HKSAR v. NG CHING LING AND ANOTHER

CACC253/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.253 OF 2005

(ON APPEAL FROM DCCC 203 OF 2005)

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REASONS  FOR  JUDGMENT

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Burrell J (giving the reasons for the judgment of the Court) :

1. At the conclusion of the hearing we granted the application for leave to appeal, treated the hearing as the appeal, quashed the convictions of both applicants and ordered a retrial with written reasons to follow.  These are the reasons.

2. On 25 May 2005, both applicants (I shall refer to the 1^st applicant Ng Ching Ling as “D2” and the 2^nd applicant Choi Chi Chung as “D3” as they were at trial) were convicted after trial before H.H. Judge Toh of a single offence of blackmail, contrary to section 23 of the Theft Ordinance, Cap. 210.  The particulars were that they, (together with D1 who was also convicted but has abandoned his appeal) made an unwarranted demand for protection money from a restaurateur, Mr Hui Yin Moon at the Four Seasons Hot Pot Restaurant between May and 29 November 2004, with menaces.  They were sentenced to 2½ years’ imprisonment.  The sentence is not appealed, only the conviction.

Outline facts

3. In outline only, the material facts upon which the judge based her decision were as follows.  There were three relevant events.  In May 2004, D1, D2 and D3 went to the restaurant as a group.  They arrived at about midnight and asked to see the boss.  D1 then asked Mr Hui if anyone was “watching the place” as they had “watched it” earlier in time when the restaurant was in different hands.  D1 also referred to the “Fujian Sam Ching gang”.  Mr Hui’s evidence was that he understood that the three men speaking to him were gang members and also that a request for protection money was being made.  At the conclusion of the conversation, the telephone numbers of D1 and D3, together with their names, were written down and left with Mr Hui.  In the course of the conversation, D3 said “We had come here to support you, to eat here.  Don’t talk about other things.”

4. The second event was in September 2004 when D2 went to the restaurant alone and asked if Mr Hui had spoken to his boss and what was the result.  On this occasion, D2’s phone number was written down and was left with Mr Hui.

5. The third event was in the early hours of 29 November 2004 when D1 and some other males created a scene at the restaurant and inflicted criminal damage on restaurant property.  In her reasons for verdict, the judge said that D2 had admitted during a police interview being at the restaurant on this night but had left before the violence.  This was an error by the judge.  There was no such admission.  D3 had made such an admission in his recorded interviews but that was not referred to by the judge.  In short, it seems the judge had confused D2 and D3 on this point.

6. When convicting D2 and D3 the judge referred to their participation in the meeting in May.  She concluded that all three were acting in concert and that the words used conveyed no meaning other than a demand for protection money with menaces was being made and that phone numbers and names were left with Mr Hui so that he could contact them when he had his boss’s answer to the demand.

7. There was no other evidence relied on in respect of D3 but she relied on two other events against D2 namely his visit in September when he left his phone number and the mistaken fact that he had admitted being present at the restaurant on 29 November albeit before the violence occurred.

The appeal

8. Mr Oliver Davies who appeared for D2 and D3 on appeal but not at the trial relies on three grounds of appeal.

9. The 1^st ground suggests that the circumstances and words used by D1 during the May incident are insufficient for the judge to infer that all three defendants were participating in an offence of blackmail.

10. The 2^nd ground is that the judge’s error in attributing a partial admission to D2 and relying on it, when the admission had in fact been made by D3 is a material irregularity which renders the conviction unsafe.

11. The 3^rd ground is that the words used by D3 during the May incident suggested that he was disassociating himself from any involvement in blackmail and in the absence of any other evidence against him (as stated by the judge) there should have been an acquittal.

12. We will deal with the 2^nd ground first because it is on this ground alone that we decided to grant the application and allow the appeal and order a retrial.

13. In so far as it relates to D2, we have no difficulty in agreeing with Mr Davies that the unfortunate error of relying on a partial admission made, in fact, by a different defendant amounts, in this case, to a material irregularity.  With respect to Mr Vincent Wong, who appears for the respondent, it is more than a “mere slip of the tongue.”

14. In her reasons for verdict, the judge made the following remarks :

“Now, on 29 November, I again accept that on that night the 1^st defendant did go up with other persons and that the 2^nd defendant did also go up with them. …”

“… 1^st defendant appeared to be the most active person of the three, and he was the one who made good the menace by in fact overturning part of the four tables on 29 November 2004.  I have no doubt that the 2^nd defendant was also involved. …”

“As far as the 2^nd defendant is concerned, he did admit in his cautioned statement that he was there with the group but left earlier.”

and

“There is no evidence, however, that the 2^nd defendant was present at the time when the tables were turned.  But the 2^nd defendant in his admission in the cautioned statement did agree that he did go up on that night and this corroborates the evidence of PW3 that the 1^st and 2^nd defendants were in fact there on 29 November.”

15. It is thus plain that when convicting D2 the judge placed reliance on evidence which did not exist.  She relied on it both to find that D2 was, on his own admission, present on the night of the 28/29 November incident and also as evidence corroborating the credibility of an identifying witness.  For this reason we conclude that it is unsafe to allow the conviction to stand and accordingly direct a retrial.

16. More difficult is the consideration of the effect of the error on D3’s conviction.  In a sense, D3 benefited from the error because the evidence of his admission was overlooked.  He was nonetheless convicted.  In the course of the hearing, we allowed Mr Davies to extend his 2^nd ground of appeal so as to include D3.  Whilst it is true, as observed by Mr Wong on the respondent’s behalf, that the conviction of D3 was based solely on his participation in the May incident we, after some reflection, conclude that the only safe and proper course is to direct that both D2 and D3 are retried.  The defendants were convicted on the basis that they were acting together to blackmail the restaurant owner.  The reliability and credibility of prosecution witnesses were in issue.  The evidence of one of the witnesses, PW3, whose testimony contributed to the overall picture of a joint enterprize was, in the judge’s reasons, corroborated by the “mistaken” evidence which had erroneously been attributed to D2.

17. In view of the fact that we accepted Mr Davies’ submissions with regard to the 2^nd ground of appeal he, sensibly and correctly, did not pursue grounds 1 and 3.

18. In short, there was no merit in ground one.  There was ample evidence concerning the May incident enabling the judge to infer that a demand for protection money with menaces was being made.  No other reasonable inference could have been drawn.  Having found that to be the case it is not surprising that the judge attached no weight to the remark relied on in ground 3.