R. v. CHAN YUNG FUK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 599 OF 1995

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J U D G M E N T

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Hon Yang, CJ:

1. The appellant was the first accused at trial (hereinafter referred to as D1). The second accused was Ng Kam Wah (hereinafter referred to as D2). They were both found guilty after trial of (A) Criminal Intimidation and (B) Blackmail. D1 seeks leave to appeal against conviction on both charges.

2. Briefly, the Crown case was that on 13 November 1994 Mr Siu Man Fat (Siu), a construction sub-contractor on the site of Sun Hung Kai Co Ltd at Ha Yau Tin Village, was approached by D1. D1 asked him to stop work on the site and turn off all the machines. Siu said he did as he was told because D1 was "talking to me in an exasperated manner". D1 then told Siu to ask the person in charge to come and talk with him, and he would return to the construction site later for that purpose.

3. Siu admitted under cross-examination that D1 had spoken of the village nearby being disturbed by the work on the site and also spoke of "law and order".

4. Siu then informed his work co-ordinator who contacted the police. At about 2:00 pm on the 14th two police officers arrived at the site posing as site employees. Five men (one of whom being D2) came to the site. Both D1 and D2 spoke to the two undercover police officers. One of the undercover officers was DPC 2042. D1 said to him, "I am the Tor Tei of Tai Ki Ling, are you in charge?" DPC 2042 said he was, whereupon D1 said he had something to say to him, and he took DPC 2042 some 10 metres away.

5. D1 said, "We are the Tor Tei of this place. If you want the construction site to operate smoothly and peacefully you will have to pay $3,000 as Tor Tei fees."

6. DPC 2042 said he needed to consult his company, to which D1 said, "Well, in this case you consult your company first but you should reply as soon as possible; in case the hoardings of your site should collapse it is none of my business."

7. When they walked back to the original group, D1 told DPC 2042 to order the workers to stop work, saying that they were not allowed to recommence work without a reply first being made to D1's demand, otherwise DPC 2042 and his company would be responsible for any outcome." DPC 2042 agreed and promised to inform D1 as soon as possible. D1 then said they would return the next day and, "We'll be back again tomorrow, you had better give me a reply or else I won't act lightly."

8. At this point, D1 and his group were arrested by the police.

9. D1 gave evidence. The gist of his evidence was that his visits to the site had nothing to do with D2's visits. He said he visited the site for legitimate reasons quite independent of D2's visits.

10. In his assessment of D1's evidence, the learned trial magistrate said:

"I did not believe the evidence of the appellant. I thought he was rehearsed in his presentation despite which he seemed uncertain and hesitant under cross examination. I made allowance for his unfamiliarity with Court proceedings but I had no doubt he lied to the Court in an endeavour to extricate himself from the circumstances he found himself in."

And -

"Having disbelieved the appellant I was aware his guilt of the two charges did not automatically follow."

11. The magistrate accepted the evidence of the undercover police officers.

12. Mr Grounds, counsel for D1 in this appeal, argues that the magistrate failed to direct himself properly on the issue of D1's lies. There was, he submits, a real danger that he had used D1's lies as direct evidence of guilt, and that he had failed to consider whether D1 had lied for an innocent purpose. In the absence of a "Lucas direction", the whole issue of lies was left in a confused state.

13. In my judgment the magistrate quite clearly understood the proper way in which lies by an accused should be dealt with. He was not obliged to warn himself. There is nothing in this first ground of appeal.

14. Mr Grounds then argues that the magistrate failed to evaluate, resolve or deal with in a proper manner a number of significant discrepancies in the evidence of the prosecution witnesses. The discrepancies are enumerated in the Grounds of Appeal. It will not be necessary to examine them in detail, save to say that they are all on factual details of little significance. There are no inconsistencies in the evidence on the major features of the case. The second ground also fails.

15. The third complaint is that the learned magistrate failed to consider Siu's evidence which supported D1's case, and the evidence of D1's witness which support D1's evidence (which was in turn supported by Siu's evidence). It also argues that the magistrate wrongly concluded that the evidence of D1's witness was of little assistance.

16. In my judgment the magistrate dealt with the prosecution evidence correctly. Though he thought the evidence of DW2 was credible, he was nevertheless "aware he spoke of matters pre-dating 13/14 November and, as he acknowledged, he had no way of knowing if any instructions given the appellant had been followed or rejected or exceeded. In the result I found his evidence of little assistance."

17. There is no substance in this ground of appeal.

18. Fourthly, the analysis of the evidence in the Statement of Findings was criticised as being "so short and of such a nature as not to permit or indicate to the parties in a proper manner as to how the evidence had been evaluated, etc." In my judgment, the Statement of Findings contained all that was needed to be said by the magistrate.

19. The fifth ground reads:

"Charge A is bad in law and the Learned Magistrate erred in law and wrongly convicted the Appellant in respect thereof. Section 24(b)(iii) of the Crimes Ordinance Cap.200 makes it an offence where the intent of the wrongdoer is to prevent (in the circumstances of this case) Sun Hung Kai or their employees or sub-contractors from doing that which they were legally entitled to do. The amended Charge A never properly specified these matters."

20. Amended Charge A is in the following terms:

"(A) CRIMINAL INTIMIDATION (Jointly charged)

Contrary to Section 24(b)(iii) of the Crimes Ordinance, Cap.200, Laws of Hong Kong.

CHAN Yung-fuk, NG Kam-wah, you are charged that on the 14th day of November, 1994, at Sun Hung Kai Construction Site, Ha Yau Tin Village, Yuen Long, New Territories, in Hong Kong, you, together with other persons not in custody, did threaten TSUI Hing-chung, with 'injury to the property of another person namely the hoardings of the said construction site', with intent to cause the said TSUI Hing-chung to omit to do an act which he was legally entitled to do, namely to continue the construction work at the said Sun Hung Kai Construction Site."

21. It is true that Mr Tsui Hing Chung was an undercover police officer and the particulars could have been better drafted, but it has never been suggested that the charge had misled or prejudiced to anyone. Everyone was fully aware who the true victim of the intimidation was intended to be.

22. The last two grounds are on lurking doubt and on the unsafe and unsatisfactory nature of the convictions. I do not think there is anything in either of the two grounds.

23. Having considered counsel's submissions and for the reasons stated above, I dismiss the appeal against convictions.