Fu, R. v

LORD JUSTICE ELIAS: This is an appeal against conviction and a renewed application for permission to appeal against sentence. It arises from a sentence of 10 years imposed on the appellant in relation to three counts: one of blackmail, for which he was sentenced to 10 years, one of common assault, for which he received six months concurrent, and one for violent disorder, for which he received four years concurrent. That followed his unanimous conviction on all these counts on 26th April 2016 at the Crown Court at Birmingham before His Honour Judge Wall and a jury.

The background to the offending is as follows. On 9th October 2015 the appellant and a second Chinese man, Ah Qiang, attended the complainant's (that is Feng Li's) hairdressing business, So Hair, in Birmingham's Chinatown. They spoke to Li and, according to the prosecution, demanded between £3,000 and £4,000 as protection money. Li refused and they threatened to smash up the shop.

On 24th October, the appellant and Qiang returned. They made similar demands and threats. They returned again three days later, this time accompanied by four unknown black men. When Li refused to pay any money he was assaulted by all six men. He suffered minor bruising. Before departing the appellant made a further demand for money of £10,000. The police were contacted.

On 28th October the appellant and Qiang returned to Li's again. This time he was not present, but further demands were made through his staff.

Later that evening Li attended a private function at a particular bar in Birmingham. The appellant, Qiang and a large group of men entered the bar. They were armed with knives, machetes and bars. Li and his party barricaded themselves into a function room whilst the gang threw bottles, smashed at the door. They caused damage to a value of some £3,500. The disorder lasted for several minutes.

The appellant was subsequently arrested. In interview he admitted presence on each of the occasions described by Li and he accepted that he asked for money which he said Li owed to others. He denied making any threats. He did not use any violence at any time. He did not see any weapons when they were in the bar. He said that Li owed a debt to a foreign student with whom the appellant was acquainted and that he was assisting the student to try and obtain repayment. At no time did he threaten Li with violence or inflict any violence. He was at the bar for an entirely innocent purpose. He did not even know Li was present on that occasion.

Li set out his allegations against the appellant in three statements dated 27th and 29th October 2015 and 2nd November 2015. These not only set out his account of events, but they also demonstrated the fear he had of the appellant and those with whom he was involved.

On the first day of the trial he failed to attend court. The Crown applied to read his statements pursuant to section 116(2)(e) of the Criminal Justice Act 2003. They relied not only on the assertions of fear contained in the witness statements themselves, but also similar assertions made in a statement dated 29th March 2016 and also a statement from an officer in the case, DC Bebb, dated 20th April 2016 (that is the first day of the trial itself). In DC Bebb's statement there is a reference to Li's wife saying that her husband had gone away and would not be returning during the dates of the trial.

There was opposition to the statements being admitted. Section 116 sets out certain circumstances where statements evidence may be admissible without the witness appearing. One of these is where "through fear the relevant person does not give or does not continue to give oral evidence in the proceedings ..." Section 116(3) notes that fear is widely construed and includes fear of death or injury of another person or of financial loss. Subsection (4) provides that leave should be given in relation to subsection (2)(e) - that is the provision relating to fear - only if the court considers that the statement ought to be admitted in the interests of justice and there are a number of matters which are set out which a judge has to consider when deciding whether admission is in the interests of justice or not.

In this case the application was opposed. It was alleged that the fear was not particularised, that it was uncorroborated and had been untested and that in all the circumstances it would be against the interests of justice to allow the evidence to be admitted.

The judge ruled that the statements were admissible and directed that they should be read to the jury. He indicated that he would take the usual steps which a judge has to take in these circumstances of ensuring that the jury are not informed why the witness has failed to give evidence, and to put fully and fairly before the jury the points which the prosecution might wish to make.

The judge did not in fact at that point give his ruling as to why he was willing to have this evidence admitted in this way. He reserved his reasons. Subsequently, following a luncheon adjournment on that same day, 20th April, the Crown were informed that Li was in fact at his place of business - it had been thought that he was not available. At that point a further application was made for Li to be brought to court. The judge refused that but asked for a further statement to be taken from Li. That was provided on the following day, 21st April. Following representations from the Crown in chambers and from the defence in open court, that statement was not disclosed to the defence. The judge said it did not in his view pass the test for disclosure, but he did think it was necessary to alert the defence to part of that statement and so the following statment was made to the defence and later was placed before the jury:

It was suggested by the appellant that there was an inconsistency in what was being now said by Li and what he had allegedly said to the police officer in the police officer's statement. In that statement he had made an observation which, at least on one reading, could be treated as a complaint or an allegation that there had been threats made against him of reprisals if he were to go and give evidence. In the circumstances, the appellant sought to have the judge take action to bring the witness to court so that he could be further cross-examined about this and it could be tested whether he was genuinely in fear and if so, what the source of that fear was.

The judge was not willing to take that step. He was satisfied that notwithstanding that the witness was available, it was not necessary to call him back to court and furthermore he did not think that the potential conflict - the judge in fact thought that there was a conflict - in any way undermined the basic conclusion he had already reached that in the circumstances this evidence should be allowed to be admitted without any oral evidence being given by the witness. The judge said this in an addendum to his reasons for allowing the evidence:

We have heard submissions today from Mr Hallworth. The argument has been narrowed a little from that which was advanced in the original grounds. It is accepted that in principle it was open to the judge in this case to conclude that there was fear and that in the circumstances the relevant statutory test was satisfied. But Mr Hallworth submits that nonetheless there was real prejudice to his client in not being able to cross-examine Mr Li about certain key aspects of the case, in particular whether or not there had been threats made against Li by his client and others in the way that was alleged. He submits that in the circumstances it was necessary for the judge to have taken greater steps than he did to seek to bring Li to court and to allow him to be subjected to cross-examination, perhaps on a voir dire, in order to determine whether or not he really was in fear for the reasons that he gave. It is submitted that if this had been done, it may have been apparent that the fear was not as significant as the judge thought. It may have been appropriate in those circumstances for the judge to refuse the application of the Crown and that would necessarily have had a significant impact upon the course of the trial.

In our judgment, the judge was entitled to take the view that he did. It is true that other judges may have gone further and sought to take positive steps to compel Li to come to court, but it seems to us that was a difficult decision for the judge to make, not least because all the evidence before the judge suggested that there was genuine and very real fear. That was supported by the fact that the CCTV evidence, which there was in relation to events in the bar, demonstrated that there had been activity, apparently directed by the appellant, which would necessarily put somebody in fear that he was the target of that activity.

The judge had to make a judgment about whether or not in the circumstances there would be anything to be gained by seeking to compel this witness to come to court. It would have been difficult for the judge if the witness had refused to respond to a witness summons, for example, perhaps through fear. Given the obvious fear he displayed to the officer, as reflected in the officer's statement, and his own claims to be afraid reflected in the whole series of statements that he had made, the precise source of that fear may be thought to have been not particularly important in the circumstances of this case. Certainly, the possible discrepancy in the accounts he had given as to whether or not he had been threatened specifically does not in our view begin to undermine the judge's conclusion that there was genuine fear and that this man was not willing to come to court. The police officer explained in his statement that he had taken steps to ensure that the witness was aware that special measures could be taken to seek to minimise any adverse consequences of his giving evidence, but in the circumstances that was not considered satisfactory by the witness himself and the judge observed that he could understand why.

Accordingly, we do not think there was any procedural defect by the judge such as to render it unfair for him to have taken the decision he did to admit these statements. It is not disputed that once they were admitted the judge dealt with them fairly in his summing-up. He dealt with the absence of the witness perfectly properly. He pointed out the discrepancies in the statements and observed that they were relied upon by the appellant to demonstrate the unreliability of the witness. Nonetheless, the jury has convicted him of these various offences. Therefore we reject the appeal against conviction.

We turn to the renewed application for leave to appeal against sentence. The judge summed up the heart of his analysis as follows:

We disagree. This was a protection racket. The fact that it related to only one business is neither here nor there. These are extremely serious offences. They adversely affect commerce. They adversely undermine the confidence people have in the system of justice and the rule of law. There was significant violence and threatened violence committed in the course of these blackmail activities. In our judgment the judge was entirely justified in reaching the conclusion that a condign sentence was required and one of 10 years was not in our view manifestly excessive. Therefore we refuse permission to appeal.