Court File and Parties

Court File No.: Newmarket Date: 2013-10-15 Ontario Court of Justice

Between: Her Majesty the Queen — and — Huo Quaw Zheng

Reasons for Judgment

Heard: October 9, 10, 15, 2013 Reasons Released: October 15, 2013

Counsel:

• Mr. Fuller for the Crown
• Mr. Zheng self-represented

KENKEL J.:

Introduction

[1] Mr. W.'s company ships recycled metal and plastics to China. He conducts overseas business through an agent K.L. and has no direct contact with companies in China. One day a man went to his residence and spoke with his wife. The man left his phone number and told Mrs. W. to have her husband call about a business matter. The man added that if Mr. W. didn't call back they should "watch out". That started a chain of events in which Mr. W. says he was pressured by the accused to pay $54,000 in relation to a supposed business debt. Mr. W. testified that he had never met or had business dealings with Mr. Zheng and his business has no such outstanding debt or claim.

[2] Mr. Zheng submits that his involvement in the matter was limited to helping a friend and that there is no credible evidence that he did anything to threaten, menace or attempt to intimidate Mr. W. to pay money.

[3] Mr. Zheng is charged with Extortion contrary to s. 346(1.1) of the Criminal Code. The central issues at trial are the credibility of the witnesses and whether the Crown has proved the charged alleged beyond a reasonable doubt.

Identification

[4] The man who first spoke with Mrs. W. at her home identified himself as "Zheng". Mrs. W. picked the accused Mr. Zheng out of a photo lineup. Mr. W. also picked Mr. Zheng out of a photolineup conducted at a separate time.

[5] Both witnesses had the opportunity to make direct observation of the man they dealt with. Mr. W. met with that person for an extended time. Both photo lineups were conducted independently using photographs shown once seriatim in the very careful procedure outlined by the police witnesses.

[6] Mr. Zheng admitted in his statement and in submissions at trial that he was the person who went to the W. residence and who later met with Mr. W. Even without that admission and evidence, the direct identification by both Mr. and Mrs. W. is credible and compelling and I find would otherwise prove Mr. Zheng's involvement.

The Claim of a Business Debt

[7] Mr. W. acknowledged that from time to time there can be adjustments required in shipping contracts as items shipped from Vancouver arrive in China underweight. He noted this happens in winter time when outgoing containers may have ice or snow weight that is gone by the time the container reaches China. Small discrepancies of 500 to 600 lbs are not uncommon and are adjusted by Mr. W. through his agent.

[8] In 2010 Mr. W. was advised of a claim and he asked for the usual documentation – official weight taken at the receiving terminal, 5 photographs showing the container as received unopened and then opened. The claim was for a higher loss than typically claimed so Mr. W. did not simply pay upon request but was willing to pay if the other party produced business documentation. No documentation was ever sent to Mr. W.

[9] Mr. W.'s business pays claims for shipping variances as a matter of routine and I accept his evidence that he was willing to pay in relation to this claim if the other party provided supporting documentation. Not one document was ever provided.

[10] As we heard at trial, commodities shipped via container are officially weighed prior to leaving port and weighed again upon entry at the destination. The evidence shows that a business wanting to make a claim would have those records available and would be able to provide photographs of the container at issue. It's logical that Mr. W. would request such information before paying out any claim of substance. Mr. W.'s testimony on this issue including his explanation of typical business practice in this area was credible, logical and unchallenged by any other credible evidence.

[11] It's not credible that there was ever any business debt in the $54,000 amount suggested by Mr. Zheng. It's not logical that a business suffering that type of loss would choose not to submit any documentation of such a large claim even though Mr. W. had expressed a willingness to pay. It's not logical that a business would forgo a straightforward means of obtaining an adjustment to the shipping contract in favour of hiring several unemployed men in another country to attempt to collect such a large amount.

[12] Although the $54,000 debt was fictitious, Mr. Zheng was working with others and as he said in his statement he may not have known whether the debt was legitimate. The person behind the scheme would have had to know that Mr. W. was involved in international shipping and there's no evidence that Mr. Zheng would have had access to that information.

[13] Whether or not Mr. Zheng knew that the claim was false, his liability on this charge turns not on the accuracy of the claim but rather on his own statements and actions in relation to the claim.

Extortion

[14] Mr. Zheng relied upon his statement provided to police in answer to the allegations and the evidence of Mr. and Mrs. W. The Crown notes that Mr. Zheng chose not to testify and that his statement to police was neither sworn nor subject to cross-examination.

[15] I've considered Mr. Zheng's evidence in his statement in the context of all of the evidence at trial and find I cannot accept it nor does it leave a reasonable doubt either alone or in combination with other evidence.

[16] Mr. Zheng's statement points to someone he calls "the fat guy" who he says lived in his home at that time and who directed the collection of the debt. I do not find it credible that Mr. Zheng would have someone staying in his home but not know his name. I don't find it credible that an international company would be able to locate an unemployed man living in Mr. Zheng's garage to act as their agent nor do I find it credible they would choose such a person to collect their debt.

[17] Mr. Zheng's statement that he was not directly involved is contradicted by his actions in knocking on the W.'s door, by leaving his phone number and name as the person to contact, and by his control of the karaoke meeting as credibly described by Mr. W.

[18] The testimony of Mr. and Mrs. W. was generally internally consistent. There was some discrepancy as to the exact order of events but much of that was clarified when Mrs. W. was able to refresh her recollection from a contemporaneous statement.

[19] Both witnesses testified in a straightforward fashion. There was no evidence of exaggeration or animus against Mr. Zheng. On the contrary, both witnesses described a scenario of subtle but escalating pressure but with no reference to direct threats or the use of weapons or violence. Their evidence is consistent with external circumstantial evidence such as the characters spray painted on their home.

[20] I find both Mr. and Mrs. W. are credible witnesses and I accept their testimony.

[21] Mr. Zheng is correct that there is no direct evidence of threats or use of violence but as explained during the Crown's submissions the law "does not require the person accused of extortion to act clumsily and without subtlety". R. v. Barros, 2011 SCC 51, para. 60

[22] The following circumstances caused the complainants to fear for their safety in relation to Mr. Zheng's demand for payment:

• The request for payment of $54,000 without any supporting documentation or business reference.
• The amount of the claim well beyond normal business claims.
• The fact that others were assisting Mr. W. when he attended at the W. residence and at the karaoke bar.
• The statement to Mrs. W. by Mr. Zheng that if her husband did not call him back they should "watch out".
• The statement to Mr. W. by Mr. Zheng in their phone conversation that if Mr. W. didn't meet with Zheng "you're taking care of yourself" where Mr. W. understood that expression to mean "something might happen to you".
• The note left on Mr. W.'s door telling him that if he didn't call Zheng "any consequence you will be responsible by yourself!".
• The fact that Mr. Zheng attended the meeting at the karaoke bar with others but Zheng dominated the meeting and pressured Mr. W. to pay.
• Mr. Zheng's statement during the meeting that if the money was not paid that very night he would double the amount owing which is completely inconsistent with any legitimate business practice.
• The tone of voice and words used by Mr. Zheng during the meeting at the karaoke bar as described by Mr. W.
• Mr. Zheng's statement during the karaoke bar meeting that he and his associates were well known to the "big brothers" using a Cantonese term which in that context refers to triads or organized crime.
• The insertion of crazy glue into locks days at the W. home after that meeting when Mr. W. did not pay.
• The subsequent spray painting of the W. residence with Chinese characters indicating a debt is owed which Mr. W. explained is known in his native Hong Kong and in popular culture there as a public intimidation tactic used by triads or organized crime.

[23] Considering all of the evidence including the circumstances outlined above, I find that a person in Mr. W.'s position, with his knowledge of the culture he shares with Mr. Zheng, would reasonably fear a threat of violence from the statements and actions of Mr. Zheng and the fact of the glued locks and public intimidation via spray painting plainly done by Mr. Zheng or someone working with him in pursuit of his demand for payment.

Conclusion

[24] I can find no evidence which leaves a reasonable doubt. I find that the Crown has proved the charge alleged beyond a reasonable doubt and there will be a finding of guilt.

Delivered: 15 October 2013

Justice Joseph F. Kenkel