R. v. Zhou Date:, 2011 BCPC 237

Citation: R. v. Zhou Date: 20110826 2011 BCPC 0237 File No: 210216-4-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WEI JIAN WILLIAM ZHOU BAN ON PUBLICATION 486.4(1) CCC; 486.5(1) CCC EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. E. BASTIN Counsel for the Crown: M. McGivern Counsel for the Defendant: M. Klein Place of Hearing: Vancouver , B.C. Date of Judgment: August 26, 2011 [ 1 ] THE COURT: Regina versus Wei Jian William Zhou, judgment. The defendant, Wei Jian William Zhou, is charged in Information Number 210216-C-4 with two offences.

Count 1 charges Mr. Zhou jointly with Cheng An Richard Yang: ... from the 27th day of October, 2009 to the 21st day of November, 2009, inclusive, at or near Vancouver, in the Province of British Columbia, conspired together to commit the indictable offences of kidnapping and extortion of FWD and XZZ, contrary to Section 465(1) (

c) of the Criminal Code . [ 2 ] Count 2 charges Mr. Zhou jointly with Mr. Yang: ... from the 30th day of October, 2009 to the 21st day of November, 2009, inclusive, at or near Vancouver, in the Province of British Columbia, unlawfully counselled S.C. and P.M. to commit the indictable offences of kidnapping and extortion of FWD and XZZ, which

offences were not committed, contrary to

Section 464 (

a) of the Criminal Code . [ 3 ] The trial in this case began on July 19th, 2011, with both defendants being tried together. The Crown closed its case against both defendants on July 22nd, 2011. On the morning of July 25th, 2011, Mr. Yang discharged his counsel, Mr. Stevenson. The court then ruled that the two defendants would be severed. Mr. Yang was adjourned to September 12th, 2011, to obtain new counsel. The trial of Mr. Zhou continued. [ 4 ] Mr. Zhou's defence concluded on July 27th, 2011. Counsel's submissions were made on July 28th, 2011, and the case of Mr. Zhou was then adjourned until today for judgment. I will begin this judgment with a

summary of the facts of the case that are revealed by the trial evidence and are common ground with counsel. [ 5 ] The case begins in China where during the years of 2003 and 2004, Mr. Zhou loaned or invested considerable sums of money to or with the named alleged victim, XZZ (hereinafter referred to as "Z.") Z.'s husband, FWD (hereinafter referred to as "D.") is the second named alleged victim who shared in monies advanced by Mr. Zhou. [ 6 ] In 2004, Z. and D. left China and came to Canada without paying Mr. Zhou money that was owed to him. The exact amount of the money owed by Z. and/or D. to Mr.

Zhou is not clear, but by 2009, Mr. Zhou alleges the amount was in the range of seven million Canadian dollars. [ 7 ] Sometime in 2008, Z. was kidnapped in Richmond, British Columbia, by three persons. The plot was discovered by the RCMP and the three persons were arrested and convicted in relation to the crime. [ 8 ] In September of 2009, Mr. Zhou travelled to the Greater Vancouver Area of Canada from China. His purpose was to locate Z. and D. and attempt to obtain from them all or some of the money owed to him. Mr.

Zhou's efforts to collect the money owed to him led him to a store known as "SpyZone" located at 321 West Pender Street in Vancouver, British Columbia. At the store, Mr. Zhou met the proprietor, Mr. Yang, the co-defendant in this case. [ 9 ] Mr. Zhou did not and does not speak any English of consequence and he communicated with Mr. Yang in the Mandarin language. Mr. Yang is and was reasonably fluent in the English language. Mr. Yang was able to assist Mr. Zhou in attempting to collect the money owed to him by interpreting things said by Mr.

Zhou to English-speaking persons who also became involved in the debt collection enterprise. [ 10 ] One such person was a fellow named Brad who was introduced to Mr. Zhou by Mr. Yang. Brad was to assist Mr. Zhou in some way to attempt to collect Mr. Zhou's money. Directly or indirectly, Brad conveyed information to the Vancouver City Police and that information led to a police investigation into Mr.

Zhou's efforts and plans to collect the money owed to him. [ 11 ] The police investigation involved two City of Vancouver police officers, namely, S.C. and P.M., posing in an undercover capacity as tough criminals who were capable of assisting Mr. Zhou in any way necessary in an attempt to collect his money. [ 12 ] The initials "S.C." and "P.M." in Count 2 of the Information refer to those officers. In their dealings with Mr. Zhou and Mr. Yang, S.C. used the name "James" and P.M. used the name "Jay." [ 13 ] There were six meetings that took place in the course of the police undercover operation.

On October 30th, 2009, S.C. and P.M. met with Mr. Yang. On November 2nd, 10th, 13th, and 19th, S.C. and P.M. met with both Mr. Yang and Mr. Zhou. On November 21st, 2009, S.C. alone met with Mr. Yang and Mr. Zhou. All six meetings took place at the premises of the SpyZone store at 321 West Pender Street, in Vancouver. [ 14 ] What was said by the persons present at the meetings of November 13th, 19th, and 21st was recorded by recording devices secreted on the persons of S.C. and P.M. These interceptions were made pursuant to judicial authorization. [ 15 ] Those recordings were downloaded on disks.

The disks containing the three recorded conversations are contained in Trial Exhibit 10. A transcript of those recordings is in the booklet marked as Trial Exhibit 13. Various corrections to the transcript prepared by the Crown witness, Sergeant Yung, are set out in Trial Exhibit Number 16. [ 16 ] Shortly after the completion of the meeting of November 21st, 2009, Mr. Zhou and Mr. Yang were arrested by City of Vancouver police officers at the SpyZone store on West Pender Street in Vancouver. [ 17 ] The Crown called six witnesses in this trial.

Those witnesses were Z, City of Vancouver Police Detective Berda, RCMP Constable Melissa Goldson, S.C., City of Vancouver Police Sergeant Terry Yung, and Special Constable David Ainsworth. [ 18 ] Mr. Zhou gave extensive evidence in his own defence. [ 19 ] Z. testified that she did have business dealings in China with Mr. Zhou in the years 2003 and 2004. Z. testified that Mr. Zhou believed that she and her husband owed Mr. Zhou a considerable sum of money. Z. testified that whatever money was owed by her and her husband to Mr. Zhou was the result of an exorbitant interest rate charged by Mr. Zhou.

Z. testified that she was forcibly taken by some men in Richmond in 2008, but that the plan by the men to collect money from her was thwarted when the RCMP learned of the plot and were able to apprehend the men and secure the release of Z. [ 20 ] RCMP Constable Melissa Goldson testified that she was the file coordinator for the Z. case and she confirmed that three men were arrested, charged, and convicted in relation to the of kidnapping Z. in Richmond, British Columbia, in 2008. [ 21 ] Detective Berda of the Vancouver Police Department testified that he was the officer in charge of the undercover police operation wherein S.C. and P.M. would pose as criminals in an attempt to be hired by Mr.

Yang and/or Mr. Zhou to kidnap Z. and her husband for the purpose of extorting money from them that was owed to Mr. Zhou.

[22] S.C. testified as to the various meetings he had with Mr. Yang and Mr. Zhou that have been enumerated above. S.C. testifiedthat the meetings of November 13th, 19th, and 21st were recorded and that the transcript of the recorded meetings, that is, Trial Exhibit13, is an accurate account of what was said by the various parties at those meetings. [23] Vancouver Police Sergeant Terry Yung testified as an expert with respect to the

interpretation of the Mandarin language into theEnglish language. He testified that he compared the transcript, Exhibit 13, to what he heard on the disks that are Trial Exhibit 10. Theofficer testified that for the most part, Exhibit 13 was accurate, but that he did notice what he regarded as inaccuracies in some portionsof the transcript. Sergeant Yung testified as to those inaccuracies as he heard the recordings played in court.

The inaccuracies are set outin Trial Exhibit 16 that is part of a letter sent by Crown counsel in this case to defence counsel. [24] The evidence of Special Constable David Ainsworth was simply that he downloaded the conversations intercepted by S.C. andP.M. from the recording devices they used to the disks that are Trial Exhibit 10. [25] There were various exhibits entered in this trial apart from those mentioned above. Those exhibits are a matter of record andwere not contentious.

This case turns entirely on the contents of the recordings that are on the disks that are Trial Exhibit 10 and thetranscripts of those recordings that are Trial Exhibit 13. It is therefore not necessary to enumerate or discuss the other trial exhibits. [26] The law that applies to this case involves the definition of the terms "kidnapping," "extortion," "conspiracy," and "counselling." The term "kidnapping" is not defined in the Criminal Code. It is defined by common law. That definition is that kidnapping requires themovement of a confined person (see R. v. Oakley (1977), 1977 ALTASCAD 118 , 36 C.C.C. (2d) 436).

The concept ofmovement of the confined person is critical to the subject case.

Section 279 of the Criminal Code makes it an offence to kidnap a personwith intent for the person to be confined or held or transported against the person's will. [27] The crime of extortion is defined in s. 346(1) of the Criminal Code as follows: Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations,menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or towhom violence is shown, to do anything or cause anything to be done. [28] The term "conspiracy" is also defined at common law and not by statute.

In the case of R. v. O'Brien, (SCC),[1954] S.C.R. 666, the Supreme Court of Canada adopted the following definition of "conspiracy": A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do alawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect,the very plot is

an act in itself, and the act of each of the parties is punishable if for a criminal object ... [29] The term "counselling" is also defined at common law and not by statute. In the case of R. v. Hamilton, 2005 SCC 47, atparagraph 29, the majority judgment of the Supreme Court of Canada made the following statement as to the definition of "counselling": In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence.

And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified riskinherent in the counselling ... [30] The position of the Crown in this case on Count 1 is that the intercepted communications prove beyond a reasonable doubt thatMr. Zhou conspired with Mr. Yang to kidnap and extort D. and Z. Similarly, it is the Crown's position with respect to Count 2 that thetrial evidence, especially the intercepted communications, proves beyond a reasonable doubt that Mr. Zhou counselled S.C. and P.M. tokidnap and extort D. and Z.

The Crown's position in this case rests upon several statements made by Mr. Zhou in the Mandarin languagethat are set out in the transcripts of the recorded conversations of November 13th, 19th, and 21st of 2009. [31] The position of the defence in this case is that the court must closely examine the evidence to determine the intention of Mr.Zhou. It is submitted that that intention was to locate D. and Z. and demand that they pay the money they owed to Mr. Zhou. Thedefence submits that the intercepted conversations and the evidence of Mr. Zhou show at least a reasonable doubt that Mr.

Zhouintended to kidnap or extort D. or Z. It is not disputed by the defence that Mr. Zhou intended to locate D. and Z. and request or demandthe payment of money owed to him. [32] The defence submits that Mr. Zhou did not intend to seize and move either D. or Z. against their will and therefore did not intendto kidnap either of them. The defence submits that Mr. Zhou did not intend to attempt to collect the money owed to him by any of theunlawful means enumerated in s. 346 of the Criminal Code and therefore did not intent to extort D. or Z.

The defence submits thatwithout the intention to kidnap or extort D. or Z., Mr. Zhou could not be part of a conspiracy to do that and he could not be guilty ofcounselling anyone to perform those illegal acts. [33] It is an important part of the Crown's position in this trial that Mr. Zhou was involved as an organizer of the 2008 kidnapping ofZ. That position is strongly opposed by the defence. I will deal with that issue at this point in this judgment. [34] In the transcripts that are Exhibit 13, Mr. Zhou makes various references to the 2008 kidnapping of Z.

Those references wereenumerated in the final submission of the Crown. Those references from Exhibit 13 are as follows: Tab 1, line 593: Last time because we thought it too simple, the plan failed. As a result, he reported to police and those guys were sentenced. Tab 2, line 526: We had guns and knives last time. Tab 2, line 1149:

Tell him last time it was because his daughter reported to police. Police got us. His daughter reported to police. Tab 2, line 1280: Last time they failed. [ 35 ] In addition, the Crown submits that Mr. Zhou's knowledge of a certain licence number of a BMW automobile driven by Z. implicates Mr. Zhou in the 2008 kidnapping of Z. As to the knowledge concerning the BMW motor vehicle, Mr. Zhou testified in cross- examination that he learned that information from an investigation firm named Owens, which he had hired to try and locate D. and Z. [ 36 ] As to the various comments made by Mr.

Zhou about "last time," "we," and "us," Mr. Zhou explained the meaning of his statements in the course of his evidence given in cross-examination. This evidence is found principally at page 15 of the trial transcript of Mr. Zhou's evidence given on July 27th, 2011. Mr. Zhou testified that when he used the pronouns "we" and "us," he was referring collectively to the 80 or so victims who were owed money by D. and Z. [ 37 ] Mr. Zhou also testified that many people knew of the 2008 kidnapping. He testified that, "After the fact, a lot of people learn about it" (trial transcript, July 27, 2011, page 15, line 31).

It is significant that Mr. Zhou used the pronoun "they" at line 1280 of tab 2 of Exhibit 13 when referring to what was done "last time." [ 38 ] Upon a consideration of all of the evidence relating to Mr. Zhou's statements concerning the 2008 kidnapping of Z., I am not able to agree with the Crown's submission that those statements amount to an admission by Mr. Zhou to have been an organizer of that enterprise. I cannot and do not reject Mr.

Zhou's evidence to the effect that any reference he made in his conversations with the undercover police about the 2008 kidnapping were not admissions of being involved in that matter. [ 39 ] Therefore, the Crown submission in this case that it has been proved that in November of 2009, Mr.

Zhou planned to kidnap D. and Z. in part because he had been actively involved in the kidnapping of Z. in 2008 cannot be accepted. [ 40 ] It is the Crown's submission in this case that the alleged conspiracy and the alleged counselling were completed by the conclusion of the second recorded meeting that occurred on November 19th, 2009. That meeting is the critical evidence in this trial. The meeting involved S.C. and P.M., Mr. Yang, and Mr.

Zhou. [ 41 ] From the conversation near the beginning of that meeting and from conversation in the whole of the first recorded meeting of November 13th, 2009, it is clear that any plan as to how Mr. Zhou was to recover money owed to him by D. and Z. had not been firmly established. [ 42 ] The critical issue in this trial is whether during the course of the November 19th, 2009, meeting, the trial evidence proves beyond a reasonable doubt that Mr.

Zhou planned to collect the money owed to him in a manner that amounted to the commission of the conspiracy and/or the counselling alleged in the two charges before the court. [ 43 ] There is no doubt that Mr. Zhou enlisted the assistance of or hired the undercover police to locate D. and Z. That was the first step in the plan to collect money from D. and Z. It is also clear that the plan in the mind of Mr. Zhou involved some sort of detention of D. and Z. In this regard, Mr. Zhou speaks of "getting" the two people. For example, at line 953 of the transcript of the meeting, Mr.

Zhou states, "When you get him," and at line 989, he states, "As long as you get the person," and again at line 994, "As long as you can get the person." [ 44 ] There is, in my opinion, at least up to the point in the meeting represented by page 25 of the transcript, more than a reasonable doubt that Mr. Zhou had committed either of the conspiracy or counselling offences charged. In this regard, it is vital to note that Mr. Zhou does not counsel or agree to any violence being used in the course of detaining D. and Z. [ 45 ] Although the undercover police mention that they have and will use guns and knives, Mr.

Zhou states at line 526 of the transcript, "We had guns and knives last time" insinuating that the use of guns and knives would not result in the successful collection of his money. Mr. Zhou's trial evidence on this point was as follows, "What I meant by that was that we're destined to fail if we use this kind of rough and violent method." (July 25th, 2011, trial transcript, page 25, line 39). [ 46 ] I do not reject that evidence given by Mr. Zhou. In a similar vein, when the undercover police deal with Mr.

Yang to rent knives and other items from his store that are apparently to be used in some violent way against D. and Z., Mr. Zhou voices his disagreement by saying, "Yes, don't lend." (Exhibit 13, tab 1, page 23, line 1003). [ 47 ] Well into the critical meeting of November 19th, 2009, Mr. Zhou was asked by P.M., "If he wants to hurt the guy or what," and Mr. Zhou responds by saying, "That is not important." (Exhibit 13, tab 2, page 24, line 987). Just minutes later in the conversation, the undercover police refer to killing D. or Z. if they do not pay. This is interpreted to Mr. Zhou by Mr.

Yang as, "He says if they don't pay, they can kill them." This comment is completely ignored by Mr. Zhou when he responds by saying, "What else they need to know? Do they need the document shows that he owes me money?" (Exhibit 13, tab 2, page 24, line 1019). [ 48 ] Earlier in the November 19th, 2009, conversation, S.C. says at page 9, line 355, "We cut off his fingers," and makes other comments about violence to D. and Z. Mr. Zhou responds to this by asking, "But this will be when they tie him?" It is my opinion and finding that this comment by Mr. Zhou was not an agreement or

an act of counselling to tie up D. or Z. It was a question asked by Mr. Zhou. [ 49 ] Mr. Zhou does make several statements as to how he understands the plan to attempt to recover his money will unfold. Clearly, the first step in the plan is to locate the correct people. At line 545 of page 13 of tab 1 of Exhibit 13, Mr. Zhou says, "Find the person first." [ 50 ] Much later in his dealings with the undercover police, Mr. Yang interprets for Mr. Zhou a statement by P.M. as follows, "He says

it is easy. It will easy to get them." Mr. Zhou responds by saying, "Not to get them. The important thing is by talk. What do theythink?" (Exhibit 13, tab 2, page 9, line 332, as corrected). Sergeant Yung testified that in this context, "talk" could mean "bargain." [51] At line 953 of the same transcript, Mr. Zhou states, "Only when you get him, I will talk to him on phone." At line 989, Mr. Zhoustates, "As long as you get the person, he will pay for sure." Similarly, at line 994, he states, "As long as you can get the person, he willpay." [52] What was in the mind of Mr.

Zhou early on in his dealings with James and Jay may well have been influenced or reinforcedwhen at the meeting of November 13th, 2009, Mr. Yang interpreted Mr. Zhou as follows, "He says they will sit there after findingthem." (Exhibit 13, tab 1, page 12, line 515). At line 1031 of the transcript of November 19th, 2009, meeting, Mr. Zhou states, "That isgood. Now we need to set something down." [53] My ruling in this trial is that at the point of that remark by Mr. Zhou, the trial evidence does not prove either Count 1 or Count 2beyond a reasonable doubt. At that point, Mr.

Zhou has agreed to pay the undercover police to locate and detain D. and Z. in order thathe, Mr. Zhou, can request or demand payment of the money owed to him. [54] Mr. Zhou does not envisage the detention of D. and Z. to involve violence and, as has been decided above, Mr. Zhou does notcounsel or agree to violence being used in the course of the detention. Mr. Zhou also does not envisage the movement of D. or Z.confined against their will. [55] It must be remembered that the critical issue with respect to the subject charges is what was in the mind or what was the intent ofMr. Zhou.

The detention of D. and Z. coupled with a request for money would not necessarily be a crime. [56] As Doherty J.A. points out at paragraph 83 of the case of R. v. Blake, (ON CA), 206 C.C.C. (3d) 233, the useof harsh tactics and hard bargaining to collect a debt is not necessarily extortion. To constitute the crime of extortion, those acts wouldhave to involve threats, accusations, menaces, or violence as set out in s. 346(1) of the Criminal Code.

To constitute the crime ofkidnapping, those acts would have to involve the movement of D. or Z. confined against their will. [57] To repeat, then, I am not satisfied beyond a reasonable doubt that Mr. Zhou intended to commit either the offence of kidnappingor the offence of extortion up to the point in the November 19th, 2009, meeting represented by line 1031 at page 25 of the transcript ofthe recording of that meeting. [58] The final issue to decide in this case, then, is whether the trial evidence proves beyond a reasonable doubt that Mr. Zhou's intentafter the above-noted time was to agree with Mr.

Yang to commit the crime of kidnapping or extortion and/or to counsel the undercoverpolice to commit either of those offences. [59] On this issue, the Crown submits that both charges in the Information are proved by Mr. Zhou's intent to have D. and Z. forciblyseized and moved to the United States. Such

an act would clearly amount to the crime of kidnapping and, because the act wouldinherently involve threats, menaces, or violence related to a demand to pay money, it would also amount to the crime of extortion. [60] The defence position in this area is that Mr. Zhou was not, in fact, agreeing to or counselling the kidnapping or extortion of D. orZ., but rather had become fearful of the undercover police and was playing along with plans suggested by them in an effort to extricatehimself from a situation where he had got in over his head. [61] The strength of the Crown's case in this area begins with Mr.

Zhou's comment at line 1100 of the November 19th, 2009,transcript as follows: Okay, the second question is, where do they want to keep the person after they grab them? Keep them in U.S. or Canada? At line 1112, Mr. Zhou says: Of course U.S. will be the safest place. At line 1138, Mr. Zhou says: Okay, where in U.S. do you want to keep them? [62] From the above-noted remarks and others made by Mr. Zhou, it appears on the surface at least that he is agreeing and perhapsdirecting that D. and Z. be kidnapped and taken to the United States. Mr.

Zhou gave extensive evidence in this trial to the effect that hehad no such intention. Mr. Zhou testified that he had become fearful of the men he knew as James and Jay and that his questions andcomments about taking people to the United States were an attempt to buy himself time to extricate himself from a situation that hadbecome out of control. [63] In this regard, Mr. Zhou testified as follows, "Because in order to deal with them, I had to find out about their plan. It's onlywhen I find out their plans that I could find a way to get out of this.

So they said, 'What do you think,' and I, of course, just play alongwith them." (Trial transcript, July 25th, 2011, page 30, line 39). [64] Mr. Zhou also gave evidence to the effect that on November 19th, 2009, he feared that James and Jay were about to commit aserious offence with which he did not want to be associated. Mr. Zhou testified that he tried to stall or frustrate their plan by raising newissues. [65] Mr. Zhou says things in the latter part of the November 19th, 2009, meeting that are consistent with his evidence about stalling.

At one point in the meeting, it appears that James and Jay are anxious to leave and, at line 1203 of the transcript, Mr. Zhou states: Talk a little more about that. One hour is not a big deal.

[ 66 ] At line 1279 of the transcript, Mr. Zhou raises a significant new issue about trying to collect from D. and Z. not only the money owed to himself, but also money owed to a friend of his named Lao Jiang. This matter is again mentioned by Mr. Zhou at line 1313 and line 1492. At line 1336, Mr. Zhou raises the issue of an interpreter being necessary to communicate with D. and Z. This was another new aspect of any possible plan to kidnap D. and Z. [ 67 ] In my opinion, it was not unreasonable for Mr. Zhou to be fearful of the men he knew as James and Jay.

It was a two-edged sword for the undercover police to portray themselves as tough criminals. On the one hand, that conduct could cause Mr. Zhou to hire them to commit an illegal act. On the other hand, such conduct might result in Mr. Zhou being fearful of the two men and saying things to them that were not the truth. [ 68 ] The statements made by S.C. and P.M. and their tone of voice and their general conduct was such that it was not unreasonable to result in Mr. Zhou being fearful of them.

Furthermore, it was the undercover officers that consistently raised the issue of violence towards D. and Z. in an apparent effort to get Mr. Zhou to agree to it. Mr. Zhou never did agree to it. [ 69 ] The final meeting between Mr. Zhou and the undercover police occurred on November 21st, 2009. Only Mr. Zhou, Mr. Yang, and S.C. were present at that meeting. The conversation that took place at the meeting was recorded by a device used by S.C..

The transcript of the conversation is at tab 3 of Trial Exhibit 13. [ 70 ] The scenario arranged by the police for this meeting was that S.C. would pretend that D. and Z. had been located and seized and were being held by P.M. Mr. Zhou was to speak on the telephone to D. and demand payment of the money owed to him. S.C. told Mr. Zhou that Z. had been badly hurt, but D. "not so much." [ 71 ] Throughout this meeting, Mr. Zhou declines to speak to D. until he is shown photographs of the captured people. Mr. Zhou also mentions several times that he wants to discuss things before anything further is done.

This meeting ends without any decision being made as to what is to be done with D. and Z. who are supposedly held by P.M. (Jay). [ 72 ] Any statements made by Mr. Zhou at the November 21st, 2009, meeting are in reaction to false information about D. and Z. being located, seized, and injured. Instead of making statements to the effect that James and Jay had done what he wanted, Mr. Zhou is very noncommittal and only wants to see photographs of the seized people before he proceeds further. In my opinion, the statements of Mr.

Zhou at the November 21st, 2009, meeting provide little evidence to advance the Crown case against him on either charge before the court. [ 73 ] Mr. Zhou was vigorously cross-examined by Crown counsel as to why he would attend the November 21st, 2009, meeting with James and Jay if he was so afraid of them. The essence of Mr. Zhou's answer to that question is as follows beginning at line 46 of page 37 of the trial transcript of July 27th, 2011: So after some analysis, so I thought maybe if I were to talk with them, maybe they would listen to me and, of course, this turn out to be just wishful thinking.

Secondly, if I just simply took off, I was concerned that it might bring trouble to Mr. Yang because they had spent so much money and they were not able to attain their goal. [ 74 ] In the circumstances that were occurring at the time, Mr. Zhou's explanation for attending the last meeting was not unreasonable in my opinion. Mr. Zhou's credibility as a witness is, of course, a central issue in this trial. Although Mr. Zhou testified through an interpreter, my impression of him was that he presented well as a witness.

He never looked like he had been caught in making a false statement. [ 75 ] He answered questions in examination in chief and in cross-examination promptly. When asked questions about critical issues in this trial, Mr. Zhou answered without delay. He gave no impression at all that he was trying to think of what he should say in his evidence as opposed to what was the truth. [ 76 ] The position of the Crown in this trial is that Mr. Zhou was a sophisticated businessman and was fully aware that he was hiring people to kidnap and extort D. and Z.

The position of the defence in this trial is that despite his business successes, Mr. Zhou is not a sophisticated person and, in fact, is somewhat naïve. [ 77 ] There is some support for the defence position respecting Mr. Zhou in that Mr. Zhou continued to lend money to Z. without any significant payments being made by her on previous loans. Objectively, it would appear that Mr. Zhou was unwise to continue to lend money to Z. without much chance of being repaid. If Mr.

Zhou is not the sophisticated person suggested by the Crown, his comments made to the undercover police officers can be viewed in a completely different light than that suggested by the Crown. [ 78 ] In the Crown's final submission, it was stressed that Mr. Zhou's evidence that on November 21st, 2009, he intended to leave Canada after he learned that D. and Z. had been seized cannot be accepted. It is submitted by the Crown that it made no sense for Mr. Zhou at that point to leave Canada right at the time when he could talk to Z. about the money she owed him. [ 79 ] On this issue, the defence submits that Mr.

Zhou was conflicted in his latter dealings with the undercover police. He wanted the money owed to him, but he did not want to be involved in any illegal acts. The defence submits that it did make sense for Mr. Zhou to wish to leave Canada to avoid being implicated in illegal acts that he did not intend or approve even if it meant abandoning his plans to speak to Z. about the money owed to him. [ 80 ] The defence position in this trial based on all of the trial evidence including, most importantly, the evidence of Mr. Zhou is that Mr. Zhou was very anxious to collect money owed to him by D. and Z. Mr.

Zhou was having great difficulty in locating D. and Z. and was willing to pay to James and Jay 20 percent of any money he recouped if D. and Z. could be located in order that Mr. Zhou could request or demand or negotiate full or part payment of monies owed to him. It is submitted that Mr. Zhou believed, perhaps naively, that D. and Z. would repay him some or all of the money owed to him just by being detained and asked for the money. This clear intent is demonstrated by Mr. Zhou's comment at line 989 of page 24 of tab 2 of Exhibit 13 as follows:

As long as you get the person, he will pay for sure. It does not appear that Mr. Zhou contemplated what might occur if D. or Z. refused to pay him the money requested. [ 81 ] The defence position in this case is that Mr. Zhou became very concerned about his situation when James and Jay indicated they were going to use violence towards D. and Z. It is argued that Mr. Zhou was conflicted. He wanted to recover the money owed to him, but he did not want to commit an illegal act. [ 82 ] Further, Mr.

Zhou's relationship with James and Jay had become very difficult because they had apparently spent a considerable sum of money for which they were going to want compensation. In addition, Mr. Zhou's friend, Mr. Yang, was caught in the middle of Mr. Zhou's dealings with James and Jay. [ 83 ] The main thrust of the defence in this case is that late in his dealings with James and Jay, Mr. Zhou had become fearful of them and believed that they planned to commit serious offences with which Mr. Zhou did not want to be associated. It is submitted that Mr.

Zhou was attempting to extricate himself from his relationship with James and Jay and, in the course of that effort, he "played along" with the illegal plans of James and Jay in order that he, Mr. Zhou, could buy time to determine how he could escape his difficult situation. If Mr. Zhou was and is a sophisticated man of the world, the defence submissions would be difficult to accept. However, if he was and is somewhat naïve, the defence position would have merit. [ 84 ] As I have noted above, it is my opinion that Mr. Zhou presented well as a witness.

He had a favourable demeanour and he answered all questions in a straightforward manner. The evidence he gave on the material issues in this case was quite convincing. In short, Mr. Zhou appeared to be a credible witness. [ 85 ] Mr. Zhou explained in his evidence any apparently incriminating recorded comments he made in a manner that made those comments not to be incriminating. I cannot and do not reject the defence position in this trial that Mr. Zhou was naïve in all of his dealings related to his attempts to collect money owed to him by D. and Z. If Mr.

Zhou was naïve in those dealings and I have a reasonable doubt that that was the case, it was not unreasonable for him to plan to detain D. and Z. and ask for his money and not contemplate what would be done if there was not an agreement to pay. [ 86 ] Given my assessment of the nature of Mr. Zhou, his evidence in this trial as to his intent as to how he hoped to recover money owed to him might reasonably be true. That being so, I have a reasonable doubt on the whole of the trial evidence that Mr.

Zhou intended directly or indirectly to commit either the offence of kidnapping or the offence of extortion in the course of trying to recover money owed to him by D. and Z. [ 87 ] Without that intent, Mr. Zhou could not conspire with Mr. Yang to commit the offence of kidnapping or the offence of extortion. Similarly, without that intent, Mr. Zhou could not counsel the undercover police to commit the offence of kidnapping or the offence of extortion. [ 88 ] The facts of this case are indeed unusual primarily because of my assessment of the unusual nature of Mr. Zhou.

For all of the reasons set out herein, I have a reasonable doubt as to the guilt of Mr. Zhou on both of the two charges in the Information before the court. I therefore find Mr. Zhou not guilty on each of those two charges. That completes the court's judgment in this matter. [REASONS FOR JUDGMENT CONCLUDED]