R. v. CHAN Yeung kei and Another

IN THE COURT OF APPEAL

1995, No.407

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The 1st applicant in this matter CHAN Yeung-kei, who was the 1st defendant at trial, was after trial before Deputy Judge Lung convicted of one count of blackmail and one count of criminal damage. He was sentenced to 18 months on the first count and to 12 months on the 2nd count and the sentences were ordered to be concurrent. Concurrent also was a sentence imposed on an offence of being a member of the triad society against which conviction there is no appeal. He was charged with three others who faced nine charges in all. He was involved in the three charges on which he was found guilty.

2. It was the Crown case that the 4th defendant demanded money from a Mr. Law, a proprietor of a tea stall accompanying the demand with standard triad threats. This occurred more than once between May and June 1994 and on 16th September D4 accompanied by others returned to the stall. On that occasion at about 9:50 p.m. he talked to Law again making threats and demanding $400 per week as a "tor tei" fee and telling the proprietor that he had to be careful if he failed to pay.

3. The two who were later identified as participating in that visit were the 4th defendant and the 2nd defendant, however there was another person present.

4. On 22nd September a group returned. This included the 2nd defendant, the 3rd defendant and other persons. Demands were made on that day to the wife, the proprietor being absent. She gave evidence that she telephoned her husband but as no payment was immediately forthcoming the group kicked and overturned tables and stools doing minor damages to the extent of only $200 but causing boiling water to be tipped onto a 9-year-old child. None of the culprits were arrested on that evening but during the following weeks they were all arrested by police.

5. The 1st applicant was convicted solely upon the basis of his cautioned statements. In the first of these, having been told that the police had reason to believe that he, with a Chinese male NG Chi-keung alias Ah Moon and another alias Ah Dee had on 16th September at the Chuk Yuen North Estate Shopping Arcade blackmailed a Mr. Law, he replied, "Ah Sir I understand. Ah Moon told me to go downstairs to render assistance." In his second statement he was asked what he meant by that and he said: "When Ah Moon and I came to a coffee stall Ah Moon talked to the boss and I just stood there." When asked about the second incident on the 22nd, he had said, "It's Ah Moon and Ah Dee who did it.". When asked what he meant by that he said:

"At the time I was present at the scene but I was only standing there, and it was Ah Moon and Ah Dee who approached and talked to the proprietress. Then I heard Ah Dee saying, 'What's the meaning of this?' Then Ah Dee pushed a table. I do not know who injured the little girl by scalding her with water."

He was then asked:

"Do you know what Ah Moon and Ah Dee Talked about to the proprietress?"

and he said:

"I do not remember clearly."

He when asked the names of the other four persons he said, and this may well be considered significant:

"I do not know their names. I only know that we are 'brothers'.

He was asked:

"What 'brother' is it?"

and he said:

"We are all the No.14 Triad Society, but we are of different 'character'."

6. He called an alibi witness at trial as to the incident of 16th September but the trial judge rejected the evidence of that witness. He did not give evidence himself on the general issue.

7. The trial judge said when dealing with the third charge:

"I have noted that Mr. Yip for D1 has submitted that D1 was only present there. In P.10, D1 said he was told by Ah Mun to go downstairs to render assistance. In P.12, he said that he was present at these stall and saw Ah Moon Ah Dee approach Madam Tsoi. Then he heard Ah Dee saying 'what's the meaning of this?' Then Ah Dee pushed the table.

In P.14, D1 in reply to DPC 5408's question where he had gone after sweeping of the stall at 2:30 a.m. on 22.9.94, he said that he, Ah Moon (D4) and Ah Dee (D2) had gone to a bar in Prat Avenue in Tsim Sha Tsui to have a drink.

I reject the submission that D1 was merely present there after I have considered the evidence. Firstly, I do not believe that on the morning of 22.9.94, D1 was merely standing there doing nothing. Even if he was standing there doing nothing, the fact that he was there, voluntarily and deliberately, watching the commission of the offence and doing nothing to prevent it or to leave the place, even though he could have done so, coupled with the fact that he went with D4 and D2 to a bar for a drink are strong evidence upon which I draw the only reasonable inference and conclude that he intended to and did encourage D2 and D4 in the commission of the offence."

When dealing with the fifth charge he said:

"For the reasons I have given in respect of the 3rd charge and on the evidence of P.12, I find it proved beyond reasonable doubt that D1 did take part together with the other people in the joint enterprise and without lawful excuse had damaged the property at the stall..."

8. The applicant's only real complaint is that the trial judge wrongly took into account evidence which related to the 5th charge when he was considering the 3rd charge. It is certainly true that he referred to the evidence in the way set out above. However the cogent evidence involving him in the 3rd charge and, indeed, in the 5th charge was the evidence that came from his admission that he had been summoned by Ah Moon to "render assistance" and that he did so by just standing there. Having accepted that that admission was made, and that this transaction was a continuing one, first of demands and then of an enforcing action when the demands were not met, the trial judge was entitled to look at the evidence in the round. He was entitled to infer that he was there on both occasions to give assistance by his presence. Nothing has been suggested which indicates to us that the convictions were either unsafe or unsatisfactory and the application for leave to appeal against the convictions is therefore refused.