HKSAR v. LAM CHI KIN

CACC100/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 100 OF 1999

(ON APPEAL FROM DCCC 525 OF 1998)

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J U D G M E N T

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

1. On 29th January 1999, the Applicant was convicted of three offences of blackmail and one offence of claiming to be a member of a triad society, following a trial before Judge Davies in the District Court. He now seeks leave to appeal against conviction on these four charges.

2. The prosecution's case was straightforward. A hawker (PW1) arranged with another hawker to buy his stall. This was at some time in May 1997. PW1 was told that if he did this he would need to pay "tor tei" fees to someone known as "Ngau Tau". In due course, PW1 was introduced to Ngau Tau. This person was the Applicant. It was arranged between them that while PW1 sold soup and dumplings from his new stall, he would be required to pay $500 per month to a "minion" known as "Ah Chun" who was introduced to PW1.

3. When PW1 was being introduced to Ngau Tau by the previous stall-holder, he was allegedly told that Ngau Tau was "master of the estate. All the stalls are under his supervision". The Applicant reinforced this by saying that PW1 could sell soup from the stall and that there would be no problem so long as he paid $500 "tor tei" monthly.

4. The first charge of blackmail on which the Applicant was convicted related to these events in May 1997 and to the unwarranted demand of $500 per month with menaces.

5. All went according to plan until December 1997 when PW1 thought that he would be able to earn more by selling hotpot from his stall. The Applicant was told about this new proposal and he agreed to it provided PW1 paid $1,000 monthly. PW1 accepted this, believing that any refusal to pay would result in his being unable to sell hotpot. This was the basis of the second blackmail charge on which the Applicant was convicted.

6. PW1 realised that before he could embark on this new venture, he needed to form a business partnership with others to find sufficient funds to buy the equipment he needed. He persuaded two others to inject $8,000 each, and he also put in money to the same amount. However, the Applicant soon afterwards indicated that he wished to join the partnership. He was told of the arrangement involving the three partners who had already put in $8,000. The Applicant agreed to put in the same amount himself. He also sent a helper for about five days.

7. The hotpot business lasted for about 12 days in all. Throughout that time, the Applicant patronised the stall almost nightly together, it was alleged, with a group of friends and relatives. These people proceeded to consume beer at no cost to themselves and to eat at a discount following an arrangement which had been reluctantly agreed to by PW1.

8. After about 10 days, nearly all the money had run out. PW1 then asked the Applicant to be allowed to revert to selling soup and to paying the lower "tor tei" fee of $500 per month. The Applicant was amenable to this but, as the judge said in his Reasons for Verdict:

"... again made it subject to a condition which, on this occasion, was that he (the defendant) receive a share in the net profits of PW1's sweet soup and dumpling business. Believing that he had little option, PW1 agreed and from that time each night he did business in sweet soup and dumplings, he handed over one-third of the net profit generated to the defendant who had either waited until the closing of the stall to receive it himself or arranged for it to be received by someone called 'Ah Shing'.

This went on well into January 1998 when business became so unproductive that PW1 felt he could not continue and considered giving up. He decided, however, to press on through Chinese New Year and to conclude his business following the third day of Chinese New Year which was at the end of January 1998. Following the third day's business he handed over to the defendant $2,100 being a one-third share of the net profit generated over the three-day period of Chinese New Year. He then ceased business.

However, the defendant, not being content with receiving just one-third of the net profit from PW1's sweet and dumplings business, also demanded the return of the $8,000 which he had invested in the hotpot business that had proved so unsuccessful notwithstanding that PW1 had explained to him that all the capital invested in the partnership had been spent on equipment and produce and that there was nothing left of it. The defendant indicated that once he had been repaid the $8,000, PW1 could carry on or not carry on as he wished. The defendant continued to make demands for the return of the $8,000 into February."

9. These events led up to the third charge of blackmail relating to the unwarranted demand of $8,000 with menaces. It was at this stage that, for the first time, the Applicant went to the police and reported what was happening. An undercover operation was mounted with PW1 being used as a participating informant accompanied by a police officer posing as his helper. Both were 'wired up'. The Applicant reiterated his earlier demand for $8,000 which he insisted should be paid by 15th March 1998. The Applicant also indicated that if PW1 wished to leave his stall in due course, there would be someone who was willing to pay $20,000 to take over the stall.

10. The fourth charge on which the Applicant was convicted related to the alleged claim in November 1997 by the Applicant that he was a member of the Sun Yee On Triad Society. PW1 testified that, at the time of this claim, the Applicant was with a number of his friends when he also said according to the Reasons for Verdict:

"'Nothing wrong has happened (to you) so far, has it, because I am the one who looks after it (the situation).' He went on to say, 'I have followed Sun Yee On since I was 14.'"

11. The defence case amounted to a complete denial of the charges. The Applicant gave evidence that he used the area where a number of hawkers kept their stalls for recreational purposes. He learnt about PW1's partnership proposals and his offer to put in $8,000 was readily accepted by PW1. He helped sometimes to serve customers in the evening and he even paid a helper $100 per night for about nine days. However, after about 12 days, the Applicant was told by PW1 that all the money had been lost. The Applicant said that he wanted to see all the bills and PW1 agreed to this request. Later, PW1 said that he was unable to comply but agreed to return the $8,000 within three or four days. Again, he failed to comply. It was the Applicant's case that when PW1 suggested returning to his former soup business with the Applicant as a partner, he refused the offer and demanded his $8,000 back. He agreed that he had given 15th March 1998 as his eventual deadline for payment. The allegations made by PW1, relating to each of the offences, were specifically denied by the Applicant and he called two witnesses in order to support aspects of his defence.

12. Mr. Grounds has advanced, on the Applicant's behalf, four grounds of appeal. The first of these is that the judge erred in law by effectively misdirecting himself upon the burden of proof by wrongly placing a burden on the Applicant. In advancing this as a ground of appeal, it was accepted by Mr. Grounds that this was obviously a case in which the credibility of PW1 was vital. The testimony given by PW1 was entirely contrary, on vital aspects of his account as to what had happened, to that given by the Applicant and his two witnesses. As the judge recognised in his Reasons for Verdict, the Applicant's story put the whole affair down to a civil dispute over the return of $8,000 which, if true, meant that the prosecution would fail.

13. Against that background, it is submitted that a missing witness statement, made by PW1, shortly after his original report to the police, was of considerable significance. In particular, it is argued that the judge wrongly determined in this context that the defence had the burden upon them of showing that the statement contained a material inconsistency.

14. The judge was very much alive to the concerns expressed by the defence at trial over the missing statement. He was aware also that other co-defendants had previously been tried on matters arising from the events with which we are presently concerned. At page 18K, the judge had this to say on the subject to the missing statement, which he had referred to briefly before:

" With regard to the 'mystery' over a signed witness statement which PW1 has said, in evidence in this trial, he made about a day following his first report to the police, I do not feel that it has been entirely resolved. When the issue emerged at the earlier trial as a result of the police sergeant's witness statement, suggesting that such a statement had been obtained from PW1, a further statement was obtained from this officer in which he attempted to resolve the matter by explaining that there had been a misunderstanding on his part and that in reality no such statement was taken until about two weeks later.

Doubt has been cast upon this explanation by PW1's evidence in this trial that such a statement was made. The police constable instructed to take such a statement has not been called to give direct evidence as to whether or not such a statement was in fact made. Clearly, the situation would suggest that a statement should have been obtained at that time even if, in the event, it was not.

As I have indicated, there is no clear evidence one way or the other. It appears to me, in these circumstances, I should view the situation from the standpoint of there having been such a statement in existence. However, that said, there is nothing to suggest that it was for some sinister reason that it was not revealed to the defence. In my view, defence counsel's suggestion that it was purposely not revealed because it failed to show anything more than a straightforward civil complaint is pure supposition and not supported by what I have heard in this case.

In any event, I do not believe that justice would be served in this case by a decision based solely upon the prosecution's failure to explain the non-production of a witness statement without there being some evidence to show it contained a material inconsistency."

15. The last sentence is emphasised by Mr. Grounds whose complaint is that it shows how the burden was being placed upon the defence at trial to establish that a material inconsistency was contained in the so-called "missing statement".

16. Whilst the judge might have expressed more clearly what he meant by that last sentence in the passage just cited, it is plain enough that the absence of the statement had not caused the judge to doubt the validity of PW1's testimony. He said so in turns. The reason for this appears to be that there was nothing in the evidence which indicated to the judge that the missing statement would have contained any inconsistency having carefully considered the point which had been made by the defence that this was a deliberate act of concealment by the police of that first statement.

17. Mr. Difazio, in the course of argument, points out that there was no actual finding made by the judge that there was a missing statement. That, of course, is true but the indications were that there had been a statement of sorts which had gone missing. But, whatever the situation, in no sense do we agree that the judge was giving any indication of having placed a burden upon the defence of proving either that the absence of the statement was sinister or that the statement contained an inconsistency. He was merely pointing out that the evidence given at trial gave no indication that the missing statement would have contained any material inconsistency. Having heard all of the evidence in the trial, he was entitled to view the issue in that way, serious though the absence of such a statement will always be.

18. It is further submitted in Ground 2 that the failure to provide the defence with a copy of the "missing" statement renders the convictions unsafe and unsatisfactory. We cannot agree. For the reasons already expressed, the judge had carefully considered the points being made about this statement and had rejected them on the valid ground that there was nothing to suggest that the statement contained any material inconsistency with the remainder of the evidence in the trial.

19. Accordingly, Grounds 1 and 2 must fail.

20. In the third ground of appeal, it is submitted that the judge failed to evaluate the evidence in a safe and proper manner. Mr. Grounds advances a number of points in this regard. Firstly, he says that the judge failed to demonstrate or show that he had properly evaluated or taken into account the fact that the Applicant could introduce someone prepared to pay $20,000 for PW1's stall.

21. However, the construction put on this aspect of the evidence is to be found in the Reasons for Verdict at page 18E of the appeal bundle:

"It is clear that the defendant was only really interested in the collection of 'tor tei' fees, whether they were paid by the defendant or by someone who might purchase PW1's stall in the knowledge that he could compensate himself by a deduction of $8,000 from the sale proceeds. In other words, the defendant had manipulated himself into a 'no loss' situation; either PW1 gave him back the $8,000 and was allowed to continue to hawk there by payment of the 'tor tei' fees or PW1's successor would do so. The defendant did not feel the need to recognise his share in the loss of the partnership capital because of the 'hold' he had over PW1."

22. This was, in our view, a perfectly sensible view to have formed assuming, as the judge found, that PW1's evidence could be accepted. As to what might have become of the balance of $12,000, the Reasons for Verdict do not disclose but, in any event, that was an irrelevance if the remainder of the evidence given on this aspect was accepted as true.

23. In the second matter raised under this ground, Mr. Grounds has submitted that the judge's treatment of the inconsistencies in PW1's evidence was inadequate and does not properly inform the parties of the nature, extent or significance of the inconsistencies or enable the Appeal Court to do its duty on Appeal.

24. The judge dealt with the inconsistencies in PW1's evidence by pointing out at page 16Q of the Reasons for Verdict:

"... certain parts of the evidence given in the earlier trial were highlighted in the present trial with a view to showing inconsistencies between that evidence and the evidence given in the present trial ..."

25. He went on to say at page 17E:

"Having viewed his evidence in its totality, I find his account entirely plausible and convincing. I find also that such inconsistencies that exist between his witness statements, his evidence in the earlier trial and his evidence in this trial to have been adequately explained and are not such, in any event, that they undermine my conclusion that PW1 is a witness of substantial truth."

26. Here, the Applicant is on firmer ground. However, whilst we agree that the judge could have been more explicit in setting out the nature of the inconsistencies, it is quite apparent from what the judge was saying that none were of such importance that PW1's credibility was undermined. In this sense, they were not of such significance that they needed to be set out in greater detail. Having said that, the route taken by the judge has given rise to an avenue of appeal that simply ought not to have been open to the Applicant on facts that overwhelmingly established the Applicant's guilt once the defence had been discounted as untrue and concocted, as the judge in due course found.

27. It was the manner in which the defence was covered in the Reasons for Verdict that led to Mr. Grounds' final complaints relating to the judge's evaluation of the evidence. He submitted that the judge's treatment of the Applicant's evidence, together with that of the two witnesses called on his behalf, was inadequate or insufficient. In particular, Mr. Grounds takes issue with the judge's description of the Applicant's evidence as "glib" and not having the "ring of truth". He describes this as a bland statement. Again, we cannot agree. It was the task of the judge to assess the evidence which had been ventilated in front of him and if that was how he found the Applicant's evidence, it provides a highly descriptive account of the manner in which he must have testified.

28. The judge likewise found that he was unable to believe the two defence witnesses. He had the advantage also of seeing them and hearing them give evidence. He found that the first of the witnesses (DW2) to be "plainly giving false evidence". The second of those witnesses in support of the applicant (DW3) was described as giving evidence with all the hallmarks of concoction. In fact, the judge went on to say, at page 20B of the appeal bundle:

"His evidence was introduced to try to give the impression that the defendant had had no previous association with PW1 prior to the hotpot business and thereby to undermine PW1's evidence generally. Frankly, I don't believe it. His evidence as to how he had been approached with regard to giving evidence in this trial was such as to plainly support the view that he had been primed as to what he was expected to say."

29. In the circumstances of this simple case, ample reasons were given by the Judge to reject the evidence given by the Applicant and his two witnesses.

30. In the final ground of appeal, it is submitted that the Judge erred in failing properly to direct himself or to consider sufficiently whether the charge relating to the Applicant's claim to be a member of a triad society was properly made out due to the possibility of the Applicant's inebriation at the time of the alleged claim.

31. At page 13 of the appeal bundle, the judge dealt with this offence in this way:

"In relation to the charge alleging that the defendant claimed to be a member of the Sun Yee On Triad Society, the evidence of PW1 was that on a day in November 1997, when the defendant had patronised his stall with a number of his friends and possibly while under the effects of alcohol, he boasted loudly of his influence over events by saying to PW1, 'Nothing wrong has happened (to you) so far, has it, because I am the one who looks after it (the situation).' He went on to say, 'I have followed Sun Yee On since I was 14.'"

32. His later conclusion, following his assessment of the Applicant's evidence, was that:

"So confident was he of his position and influence that on a night in November 1997 he openly boasted of it and subsequently, equally foolishly, overstretched his demands of PW1 who, being unable to take any more, reported his activities to the police.

Accordingly, I find the defendant guilty of each of these offences ..."

33. A claim made by a person when affected by alcohol is just as much a claim as one made by a sober man in the circumstances prevailing in this case. The issue on this charge was whether such a claim was ever made at all. Although Mr. Grounds suggests that the Judge should have given the charge more thought, having regard to the law relating to the effects of intoxication, this was wholly unnecessary on such a straightforward issue. Mr. Grounds, in fact, went so far as to suggest that the judge ought even to have indulged in a consideration of whether the drink had been voluntarily taken at all such as might be the case where alcohol had been put into the Applicant's drink without his knowledge. Such a consideration as this would have been purely speculative. There had been no evidence of that kind put before the Court and for a judge to delve into speculative considerations of that kind, without the issue being raised, amounts to a suggestion that borders on the absurd.

34. Accordingly, for the reasons we have given, we can find no substance in the grounds advanced and this application must be dismissed.