HKSAR v. AU WING YAT

HCMA 891/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 891 OF 2004

(ON APPEAL FROM KCCC No. 6611/2004)

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REASONS  FOR  JUDGMENT

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Introduction

1.  On 29 December 2004, I dismissed the Appellant’s appeal against conviction and sentence; I now set out my reasons for that decision.

Background

2.  The Appellant, Au Wing Yat, and his co-accused were tried on a single charge of blackmail contrary to sections 23(1) and (3) of the Theft Ordinance, Cap. 210 before Mr S.M. Sham, Permanent Magistrate sitting in Kowloon City Magistracy on 4, 5, 10 & 17 August, 2004.  On 17 August 2004, the Appellant and his co-accused were convicted and sentenced to 2 years’ imprisonment.

Prosecution case

3.  The prosecution case was that on 11 May 2004, PW1 went to Macau to gamble.  He lost all his money.  A man called Patrick lent him $30,000 so that he could continue gambling.  He lost this too.  Patrick told him that he had to go back to Hong Kong with another man and once there he would have to enter into an agreement relating the loan of $30,000.  Another man then escorted him back to Hong Kong.  At the Macau Ferry Terminal he was handed over to the Appellant and his co-accused.  They asked him to sign an IOU for $30,000.  Then they escorted him to his home where he lived with his parents. 

4.  At PW1’s home, the Appellant and his co-accused showed the IOU to PW1’s parents and demanded repayment of the loan.  After discussing the matter with PW1’s mother, his father (PW2) obtained $30,000 from his bank account via an ATM machine and handed it over to the Appellant and his co-accused.  The phone in the flat then rang, the caller, who identified himself as “Mr Ko”, demanded that an additional $45,000 be paid as interest on the loan.  PW1 and PW2 discussed this demand with the Appellant and his co-accused, they said that the sum could be reduced to HK$35,000, but if it was not paid immediately they would stay in the flat until it was paid.  They further said that if $35,000 was not paid they would look for PW1’s elder brother and ‘disturb’ him.  During the negotiations there were further phone calls from “Mr Ko”, who rudely demanded payment of the $35,000.  Throughout the Appellant and his co-accused adopted a threatening manner towards PW1 and his parents.

5.  Eventually PW1 was allowed to leave the flat to see if he could raise the $35,000.  He approached a friend for help, who suggested that he report the matter to the police.  He did so and the police went to his parents’ flat and arrested the Appellant and his co-accused.       

Defence case

6.  The Appellant elected not to give or call evidence, in his defence neither did his co-accused.  Their case appears to have been limited to no more than requiring the prosecution to prove its case.

The course of trial 

7.  The case was originally set down for a one-day hearing at 9:30 a.m. on 4 August 2004 before Mr Bruce McNair, sitting in Court No. 8 of the same Magistracy.  The prosecution was represented by a lay prosecutor.  Mr Martyn Richmond, of counsel, appeared for the Appellant.  Mr Richmond also appeared for the Appellant in this appeal.  Plea having been taken, it became apparent because of the number of cases listed before him that Mr McNair would be unable to hear the Appellant’s case and be obliged to seek the assistance of another magistrate.

8.  At 11:40 a.m. Mr McNair referred the case to Mr Sham in Court No. 1, the plea court, for directions as to disposal.  Mr Sham referred the case to the magistrate sitting in Court No. 2 to be heard at 2:30 pm.

9.  At 2:30 p.m, the Appellant and his co-defendant appeared before Mr C.P. Pang in Court No. 2.  By then a new prosecutor had been assigned to the case.  The prosecutor notified Mr Pang that PW1, who had been waiting since the morning to give evidence, had asked to be allowed to leave Court for work by 3:30 p.m. The prosecutor indicated that if the Court were to accede to this request, it was unlikely he could complete examination-in-chief of the witness within the remaining time.  The prosecutor also explained that given the late start of the trial and the fact that there were a potential four prosecution witnesses, it was almost certain that the case would be part heard.  If that were to be the case the prosecutor had a difficulty as he was involved in another part-heard case before another magistrate the following day, and would be unavailable until the following week, and only then, due to other commitments, on certain days.

10.  Mr Richmond, on behalf of the Appellant, pointed-out that the case had been set down for one day and involved a potential four prosecution witnesses and two defendants and submitted that it was undesirable for the evidence of PW1 to be interrupted because PW2 and he were father and son living under the same roof. Given that there was little of the afternoon remaining and that the matter was certain to be part-heard, Mr Richmond suggested, without demur from the prosecution, that it might perhaps be more appropriate for new hearing dates to be fixed.  Having considered the position, Mr Pang referred the matter back to Court No.1 for new dates to be fixed.  In addition to making a note on the court file recording these matters, Mr Pang asked that both Mr Richmond and the prosecutor explain the reasons for the application to Mr Sham.

11.  The case came before Mr Sham again at 3 p.m.  The reasons why, in Mr Richmond’s view, there should be an adjournment were repeated to him; however, Mr Sham announced that he would start the case immediately.

12.  The trial commenced at 3:17 p.m. and adjourned at 4:36 p.m. with PW1’s evidence-in-chief concluded, but with cross-examination part-heard.  Mr Sham adjourned the case to 10:30 a.m. on 5 August 2004.  Mr Sham warned PW1 not to discuss his evidence or the case with his father when he returned home.

13.  The case resumed at 10:40 a.m. on 5 August 2004.  PW1’s evidence was completed within 45 minutes. Mr Sham then announced that he had to adjourn the matter, part-heard and following consultation with the parties, adjourned it to 10 August 2004 at 9:30 a.m.  He again warned PW1 not to discuss the case at home with his father.

14.  The case resumed at 9:41 a.m on 10 August 2004.  PW2’s evidence was finished by 11:00 a.m.  The case was then adjourned to 3 p.m., but was not reached until 4:03 p.m., when the prosecution called the third and final witness, a police officer involved in arresting the Appellant and his co-accused, and produced a set of admitted facts.  There was no submission of no case to answer.  The Appellant and his co-accused elected not to give evidence, nor to call witnesses on their behalf.  Final submissions were made and the case was then adjourned to 17 August 2004 for verdict.  In total the trial, including the verdict, lasted for a total of four days.

Appeal against conviction

15.  The sole ground of appeal against conviction raised by Mr Richmond on the Appellant’s behalf is that there was a material irregularity at trial, in that the magistrate’s conduct of the case gave rise to the perception that justice was not being seen to be done and that the Appellant was prejudiced in the conduct of his defence.

16.  It is said that despite being advised that PW1 and PW2 were son and father living under the same roof and that it would be undesirable to permit PW1’s evidence to be interrupted, the Magistrate chose to commence the trial at 3:17 p.m. resulting in PW1’s evidence being unnecessarily interrupted during cross-examination.  Mr Richmond argued that that despite the magistrate warning PW1 that he should not discuss his evidence with his father, given that there was a gap of five days between their respective testimonies and that they lived under the same roof, it is unrealistic to assume that PW1 did not discuss the case or the evidence with his father.

17.  Mr Richmond further argued that given that the magistrate was concurrently engaged in the operation of what is arguably the busiest plea court in Hong Kong and that the trial was adjourned on three occasions the Appellant is justified in believing that the magistrate may have been unable to give due attention and consideration to the evidence led at his trial.

18.  Although Mr Richmond accepted that there is a duty on magistrates to conclude cases without undue delay, he argued that the overriding principle must that criminal proceedings are dealt with in accordance with the principles of fairness and impartiality and that where the conduct of the proceedings gives rise to a justifiable perception that a defendant may have suffered prejudice and disability in the conduct of his defence, then his conviction is unsafe.

Discussion

19.  The question in this appeal is: was it a material irregularity for the magistrate to adjourn the case part-heard on two occasions because of the time constraints on the court’s diary despite having been told that PW1 and PW2 were father and son living under the same roof?  I was of the opinion that it was not.  An irregularity in the course of the trial must be material.  In simple terms, that means something went wrong in the course of the trial which clearly prejudiced the possibility of the defendant receiving a fair trial.  The irregularity complained of in this appeal is that the adjournments gave PW1 and PW2 the opportunity to discuss their evidence.  However, the Appellant and his lawyers must have known before the trial started that PW1 and PW2 were father and son living under the same roof and already had ample opportunity to discuss their evidence between themselves before the trial started. 

20.  On each occasion when the trial was adjourned the magistrate warned the witness whose evidence had not been completed, in strong terms, not to discuss his evidence with the other witnesses and there is no evidence that they did.  The fact that they may have done so, either before or during trial, was not raised in their respective cross-examinations, or in counsel’s closing speech. 

21.  Further, when the case was called for hearing before the magistrate at 3.17 p.m. on 4 August 2004, the most that was said on this issue was that it was undesirable for the evidence of PW1 to be interrupted.  Apart from that, there was no strong objection raised when the magistrate chose to start the trial that afternoon.  Were this appeal to have stood any realistic chance of success, I would, at the very least, have expected to see some evidence that a strongly advanced objection to the magistrate’s course of action had been raised at that time. 

22.  The possibility that witnesses have colluded and discussed their evidence, or even concocted their evidence, exists in every trial.  Our system of justice, however, is a robust one.  It cannot permit trials not to take place (or having taken place, appeals against conviction to be allowed) just because there is a possibility that there may have been collusion between witnesses.  It goes without saying that if there is evidence of collusion the position may well be different and, at the very least, require stringent inquiry into what happened and how it affected the integrity of the trial.  That is not the situation in the present case. 

23.  Magistrates in Hong Kong work under a crushing case-load and, of necessity, multiple cases are listed for trial in each court.  Even where a case is listed as a one-day trial, it is often unrealistic in these circumstances for anyone to expect that trial be concluded in a single day.  Absent any evidence of collusion between PW1 and PW2, no valid criticism can be made of the magistrate’s decision to start the trial in the mid-afternoon of 4 August 2004. 

24.  There is no evidence that the pressure of his other judicial commitments caused the magistrate to give anything other than full consideration to the evidence and issues in this case.

Decision

25.  For these reasons, I was satisfied that there was no irregularity at trial and that there was no merit in the Appellant’s appeal against conviction and dismissed it.

Appeal Against Sentence

26.  When sentencing the Appellant the magistrate opined that in view of the limited sentencing powers given to magistrates a case as serious as this should not have been brought in the Magistrates Court.  He accepted that there was no evidence of triad involvement, but went on to say that the offence committed by the Appellant and his co-accused could be compared to one of syndicated blackmail where the victim is a shopkeeper who is threatened with disruption of his business and where sentences of 3 years’ imprisonment are justified.

27.  Before me, Mr Richmond argued, as he did at trial in mitigation on the Appellant’s behalf, that as there was no evidence of triad involvement, or threat of triad involvement, nor any demonstration of “mass support” by the Appellant, or indeed any indication that other persons could be employed to cause disruption to PW1, the magistrate was wrong to categorise the Appellant’s offence as one of the more serious examples of blackmail. 

28.  Mr Richmond pointed out that PW1 was not conducting a legitimate business; rather he was an unsuccessful gambler.  Neither was there any evidence that PW1 had been falsely imprisoned, or had his property appropriated or damaged, or that there had been any violence or the threat of violence directed towards PW1.

29.  Although he conceded that the offence was a serious one calling for a deterrent sentence, Mr Richmond argued that the magistrate failed to take proper account of these matters in fixing the Appellant’s sentence at 2 years’ imprisonment and that in all the circumstances of the case the sentence is manifestly excessive.

Discussion

30.  Again I did not agree.  The factors advanced in support of this appeal against sentence were advanced to the magistrate in mitigation and as the sentence was announced immediately after mitigation the magistrate must have been aware of them.  In truth they were not mitigating factors at all, but merely a recital of the circumstances pertaining to the offence. 

31.  I was of the view that the magistrate was wrong to liken this case to one where a shopkeeper is threatened with disruption to his business if he fails to pay protection money.  The facts of this case were entirely different from that situation.  Here an unlucky gambler was dunned for repayment of capital and usurious interest in respect of a loan extended to him in Macau to fund his gambling habit.  That factual situation, regrettably, is not uncommon in Hong Kong.

32.  I was satisfied that the magistrate was correct in taking the view that there must have been a loan sharking syndicate involved.  The evidence was that PW1, after incurring the debt in Macau, was accompanied back to Hong Kong by a third man and handed over to the Appellant and his co-accused who were already waiting for him at the Macau ferry terminal.  That clearly indicates that an organised group were involved in dealing with him.

33.  However it is committed, blackmail is a serious offence.  The circumstances of it commission, however, can vary widely and the sentence to be imposed upon the offender depends very much on the particular facts of the case.  The Court of Appeal in R v. Lau See Kau CA 573 of 1995 (unreported), where the applicant had received a 2½ years sentence for blackmail, rejected the idea that there is a normal range of sentences of between 18 months to 3 years’ imprisonment for this offence; saying, at page 2:

“The circumstances of blackmail offences vary so much that sentences of very much longer than three years are often clearly appropriate.”

34.  R v. Chiang Hung Choi & Anor CA 729 of 1993 (unreported) (in which the Court of Appeal upheld a sentence of 12 months’ imprisonment and a consecutive term of 2 years’ imprisonment passed by District Court Judge for two charges of blackmail) was, like this case, one where an unlucky gambler in Macau had been blackmailed in respect of the repayment of a loan extended to him to clear his debts.  After referring to a passage in the judgment in R v. Lui Sau Cheong CA 95 of 1993 (unreported), the Court of Appeal said this, at page 5 (O-S):

“One of those evils and ills, which did not manifest itself in that case, but which manifests itself on the present case, is the ripple effect of loan-sharking which reaches the family of the debtor.  When imposing sentence, the court must deal firmly with loan sharks and their associates who threaten the families and friends of their debtors in order to obtain payment from them.” 

35.  HKSAR v. Lim Hay Bun Benny [2000] 1 HKC 612, was also a similar Macau gambling loan blackmail case.  There the Court of Appeal upheld concurrent sentences of 3½ years’ imprisonment in respect of one charge of false imprisonment and one charge of blackmail.

Decision

36.  Having regard to those previous decision, which are not authorities, but rather examples of how offenders for similar offences have been sentenced, I was satisfied that the sentence of 2 years’ imprisonment passed on the Appellant was neither manifestly excessive nor wrong in principle and dismissed the Appellant’s appeal against sentence.