing this in mind we are left in some doubt as to the correctness of the judge's approach which seemed to have been governed primarily by a consideration not of voluntariness but of the "fairness" of what had occurred. However that may be the fact of the matter was that three of the statements were ruled inadmissible and were not before the court.

16. The applicant argues six written grounds. In the first he suggests that as six witnesses were unable to identify him as the blackmailer, this should have raised a doubt as to whether he had participated in the offences. The trial judge was well aware of this matter. It was his duty having heard the witnesses and having assessed the overall impact of their evidence, to decide what evidence he accepted and what he rejected. He had no hesitation, as we have already indicated, in rejecting the evidence of the applicant and in accepting the evidence of the prosecution witnesses and the truthfulness of the admissions made in the statements. There is nothing in this ground.

17. In his second ground the applicant suggests that, as a draft contract relating to his employment as a watchmen existed, this should have given some doubt as to whether the Crown evidence in relation to the Wan Chung Construction site could be relied upon . The trial judge was fully aware of the existence of that draft. It occasioned him no doubt as to the correctness of the Crown evidence. There is no warrant for the suggestion to us that it should have.

18. In his third ground the applicant, in effect, suggests that the trial judge was wrong to have admitted the statements, particularly the first statement, saying that the whole of Sergeant Cheng's evidence was so tainted by the fact that he had not satisfactorily explained how it was that he took six hours to take the statements that it should have been rejected.

19. The trial judge in his Ruling on Voire Dire said:

"This defendant was arrested at 13:40 hours. On 10/3/95. He was subsequently taken to Kwai Chung police station where he was questioned by Detective Sergeant Cheng Chan Wah between 17:40 hours and 23:50 hours without a break. He had not been given any food prior to the statement-taking and was not fed during it. Neither did he have any rest during the statement-taking. 6 hours and 10 minutes of statement-taking during the evidence and night is hard work by any standards. The concentration required to protect one's interests whilst being questioned on a variety of offences would be enormous, I believe.

On its fact I'd have to say that in the circumstances of this case, which did not involve, e.g. an on-going investigation into offences such as kidnapping where innocent lives might be at risk, such lengthy questioning was probably oppressive.

However, the defendant has not given any evidence that he found the duration of such statement-taking oppressive and there is no need for me to make such a ruling in any event, for reasons as set out hereunder.

The 1st statement ........... I find that the defendant gave this statement voluntarily and so I rule it admissible into evidence."

20. The trial judge in his Reasons for Verdict said:

"This statement was admitted into evidence following a voire dire in which the prosecution satisfied me that the Defendant had given it voluntarily and that it was an accurate record of the questions and answers asked. It is a long, rambling statement in which the Defendant gives information on various triad extortion rackets he'd been engaged on over the previous few months at building sites. The Defendant alleged in cross-examination (but not in his own evidence in the voire dire) that the answers therein were all concocted by the interviewing police sergeant. However, apart from the oral testimony of the police witnesses, such is the rambling and non-sequential nature of this statement that I believe it flows from the voluntary will of the defendant and could not have been invented by the sergeant."

21. The decision as to the admissibility was essentially one for the trial judge. He gave clear reasons justifying his decision to admit the statements. Nothing that has been said that would allow us to interfere with that decision.

22. It is not necessary to deal with the fourth ground as the applicant is making complaint therein about a statement which the trial judge refused to admit.

23. The fifth ground also challenges the voire dire ruling. The applicant suggests that he was overborne by the poor conditions which he had to suffer in the police station. We can add nothing to our observation when dealing with the third ground that admissibility was a question of fact which was essentially for the trial judge.

24. The sixth ground which also deals with a statement rejected by the trial judge raises no arguable ground.

25. In the face of this court the applicant has again urged that the convictions were unfair saying that he signed under duress and that he is not guilty. All of the further matters which he raises are essentially matters of fact which were for the decision of the trial judge. They were properly considered by him. He rejected the evidence of the applicant having found him wholly unworthy of credit. Nothing has been urged which would allow us properly to interfere with his assessment in that regard. There was ample evidence to establish that the applicant was a triad bully involved in systematic extortion from the owners of building sites. His application for leave to appeal against conviction must, therefore, be refused.