HKSAR v. WONG YAN MING AND ANOTHER

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JUDGMENT

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Nazareth V-P (delivering the judgment of the Court):

1. The 2nd applicant was charged and tried before Her Honour Judge Toh in the District Court on five counts. The 1st applicant was charged and tried with him on the 4th and 5th counts. The charges in the five counts were as follows. The first count was claiming to be a member of a triad society, contrary to s.20(2) of the Societies Ordinance (Cap. 151) in that the 2nd applicant, Lo, on or about 26 January 1998 at the Shek Kong Wai Car Park, Tin Shui Wai, claimed to be a member of a triad society, namely, the 14K Triad Society. The second count was of blackmail contrary to s.23(1) and (3) of the Theft Ordinance (Cap. 210) in that Lo on or about 26 January 1998 at the same time and place, together with another person unknown, with a view to gaining for himself, made an unwarranted demand of HK$3,000 from Ng Tsz-hung, with menaces. The third count was theft contrary to s.9 of the Theft Ordinance (Cap. 210) in that Lo at the same time and place stole HK$3,000 in cash, being the property of Ng Tsz-hung. The fourth charge (against both applicants) was of blackmail contrary to s.23(1) and (3) of the Theft Ordinance (Cap. 210) in that the two applicants on or about 1 February 1998, in the Shek Kong Wai Car Park, Tin Shui Wai, together with another person unknown, with a view to gaining for themselves, made an unwarranted demand of HK$30,000 from Ng Tsz-hung, with menaces. The fifth charge (against both applicants) was of assault occasioning actual bodily harm, contrary to common law and punishable under s.39 of the Offences against the Person Ordinance (Cap.212) in that the two applicants on or about 1 February 1998 in the Shek Kong Wai Car Park, Tin Shui Wai, assaulted Ng Tsz-hung, thereby occasioning him actual bodily harm.

2. Lo was convicted on the 2nd, 3rd and 5th counts and sentenced to the following respective terms of imprisonment - count 2 (i.e. blackmail, 26 January 1998) 3 years; count 3 (i.e. theft, 26 January 1998) 2 years; count 5 (i.e. assault occasioning actual bodily harm, 1 February 1998) 3 years. One year of the 2-year sentence on count 3 was ordered to run consecutively to the 3-year sentence on count 2; and one year of the 3-year sentence on count 5 consecutive to the sentences on the other two charges, making a total of five years.

3. The 1st applicant, Wong, was convicted on only the 5th count and sentenced to 3 years imprisonment.

4. Lo now seeks leave to appeal against his conviction on counts 2 and 3. He also seeks leave to appeal against the sentences in respect of counts 2, 3 and 5. Wong seeks leave to appeal only against his sentence in respect of count 5.

5. It is convenient to begin with Lo's convictions under counts 2 and 3. We turn then to outline the facts so far as necessary for that purpose. The main evidence for the prosecution came from the victim, Ng Tsz-hung (PW1). A summary of this can conveniently be taken from the judgment below. PW1 was a construction site worker. On 26 January 1998 he received a telephone call from a person who said he was "Tai Ma Sing". The latter, he said, asked him to buy tangerines from him and told him to go to a place near his construction site. It should be explained that "tangerines" was the expression used below to refer to the potted citrus plants in fruit, commonly displayed in Hong Kong each Lunar New Year. When PW1 went to the designated spot he saw two persons there. One was Lo, whom he subsequently identified. The spot where he met the two was along the Shek Kong Tsuen Highway. PW1 said the two persons asked him to buy a pot of tangerines and wanted $3,000 for them. PW1 told them they were too expensive and he did not want them. Then the person he called "fat guy", whom he subsequently identified as Lo, told him that "he could not not pay". So PW1 said he had no alternative, he felt, but to give the money. He then took the two pots of tangerines, photographs of which were exhibited. PW1 said he did not want any trouble on the site and that is why he paid the money. His exchange with the two persons lasted about 15 to 20 minutes. At that time, it was dark. There was no sunlight but only light from street lamps but he said that the faces of the persons could be clearly seen by him.

6. On 1 February 1998, PW1 said, he was having tea in the afternoon in the Shek Kong Wai Car Park when a group of people came to perform a lion dance. One of the persons approached him and asked for a lai see. He said the person was Tai Ma Sing, whom he had mentioned. PW1 told the person that he had already paid and when he made to leave, one of the group approached him as he was on his way to his car and asked for his mobile phone number. He subsequently identified this person as Wong. PW1 said he refused to give his mobile phone number and when he walked to his car, he was assaulted with fists, kicks and something hard. He said this first assault lasted about 10 minutes and after a break of about 5 to 10 minutes, he was assaulted again by the same group of people. Initially, he said that during the break between the two assaults, he was asked to give lai see of $30,000. He also identified both Wong and Lo as having taken part in the assault. He said that there were about four to five people assaulting him but he only paid attention to "one or two of importance".

7. PW1 ended up by saying that he was not sure who had actually asked for the $30,000 but at the time the demand was made, Wong and Lo were assaulting him. Under cross-examination, he agreed that the person with Lo on the first occasion when $3,000 was handed over was actually Tai Ma Sing and he also agreed that at the time of the assault, it was very confusing; but before the assault, it was not confusing. PW1 did not agree with defence counsel that it was a fleeting glance he had of Wong, because he had spoken with Wong and because Wong had asked him for his mobile phone.

8. The judge in outlining the facts in her judgment then proceeded to the medical and other evidence which it is not necessary to set out in detail. She noted that at the close of the prosecution case the defence called no evidence, as was their right, after she had ruled their cautioned statements were inadmissible. She added that she did not believe Lo's evidence on the special issue that either of the applicants were assaulted or threatened or that they were deprived of their dinners. She ruled out the statements solely for the reasons she had given. She then continued in the following way:

"I was impressed by the evidence of [PW1] in the witness-box. He gave his evidence frankly and was at pains to be fair to the two defendants particularly in relation to the demand of $30,000. He was a truthful witness and I have no hesitation at all in accepting him as an honest witness..."

9. Mr Wong Po Wing for Lo, who did not represent him below, commenced his submission with Lo's third ground of appeal, i.e. that the judge erred in convicting him of offence of blackmail (second count) and theft (third count) when there was no or no sufficient evidence of menace coming from Lo during the incident on 26 January 1998. He made the following points. The words uttered by Lo did not contain any threat. Nor did the background and circumstances imbue them with such a meaning. PW1 did not say he was scared and in any case the test is an objective one, whereas the judge appears to have applied a subjective test or no test at all.

10. While the words used by Lo might not have contained an express threat, seemingly innocuous words may be given a sinister meaning by the circumstances and the manner in which they are used. That the two applicants were linked to the earlier telephone call would be an entirely reasonable conclusion that the judge clearly must have reached. It is difficult to see what other explanation there could be for the two to have been at the specified spot, with the pots of tangerines and to have insisted that PW1 pay an excessive price for the two pots despite his saying that he did not want them. Moreover, PW1 testified to the words that he "could not not pay", being spoken fiercely by Lo. Even without the construction site connection, but a fortiori in the light of it, we think it plain that an ordinary Hong Kong person would understand the menace in the words spoken in those circumstances in that manner.

11. PW1 clearly did not wish to pay $3,000 for the tangerines; yet he succumbed. When asked why, he said in evidence "If I did not pay my construction would have troubles". Clearly, the judge was entitled to conclude, as it is implicit she did, that Lo's words operated upon his mind.

12. It is not in dispute that the test of whether menaces or threats operate on the mind of the victim is an objective one. In the words of different courts, the menaces or threats must be such as to influence the mind of a person of normal stability (Reg v. Garwood [1987] 1 WLR 319) or to influence the mind of an ordinary man of normal stability and courage (R v Clear [1968] 1 QB 670; 679E) or of the mind of a man or woman of normally robust temperament (R v Wong Chung Ming [1985] 1 HKC 625, 626C). This brings us to whether the judge applied the right test. As a District Court judge she was not required to set out all her reasons and it must follow that unless there is some indication that she did not adopt the correct test, it seems to us that it must be assumed that she did. Mr Wong's submission in point here is that in stating that "PW1 was obviously concerned about the safety of the site", she was apparently applying a subjective test. We are unable to accept that submission and the suggestion that PW1 may well have been a person of exceptional temerity. We reject this ground of appeal. While that was a matter for the judge, we feel bound to say that whatever may be the circumstances in England in the context of English authorities cited by Mr Wong, in Hong Kong circumstances it is difficult to see that an ordinary person of normal stability placed in PW1's position would not construe the words as a threat of the sort that PW1 did, and also respond in a similar manner.

13. Mr Wong turned next to Lo's first ground of appeal, attacking the judge's acceptance of PW1's identification of Lo. The only point here that we think may merit mention is a possibly mistaken reference by the judge to PW1 to having seen Lo on some occasion prior to the first incident, i.e. that on 26 January. Mr Wong, without contradiction by Miss Catherine Ko for the respondent, says that there is nothing in the transcript of evidence to that effect, and that it is a material misdirection of fact. We do not agree. The judge very carefully considered the matter of identification of Lo by PW1, going even to the Turnbull guidelines (63 CrAppR 132). However, even if it is assumed that the reference made by the judge was mistaken and that it was nonetheless taken into consideration by the judge, it is perfectly clear from the overwhelming weight of the judge's other reasons that she would have inevitably come to the same conclusion. We accordingly also reject the submissions on the first ground.

14. We proceed then to the remaining ground, i.e. the second ground. It was in substance this. The judge concerned herself essentially with the written statements. Mr Wong complained that she did not mention the oral admissions made that same morning and therefore that she did not have regard to them. Had she done so, he submits, she may well have formed a favourable view of Lo's version of events, he having given it so soon after his arrest. We have to say that we do not accept that because the judge did not mention the earlier oral admissions, she did not take them into account in her consideration of the evidence. Nor, having regard to the way she approached the evidence and the care with which she dealt with the matter of identification, do we feel able to accept that submission. We feel bound to say that it does not merit any further consideration nor do the authorities upon which Mr Wong sought to rely in that regard.

15. In the result we have no hesitation in concluding that there is no merit in the grounds relied upon in support of the application for leave to appeal against conviction, which is dismissed.

16. We turn then to the applications of the two applicants for leave to appeal against sentence. We begin again with the application of Lo. The judge dealt with the sentences imposed against him in the following way:

17. It is convenient to begin with the sentences on the 2nd and 3rd counts. Mr Wong submits that the scheme of blackmail was not sophisticated nor did it extend over a protracted period of time. There is, he submits, no evidence indicating or suggesting that Lo obtained any benefit from the incident. The $3,000 referred to in the 3rd charge referred to "Tai Ma Sing" and there was no evidence that any of it found its way to Lo. We have to say that we are not attracted by these submissions. The offence of blackmail here was a serious offence of a sort long prevalent in Hong Kong. We do not accept that 3 years was manifestly excessive.

18. Mr Wong also complained that one year of the 2-year sentence on the 3rd count ordered to run consecutive to the sentence imposed on the 2nd charge was not justified as both these charges related to the same alleged incident on 26 January. We agree. Indeed, we have some difficulty in understanding the justification for the two separate counts, blackmail and theft, being laid by the prosecution in respect of a single transaction. The demand in the blackmail offence was for the $3,000 that was successfully obtained. A single charge and sentence would in effect have coped with both the blackmail and theft. If a separate sentence was attracted by a separate charge of theft, it would in principle have to be concurrent. Moreover, that would most likely always be the case. We question whether the practice of charging both blackmail and theft in such cases can be justified. However that may be, we cannot see how the sentence on the theft charge, count 3, could be properly made to run other than concurrently with that on count 2. We will return to the consequences of that conclusion.

19. We turn then to the sentence of 3 years on count 5, i.e. the assault occasioning actual bodily harm. It is convenient to address the submissions made on behalf of Lo with those made on behalf of the 1st applicant Wong in respect of the same charge. In sentencing Wong, the judge merely said this:

In regard to both applicants the sentence imposed was the maximum of 3 years. We are unable to find anything in the circumstances of this particular offence or in the evidence to warrant it being regarded as being in the worst category of its type, so as to warrant the maximum penalty. It was nonetheless a very serious offence given the circumstances and the injuries. In the latter regard, we have taken into account Mr Wong's submissions, in particular that the judge was mistaken in thinking that PW1 spent three days in hospital; in fact he merely attended hospital on three occasions on the three days. Plainly the sentence of three years cannot stand. We think a sentence of two years would be appropriate.

20. Turning to consider the sentences in totality, we think that in respect of Lo a total of 4 ½ years would be appropriate. We would achieve that total by making 18 months of the 2-year sentence on count 5 consecutive to the sentences on charges 2 and 3.

21. Accordingly, Lo is refused leave to appeal against conviction. We grant leave to both applicants to appeal against sentence, and treating the applications as the appeals, allow them, and set aside the sentences below to the following extent. The 3-year and 2-year sentences on counts 2 (blackmail) and 3 (theft) are to run concurrently. The sentences of 3 years on count 5 are set aside and sentences of 2 years substituted. In the case of Lo 18 months of the 2-year sentence will run consecutively to the concurrent sentence on counts 2 and 3. In the result, the sentences will be for total periods of 4 ½ years in respect of Lo and 2 years in respect of Wong.