R. v. NG CHOR WAN and Others

IN THE COURT OF APPEAL

1994, No. 304
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. These are applications for leave to appeal against conviction.

2. The case comes to us from a trial before HH Judge Whaley in the District Court.

3. Four persons were on trial. The charge sheet contained four charges. The 1st charge was of blackmail. It was against all four accused. In the result, the 1st, 2nd and 3rd accused were convicted thereon. We are not concerned with the 2nd or 3rd charge. No one was convicted on either of them. The 4th charge was of claiming to be a member of a triad society. It was against the 3rd accused alone. And he was convicted thereon.

4. Those are the convictions in respect of which leave to appeal is sought.

5. The appellant is a man in his early 50's. He is divorced. The 2nd accused is his daughter. She is in her 20's. So is the 3rd accused. He is her fiancé.

6. What the judge found proved beyond reasonable doubt against these three applicants may summarised as follows.

7. The 1st accused had had an affair with a woman in her early 30's. She ended that affair, wishing to be free of him. His attitude was that if they were to part, then she had to pay him a substantial sum of money. She was unwilling to do that.

8. So, in order to get his way, he master-minded and took part in a scheme. The scheme was one into which he brought the 2nd and 3rd accused.

9. What happened under that scheme was that the woman was accosted outside her place of work in Central and taken by a van to a private room in a restaurant in Tsuen Wan. There, a sum of money, ultimately reduced to $120,000 was demanded of her. Such demand was made with menaces. That took the form of threats to harm her if she did not pay. In all of that, the 1st, 2nd and 3rd accused took part. Additionally, the threats were reinforced by the 3rd accused's claim that he was a member of a triad society.

10. In finding those facts, the judge accepted the woman's evidence.

11. According to the defence, that is not the way it happened. The defence case was that all that happened was that the 1st accused was calling upon the alleged victim to repay him what she owed him.

12. That meant that the judge had to consider what financial dealings the two of them had with each other in the course of their affair. Those dealings do not appear to have received adequate consideration by the judge.

13. We do not say that the judge had to get to the bottom of such dealings. If he had recognised that he had not managed to do that, but felt sure nevertheless that the alleged victim was telling him the truth as to being subjected to demands with menaces by the applicants, the judge might still have been entitled to convict. After all, a court may accept part of what a witness says.

14. But that does not appear to have been the judge's approach here. He accepted the victim's account of being blackmailed without either finding that the earlier dealings between her and the 1st accused were as she said or finding that she was to be believed as to blackmail even though she was not or might not have been wholly truthful as to such dealings.

15. The judge's notes of the cross-examination by the 1st accused's counsel of the alleged victim includes the following questions and answers (at pages 67 to 69 of the record):-

" Q. Have you ever used Dl's money?

A. Don't know whether you mean entertainment etc.

Q. No - cash, from his bank account to your bank account?

A. He did deposit the sum of $100,000 into my bank account.

Q. You have the Hong Kong Bank account no. 111-324-620-001?

A. Yes.

Q. Any cash deposited in that account must be recorded?

A. Yes.

Q. On 4th May 1991 a cash transfer from D1's bank account to your bank account was made?

A. I am not clear.

Q. As a staff member of the Hong Kong Bank you could easily check that?

A. Presently I am not in that Department. I could not access current accounts.

Q. You could check your own current account?

A. I would have to check it through the others. The records are not with us.

Q. Was it recorded?

A. Yes.

Q. On 24th May 1991 a direct transfer was made from the Defendant's bank account to yours of $50,000?

A. Not clear.

Q. On 22nd June 1991 another direct transfer of $11,000?

A. I don't know without looking at the record.

Q. On the 16th September 1992 a sum of $20,000 was deposited to your account?

A. Cash or cheque?

Q. Direct from the Defendant's bank account to your account?

A. I don't know.

Q. On 6th March 1992 $120,000 was deposited in the same way into your bank account?

A. I think in March it was around $100,000 was deposited into my account - as I stated.

Q. 30th March 1992 $14,000 was deposited to your account (direct from D1's account)?

A. Can you show me the statement?

I don't know.

Q. Not possible. Your bank would not release the statements to us.

Q. 31st July 1992 $30,000 was deposited to your bank account in the same way?

A. It would be better if you could show me the bank statements. I do not know what happened.

Q. On 1st October 1992 $5,000 was deposited (all these from the bank account to bank account)?

A. In regard of that he mentioned he would try to repay the money back to me gradually since I raised a separation. He said he would try his best to repay but could not do so in one go. I did not know when he would do that.

Q. The above amounts were transfers from bank to bank which we can prove by documents. Besides these, D1 gave you a lot of cash for your spending?

A. He has never paid me any cash for expenses. Usually when we went out I was the one who paid the expenses.

Q. The above transfers totalled $270,000. Do you remember such?

A. Not clear."

16. That leaves things very much in the air. And we are left with a real sense of unease about these convictions. The behaviour of each applicant is suspicious. And, overall the bulk of the evidence in the case apart from that of the two principals, the alleged victim and the 1st accused, tended to support her rather than him. But such evidence was not all one way. And all things considered, we regard these convictions as unsafe and unsatisfactory. Treating the applications for leave to appeal as the appeals themselves, we allow the appeals, quash these convictions and set aside the sentences passed pursuant to the same.