HKSAR v. YUEN SIU KAN

DCCC 868/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 868 OF 2014

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to 10 charges.

2.  Charges 1, 3 and 4 are blackmail offences, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210.

3.  Charges 2, 5, 6, 7 and 8 are offences of claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151.

4.  Charges 9 and 10 are a driving-whilst-disqualified offence, contrary to the Road Traffic Ordinance, Cap 374, and using a motor vehicle without third party insurance, contrary to the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 respectively.  

Background and Issue

5.  The police conducted an anti-triad undercover operation.  Police officers posed as civilians; specifically PW1 who posed as a woman who wanted to sell lunch-boxes to construction site workers at construction sites.  PW2, a police officer, posed as her cousin who went to work for the defendant and was supposed to help PW1 to set up her business.  PW1 was introduced to the defendant as a person who could arrange for her to set up business at particular sites.  He could do this only if PW1 paid him a protection fee or tor dei.  PW1 paid the defendant $10,000 cash as tor dei with PW2 as a witness to this.  On numerous separate occasions, the defendant claimed to be a member of the Sun Yee On Triad Society.

6.  Not long later, the defendant told PW2 that his cousin, PW1, had not paid him enough protection fee and asked PW2 to pay him another $10,000 on her behalf.  PW2 did pay him $5,000 cash.

7.  PW2 worked for the defendant at his food preparation stall in Tsuen Wan.  He would drive the defendant around on occasions.  He made a note of an occasion when he once saw the defendant drive a vehicle.  The defendant at that time was disqualified from driving and uninsured when behind the wheel.

8.  The only issue in this case is the credibility of the witnesses.  The defence case is that PW1 and the defendant were partners in a venture and the request for tor dei was not from the defendant but demands made by others. 

9.  The defence case is also a denial the defendant drove whilst disqualified.  It is a denial the defendant claimed on the material days to be a member of any triad society.  Lastly, it is a denial he made unwarranted demands for money from the prosecution witnesses with menaces. It was submitted the prosecution witnesses, PW1 and PW2, were not credible or reliable.

Prosecution Case

10.  PW1, WDPC56277, worked undercover from July 2013 to May 2014.  Her assigned “husband” was another undercover police officer. They pretended to be hawkers of cooked food, lunch box meals supplied to construction site workers at sites.  Their task was to gather information related to any criminal activity.

11.  She first met the defendant on 4 October 2013. She was given his contact number because he supplied lunch boxes.  He had a cooked food stall in Tsuen Wan and prepared lunch boxes there for sale and for delivery to sites.  He sold them himself as well as to other hawkers.  PW1, called Ah Mui, wanted to buy from him.

12.  Prior to calling the defendant, she had tried to sell lunch boxes at two sites in Tseung Kwan O but was moved on.  She was told she could not sell at these sites as there were already other hawkers who had paid tor dei and given the right to sell at those particular sites.  She was told she could have a site if she paid tor dei by a Wah Gor.

13.  She did pay Wah Gor a total of $10,000 tor dei fees in order to be able to sell meal boxes at a site in Kowloon Bay.  She was promised the whole site and advised to buy her meal boxes from the defendant.  She knew Wah Gor was a member of the Sun Yee On Triad Society.

14.  It was after she had secured the Kowloon Bay site by paying $10,000 tor dei that she called the defendant.

15.  Wah Gor was with her at that time and spoke to the defendant over the phone.  He told the defendant that he was Wah Tsai and was Siu Kwan’s “leng”.  He said Siu Kwan of “Tseung Kwan O Lo Sun”.  Wah Gor told the defendant that PW1 had paid the money and they had reached an agreement.  He told the defendant to supply her meal boxes.

16.  The defendant then spoke to PW1 and said to her, “You are Siu Kwan’s people.  We are the same family.  There is no need to say anything.”  PW1 then discussed an order and cost with the defendant, placing the first order to be collected on 7 October.

17.  PW1 first met the defendant on 15 October to pay for the order of 7 October which she failed to collect.  She told the defendant that her son was very ill and her husband had left her for another woman.  He took all their money with him.  She said she had to start the business later on, perhaps after the Christmas holidays.  She said the defendant told her he would give her a site when she was ready to start work.

18.  On 16 December 2013, the defendant called PW1 and told her he had a vacancy at the Anderson Road construction site but she needed to pay $10,000 tor dei fee that very same day.  If she did not pay, he would give the site to somebody else.  He told her it was a great site and would be profitable.  He suggested she try and borrow the money to pay him.  He then called her several times to see if she had raised the money.  PW1 told him her aunt would lend her the money, and they arranged to meet that same evening.  The defendant drove a vehicle to meet her.  PW1 introduced the defendant to her cousin, another undercover police officer, DPC4081, as Ah Mo. She said they would work together later.

19.  PW1 opened the passenger door and paid the defendant $10,000 cash.  Defendant said to her that as he had taken $10,000 from her as tor dei, she could now sell lunch boxes at the Anderson Road site.  This is the evidence of Charge 1.

20.  The defendant also said that if Ah Mo, her cousin, had no work, he could come to work at his cooked food stall anytime.

21.  PW1 did not actually go to that Anderson Road site or buy any meals from the defendant.  Her evidence is she understood the money was paid to him to ensure she could sell there and not be harassed or chased away.  In other words, if she did not pay, she could not sell meals at that site.

22.  PW2, DPC4081, went undercover at the material time to gather intelligence on triads and triad activity in Kowloon and in the New Territories.  He pretended to be PW1’s cousin and first met the defendant briefly on 16 December when PW1 gave the defendant $10,000 cash.  He had been briefed and knew the cash was for the defendant as tor dei.

23.  He went to work at the defendant’s stall on 23 December and worked there until the defendant was arrested in May 2014.  He recounts several occasions when the defendant admitted and claimed to be a member of the Sun Yee On Triad Society.  He recounts two occasions when the defendant blackmailed him.  He also pinpoints a day he saw the defendant drive a vehicle.  He helped at the stall, preparing food but would often drive the defendant around as well.

24.  Specifically, on 24 December, the defendant asked PW2 to drive him to several sites to collect mealbox money.  He told PW2 about some sites being snatched away from him but that he still had several left.  He pointed out a painted block or stone outside one site with the words “Kan Kee” that meant him.  It was a way to show that the site was his and that he said he had to sound his Sun Yee On affiliation.  He told PW2 that his brothers sold meals at sites in Kowloon.  He said they are also grandsons in the Kowloon Lo Sun.  They introduced PW1, his cousin, to the defendant. That is why he let her, PW1, follow him to sell meals.  This conversation is the basis of Charge 2 where he claims to be a member of Lo Sun, a nickname for the Sun Yee On Triad Society.

25.  PW2 gave evidence that on 30 December, the defendant arranged to meet PW2 for lunch.  At lunch, the defendant demanded $10,000 from PW1.  He told PW2 that PW1 followed him to sell meals and needed to pay $20,000 tor dei but she had only paid 10,000.  She also had to pay a $3,000 subscription fee to the local tor dei of the site but that he would cover 50 per cent of that.  This was a monthly fee on top of the tor dei fee.

26.  Later that day, the defendant told PW2 to pay the $10,000 debt PW1 owed him on her behalf and settle up with her later.  He said PW2 was to quickly raise the money and deposit it into his bank account at the Hang Seng Bank.  PW2 later deposited $5,000 cash into this account. Exhibit P11 is the receipt.  There is no dispute the defendant’s account received this $5,000.  PW2 was of the view that if he did not pay the defendant some money that he demanded, PW1 would be unable to sell meal boxes at the site.  This is the particulars of Charge 3.  PW2 said the defendant knew PW2 intended to work with PW1 to sell meal boxes together.

27.  On 2 January 2014, the defendant asked PW2 to drive him to the Anderson Road site.  When they arrived, the defendant told PW2 that he could later sell boxes here at this location.  He could sell a lunch box for $32 per person.  The defendant would charge him $16 per lunch box and an extra $2 per box as tor dei fai payable to the defendant.  The defendant said PW2 could sell there without worrying as the defendant had control of the whole site.  If the police or tor dei bothered PW2, he only had to say he was allowed to sell there by Fei Chai Kan.  If he said this, no one would give him any further trouble.  The defendant was Fei Chai Kan. This is the claim of being a triad member of Charge 4.  

28.  On 8 January 2014, the defendant again told PW2 that when he sold lunch boxes at the Anderson Road site later, he only had to say this site was Sun Yee On Fei Kan’s site if anybody asked.  He again reiterated no one would bother him and that the Sun Yee On looked after all the lunchbox-selling business in Hong Kong.  He used the words “looked after by us Sun Yee On, only us, no one else”.  This is the claim of being a triad member of Charge 5. 

29.  On 16 January, the defendant told PW2 of an issue that had arisen between his Lo Sun brother, Kum Heen, and another over buying the rights to sell meals at Anderson Road.  The defendant raised money for this Lo Sun brother, Kum Heen, to solve his problem.  PW2 asked the defendant who was Kum Heen and he was told he was a Lo Sun brother.  This is the claim of being a triad member of Charge 6.

30.  On 26 December, the defendant introduced an Indian or Pakistani male to PW2 as his Lo Sun brother called Ah Sam.  This is the claim of being a triad member of Charge 7.

31.  On 14 March, the defendant told him about another issue that had arisen relating to the rights to sell boxes at the Anderson Road site.  He referred to a “Tai Chu”.  He told PW2 Tai Chu was the head of Tseung Kwan O’s Sun Yee On and was his Sun Yee On brother.  This is the claim of being a triad member of Charge 8.

32.  On 8 May, whilst PW2 was working at the defendant’s stall, he watched the defendant drive an LGV SJ 4634 away from the stall to deliver meals to a site in Shatin.  He had just helped load the LGV with lunch boxes before the defendant drove it away.  This evidence relates to Charges 9 and 10, the driving offences.

33.  PW3, DPC5015, arrested the defendant when the operation turned overt.  Under caution, the defendant said, “I understand, Ah Sir.  I was just earning a living.  I ran the mealbox business in Tseung Kwan O with Sam Che and Fei Choi.  However, Ah Tseung Kwan Chu was the banker.”  This was not challenged.  

34.  A post-record was made of this statement in Exhibit P13 and 13A.  Later on, PW3 interviewed the defendant and there were four subsequent video-recorded interviews.  They were not challenged either.  They are P14, P18, P20 and P22.

35.  PW4, Sergeant 49287, was the triad expert whose expertise was not challenged.  He confirmed that Sun Yee On was an active triad society in Hong Kong and was also referred to as Lo Sun or Sun Kee.  He explained how Sun Yee On did control construction sites by arranging for their own members to set up lunchbox businesses and ensure no one else did.  If anyone else tried, they would be told that they had to pay tor dei.

36.  He said the fee would depend on the size of the site and number of construction workers that needed feeding daily.  He said between December 2013 and May 2014, tor dei between $30,000 and $100,000 had been paid.  For your fee, you could sell meals exclusively at a site.  A monthly fee was also further charged by tor dei.

37.  PW4 confirmed PW2’s evidence of the defendant’s conversations with him amounted to blackmail and claiming to be a member of a triad society.

38.  He also explained the defendant may have paid his more senior brethren of the Sun Yee On to operate at sites but that did not amount to blackmail.  It was how the triad societies operated amongst themselves.

39.  He did not agree to the suggestion that any money paid by PW1 would have been paid to tor dei and not kept by the defendant.  He could not say what the defendant did with the money he took from PW1.

40.  Many facts were agreed by the parties and admitted facts exhibited as Exhibit P1.  There is also an album of photographs, P24 (A to K) depicting the exterior and interior of the defendant’s cooked food stall in Tsuen Wan. 

41.  In a video-recorded interview P14, the defendant explains he sold lunch boxes with his fellow Sun Yee On members or brothers to make a living.  He explained where and when they started this operation.  He explained how protection fee was charged.  He explained he paid it without a request for it.  He paid it on his own initiative to ensure his business ran smoothly (counter 227 to 232).  He explained what sites he was connected to and how.

42.  In the second video-recorded interview, P18, he had nothing to say about the allegation that he blackmailed PW1, the undercover female hawker.  He also had nothing to say about the allegation of driving whilst disqualified and driving without any third party insurance.  He then later denied he did drive whilst disqualified.

43.  He also denied he claimed to be a member of the Sun Yee On to PW2 on 24 December 2013, on 2 January 2014, on 8 January 2014, 16 January 2014 and 22 January 2014.

44.  When questioned about the $5,000 PW2 deposited in his personal bank account, defendant said it was a loan from PW2 as he had cash flow issues.  He explained this in Exhibit P22 and denied it was a sum demanded by him as tor dei fee.

Defence Case

45.  The defence put to PW1 that the defendant suggested that at the Anderson Road site, of the four blocks, PW1 sold at two blocks and the defendant would sell at the other two.  PW1 denied this arrangement or partnership. 

46.  It was also put to her that although he said tor dei had to be paid to sell meals at the site, it was not payable to him.  PW1 denied this.

47.  It was put to PW2 that the defendant never referred to anyone as his followers in the Sun Yee On.  PW2 said the defendant did and even referred to grandsons, meaning he had subordinates in the Society.  It was put he never claimed he was a member of the Sun Yee On.

48.  It was put to PW2 that there was no threat on 30 December when he asked for $10,000 from PW2.  PW2 explained the defendant asked for payment to be made quickly, and PW2 felt that if he did not pay, he would not be able to sell meals at the site.  He said although the defendant did say it was PW1 who owed the extra $10,000, the defendant knew PW2 intended to work with PW1 later.  PW1 has said that is what she told the defendant.

49.  It was put to PW2 that he knew at the Anderson Road site the defendant intended to do business at two blocks and PW1 would work the other two blocks.  PW2 said he did know that.  He also knew the defendant would charge PW1 $16 per lunch box.

50.  When it was put to PW2 that the defendant had to pay tor dei as well, PW2 said he had never heard the defendant say this. He was of the view that the defendant was the tor dei of the whole of the Anderson Road site because the defendant told PW2 that he looked after the whole site alone.  In addition, he paid the defendant the money he asked for so he and PW1 could set up their business there trouble-free.

51.  It was put to PW2 that the defendant would hand over any money he received to others, and every $2 per box for tor dei was not for the defendant’s benefit but handed over to others as well.  He was in no different a position than PW1 or PW2.

52.  Lastly, it was the defence case the defendant did not drive whilst disqualified and that PW2 had made this up.

53.  The defence also rely on the denials made by the defendant and the explanations, if any, in the four video-recorded interviews submitted and not challenged.

The Law

54.  The prosecution has the duty to prove the elements of each charge beyond reasonable doubt.  The defendant has nothing to prove.  The defendant elected not to give evidence as is his right.  The failure to give evidence is not evidence of his guilt.  It proves nothing one way or the other.  The consequence of doing so is to leave the prosecution case enjoying the advantage of not being undermined, contradicted or explained by any evidence from the defendant.

55.  To prove an accused claimed to be a member of a triad society will require a credible witness hearing the defendant himself utter words that mean he is a member of a triad society.  PW1 and PW2 gave evidence to that effect.  There is no issue of law here.

56.  To prove an accused drove whilst disqualified again is down to whether or not I believe PW2 saw the defendant get behind the wheel of a vehicle and actually drive it on 8 May 2014.  There is no dispute he was disqualified from driving all classes of vehicle between 31 August 2011 and 30 August 2014.  He would also not be insured.  There is no issue of law here.

57.  For the prosecution to prove all the elements of a blackmail offence, they must prove the defendant made an unwarranted demand with menaces.

58.  A demand is unwarranted unless the person making it does so in the belief that he had reasonable grounds for making the demand and that the use of the menaces is a proper means of reinforcing the demand.

59.  The prosecution must also prove the defendant, when he made the demand, did it with a view to gain for himself or another or with intent to cause loss to another.

60.  The demand can be made orally as the prosecution alleges it is here.  It need not be explicit.  It can be an implicit demand. Here it is an explicit demand for money.

61.  The demand must be made with menaces.  Words or conduct must influence or intimidate someone to be menaces.  I quote Lord Wright in the authority of Thorne v Motor Trade Association [1937] AC 797 at page 817 who thought the word “menace” is to be:

“...liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended.”

In essence, the word should be given its ordinary common-sense interpretation.

62.  The demand is unwarranted unless the defendant had reasonable grounds for making the demand.  As I said, in addition, the use of menaces is also a proper means of reinforcing the demand.

63.  Here there is no challenge to the prosecution’s case that a demand for money as a tor dei fee or a protection fee in order to sell lunch boxes at a construction site is unwarranted, made with menaces. Prosecution witnesses understood it to mean they would only be able to do business if they paid a fee to the triad society who controlled who sold lunch boxes at sites.  If they tried to do business without paying, they would be harassed, stopped or disrupted.  This was an implied, implicit consequence.  It is extortion at its most basic form where triad societies are concerned.

64.  The defence do not dispute such a request or demand is unwarranted and with menace but does dispute that the defendant made such a demand.  This is an issue of fact and credibility, not one of law.

My Findings

65.  I have considered the evidence of all prosecution witnesses, the contents of the four video-recorded interviews as well as submissions made by defence counsel.

66.  I have no hesitation in rejecting the submission that PW1’s evidence was not reliable.  It was submitted her evidence was extremely vague and what she attributed to the defendant is ambiguous and open to different interpretations.  It was submitted what she said cannot amount to blackmail and the defendant’s case cannot be rejected outright.

67.  It has been submitted the court cannot rule out the possibility the defendant had proposed a partnership with PW1 and was collecting her share of tor dei to go with his to be paid to another. There was no demand with menace but a payment made pursuant to a business arrangement.

68.  PW1’s evidence was nothing of the sort.  She was introduced to the defendant because he could supply her with lunch boxes, having paid $10,000 tor dei fee to secure a site in Kowloon Bay.  She was not looking for a partner nor did the defendant or the introducer ever refer to their arrangement as a partnership.  The defendant told her when they first met that he would give her a site when she was ready to start her business.  On 16 December, he told her if she did not pay $10,000 tor dei, he would give the site to somebody else.  She paid it that same day.  Upon receipt of that money, he told her as she had paid tor dei, she could now sell meals at the Anderson Road site, meaning without fear of harassment.

69.  None of her evidence suggests this was anything but a one-sided unwarranted demand of money with implicit menace.

70.  To suggest their arrangement was a partnership is far‑fetched.  I am sure, just as PW1 was sure, the defendant put himself out there as a man who could offer her protection and a site to sell meals in return from a protection fee.  I agree she did not go into more detail with the defendant but according to her evidence, she had no further contact with him after the day she gave him $10,000 cash.

71.  PW2 did not confirm as submitted that there was an agreement between PW1 and the defendant that they would have to pay a protection fee to operate at the site.  It was not put to PW1 that they were going into partnership and the defendant was collecting tor dei on behalf of both of them to pay the tor dei of the site.

72.  I accepted her evidence entirely and found her credible and reliable; none of her evidence was contradictory or had discrepancies so serious it made me doubt her evidence.  The question is whether her evidence was enough to prove beyond reasonable doubt the defendant blackmailed her on 16 December.

73.  I am sure it can.  I am sure on the telephone the first time they spoke, the defendant intimated that he was part of the Lo Sun Triad Society and as she had paid tor dei to Siu Kwan of Tseung Kwan O Lo Sun, he said they were part of the same family. When he on 16 December said he had a site for her if she paid $10,000 tor dei, she did take this as being a triad member offering her a place of business but only if she paid a protection fee.  To pay a tor dei or tor dei fee is to pay for protection.  She could only do her business hassle-free if she paid.  If she did not pay and tried to do business, she would suffer consequences.  This is the nature of tor dei.  I am sure the demand came from the defendant, it was unwarranted and made with menaces.

74.  He verbalised the above when she handed over $10,000 to him by saying that now she had paid tor dei, she could sell meals at the Anderson Road site.  I am sure the prosecution can prove Charge 1 beyond reasonable doubt.

75.  PW2’s evidence was he spent a lot of time with the defendant, much more than PW1.  It has been submitted he has made up his evidence against the defendant.  It is submitted he is not reliable or credible.  After considering his evidence, I found no reason to disbelieve him.  There were no discrepancies that were serious enough to make me doubt his evidence.  The defendant’s case was a denial of all his evidence, but I reject the defence case that PW2 is framing an innocent man.

76.  I am sure PW2 accurately recalled conversations with the defendant when he claimed to be a member of a triad society, Sun Yee On, on the dates particularised in Charges 2, 5, 6, 7 and 8. I do not doubt the evidence and I am sure the prosecution can prove these five charges beyond reasonable doubt.

77.  The same applies to the two driving offences. PW2 made a note in his occurrence book the defendant drove away from the cooked food stall at a particular time in a specific vehicle on a specified date and recorded the same upon his return.  At the time PW2 made this record, he did not know the defendant was disqualified from driving any class of vehicle.  I do not believe he made this up.  I am sure he witnessed the defendant drive a vehicle despite his disqualification.  It is an Agreed Fact the defendant was disqualified and the vehicle would not be covered by third party insurance if driven by such a driver.  That is in paragraph 17 and 18 of admitted facts, P1. 

78.  The prosecution can prove these two charges beyond reasonable doubt.

79.  The two remaining charges to be dealt with are Charges 3 and 4, the two blackmail charges.

80.  I am sure on 30 December 2013, two weeks after the defendant blackmailed PW1 and PW1 gave him $10,000 tor dei fee, the defendant demanded another $10,000 from PW2, telling him it was the balance of $20,000 tor dei PW1 was supposed to have paid to sell meals.  Whether or not he told PW1 of the second demand is not relevant.  The charge particularises PW2 as the victim.  PW2 is sure the defendant knew of the plan for PW2 to help PW1 sell meals when she started.  Defendant said PW2 was to pay for PW1 and demanded immediate payment into his bank account.  I am sure PW2 paid $5,000 into that bank account as part of the demand for tor dei, not as a loan to the defendant because he had cash flow issues.  I am sure PW2 is not framing the defendant and fabricating his evidence.  His evidence proves beyond reasonable doubt the defendant blackmailed him on 30 December 2013, Charge 3.

81.  Lastly, on 2 January 2014, I am sure the defendant asked PW2 to drive him to the Anderson Road site.  Once there, I am sure he told PW2 that he could sell lunch boxes there but had to pay him $2 per box as the tor dei fee.  I am sure he added that if he paid, he would sell there without worrying or any trouble.  He specifically told PW2 to tell anyone that asked that he had the defendant’s permission to sell meals there.  All this adds up to an unwarranted demand with menaces.  The defendant did not need to verbalise the consequences of not paying tor dei; it was implied.

82.  I am sure the prosecution can prove beyond reasonable doubt all the elements of this charge, Charge 4. 

83.  Having heard all the submissions of defence counsel, nothing persuades me that the defendant has been innocently framed. Nothing persuades me to doubt my findings.  I am satisfied the prosecution have proved all the elements of the charges beyond reasonable doubt.  Accordingly, the defendant is convicted of Charges 1 through to Charge 10.