The Queen v. Chan Yam-shing

CACC001479/1983

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Silke, J.A. & Power, J.

Date: 10th April 1984

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JUDGMENT

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Silke, J.A.:

1. The applicant, CHAN Yam-shin; - "D1" - was tried and convicted of four counts on a five count indictment. He was tried jointly with CHAN Yam-wong - "D2"1. A third defendant, CHAN Chau - "D3" - was-tried alone upon the first count in that indictment.

2. The counts against the applicant alleged false imprisonment - count 2; assault occasioning actual bodily harm - count 3; attempting to pervert the course of public justice- count 4 and blackmail - count 5.

3. He now seeks leave to appeal against those convictions.

4. The incidents giving rise to the charges spanned the period between-the 4th and the 21st May 1983 and the main evidence was that of a Mr. NG Ying-sheung.

5. On the 4th May Mr. Ng was approached, while engaged in decoration work at the Kai Yip Estate, by one CHAU Wing. He was asked for the name of his boss and that man's address and telephone number. Mr. Ng did not give it. He was told that the decoration work on the estate was supposed to be done by CHAU Wing's "brothers". CHAU Wing appeared to be angry and told Mr. Ng "If you don't get your boss to come out and when you come back tomorrow you know the trouble (sic)".

6. Mr. Ng's boss did come to the site that afternoon and Mr. Ng told him of the conversation with CHAU Wing.

7. It would seem that the boss made a report to the police - for Mr. Ng did not - as, on the next day, the 5th May, two plainclothes policemen arrived at Mr. Ng's work place where they remained giving the appearance of taking part in the decoration work.

8. In the course of that morning CHAU Wing, with two others, returned. Mr. Ng identified D3 as one of the two. One of the policemen - the fat one - was pointed out by Mr. Ng as his boss. Mr. Ng then went on with his work.

9. The police evidence was that D3 directed a DPC 16283 - the "boss" - into the kitchen in the premises, CHAU Wing remaining outside. D3 told the constable that if he did not give back the decoration job he would have to pay "$1,000 to my brothers for their living". The constable refused to pay whereupon D3 said that he belonged to a triad society and threatened to damage the work already done and to drive away the workers unless the $1,000 was paid. D3 was then arrested as was CHAU Wing. They were subsequently charged with blackmail and released on bail.

10. On the 21st May Mr. Ng was working in Kwun Tong and finished his day at about 6 p.m. On his way home he was approached by CHAU Wing who placed a hand upon his shoulder and asked him if he recognized him. Which Mr. Ng did. CHAU Wing accused Mr. Ng of making a report to the police which caused his arrest. He was angry. Mr. Ng denied making such report.

11. A second man then appeared who asked CHAU Wing  "Is this the one?" and then a third man arrived on the scene. One of these two men was identified as D2 and he punched Mr. Ng once. Mr. Ng became frightened. CHAU Wing said that his brothers were waiting for Mr. Ng at a nearby restaurant and he was escorted by the three men to market place at Shui Wo Street. There was a van waiting there of which the applicant was the driver. Mr. Ng was told to get into the van which he did, sitting in the back with his three escorts.

12. The van went to a petrol station, filled up and then was driven to a lonely place called Devil's Hill. There all the men got out leaving Mr. Ng in the van. Then D2 hit him again accusing him of being "cheeky" and having made a report to the police.

13. The other persons present assaulted him, kicking him and hitting him with their fists. The applicant produced a knife and threatened to kill Mr.. Ng with it and to wrap him up in a- bag and throw him in the sea. There was a bag in the van. Mr. Ng was further assaulted, at times with an iron bar and a spanner which were taken from the back of 'the van. These assaults took place with Mr. Ng both inside and outside the van.

14. At one point Mr. Ng was asked, not by the applicant but in his presence, to what "group" he belonged. There was evidence that this question could be understood to mean to what triad society did he belong. He was further threatened with death the applicant saying "I specially like to kill informer".

15. At this point CHAU Fling offered to give Mr. Ng "a chance" if he would pay compensation. Mr. Ng was searched by CHAU Wing who found a witness summons or notice to attend court on him. This was handed by CHAU Wing to the applicant.

16. The applicant also offered Mr. Ng "a chance" and wanted payment of $100,000. When Mr. Ng said he did not have that money the applicant told him that he could write an I.O.U., One of the men made out a draft I.O.U. asked Mr. Ng to copy it which he did and, upon its being signed, it was handed to the applicant.

17. After this all the participants got into the van which was driven back towards Kwun Tong. On the way the applicant made Mr. Ng swear an oath, repeating it sentence by sentence after him. The oath was to the effect that "If I break my promise then a bright knife will get in and a red knife will come up and the wife, the son and your daughter will die (sic)".

18. The applicant told Mr. Ng to take the money to the New Moon Restaurant at 4 p.m. on the 23rd May and hand it to one KWOK Wan Chun.

19. The van was then driven to the Choi Wan Estate where the participants went into the estate itself and Mr. Ng was released.

20. Mr. Ng telephoned his employer informing him of that which had taken place but warning him not to make any report to the police.

21. On the 25th May, a report having been made to the police, but not by Mr. Ng, Mr. Ng was interviewed and as a result a police raid was carried out at 12, Lai Yue Mun Road where the applicant was arrested.

22. On the way to the police station the applicant, having attempted to negotiate with his police escort, struck one of them who fell. He was then chased for a few feet, fell against a lorry and was taken back into custody.

23. Upon his arrival at the police station he was searched and a photostat copy of the I.O.U. was found upon him.

24. The van to which we have referred was found outside the address of the applicant and it was searched. In it was found a beef knife about 18 inches long, wrapped in paper and in a plastic sheath, a pair of scissors, a water pipe, a piece of iron, two spanners and a large piece of nylon cloth.

25. On the 24th May Mr. Ng was medically examined at the Casualty Department of the United Christian Hospital. He had bruising under his left eye and bruising over the front of his chest.

26. On the 31st May Mr. Ng attended an identity parade at Ngautaukok Police Station and identified the applicant.

27. The applicant gave evidence and his defence was one of innocent involvement. He accepted that he drove the van to Devil's Hill and that there an assault was carried out on Mr. Ng. But he says he knew nothing of the intention of the parties, simply doing a kindness for acquaintances, who included Mr. Ng, in providing them with transport to their homes. Devil's Hill was near the home of CHAD Wing. He protested when he saw Mr. Ng being assaulted and said that he informed the group that he would tell the police whereupon the assaults ceased. He explained the copy of I.O.U. found on him by saying that CHAU Wing asked him, under threat, to go and get the money but that he did nothing about it. He explained the finding of the knife and the other items in his van by saying that they were the tools of his trade or that they were used by his son to stir a barbecue stove. He alleged himself, in answer to his own Counsel, to be a man of good character apart from some convictions for possession of firecrackers.

28. Mr. Huggins, who appears for the applicant at the hearing of this appeal, argued five grounds of which we thought three to have some substance.

29. One of these can be disposed of at the-outset: it involves a misstatement of fact by Course then appearing for the Crown in the course of his closing address at trial.

30. Counsel suggested to the jury that it was the applicant who had asked at Devil's Hill the question of Mr. Ng as to what group he came from. This was a factual error and it does not appear to have been picked up either by the trial judge or Counsel for it was not corrected.

31. It is Mr. Huggins' submission that the person who gave evidence to the effect that such a question related to triad affiliation was not such as could give "expert" evidence and that this, combined with the wrong attribution of the remark to the applicant was prejudicial.

32. He accepts however that, of itself, this ground is not sufficient to vitiate the conviction. We agree. We also doubt if any real prejudice was done to the applicant by Counsel's slip.. The incidents described are so overlaid with triad connotations that this remark and its attribution to the applicant were but minor straws in the general triad wind.

33. The second ground was that the conviction on the charge of blackmail (count 5) was unsafe and unsatisfactory in that the trial judge failed to direct the jury that they had to find that any menaces which they believed were offered by the applicant were intended by him to relate to and support the alleged demand for $100,000 and not to other and quite distinct matters.

34. Mr. Huggins, having directed our attention to the definition of blackmail in section 23 of the Theft Ordinance, submits that to ground the charge the menaces must relate directly back to the unwarranted demand and it is not that which, in this instance, Mr. Ng thought was intended but that which the applicant did intend which mattered.

35. The demand for $100,000 was clearly an unwarranted one. The menaces were a11 pervasive. While the oath forced out of Mr. Ng in the van on the journey back from Devil's Hill came after the demand for compensation by both CHAU Wing and the applicant it is, we think, indicative of the situation which obtained at Devil's Hill. Mr. Ng was threatened with death and then given a "chance" to avoid this fate by the payment of compensation. The threat was both as to immediate and as to future violence if the money was not paid up. For Counsel for the Crown to say to the jury "In this case the menaces were even more factual because they were actual violence" - a submission criticised by Mr. Huggins as being wrong in law as the getting of property by use of force is robbery not blackmail - is to in reality state the evidence which the jury had heard, to state it possibly in a foreshorten version, but that is a11.

36. The failure of the trial judge to give an express direction in the terms Mr. Huggins says he should is, in the circumstances here, understandable. It would have been a difficult, if not an impossible, task for the judge to separate the multiplicity of menaces and apportion them each to separate intentions - not that Mr. Huggins suggests that he should. They were inextricably interwoven one with the other and the directions which were given on the issue of blackmail were, in our judgment, adequate.

37. The major point in this appeal does give cause for concern. It is this: in the course of his cross-examination of the applicant, whom it will be remembered had himself placed his character in issue, Counsel suggested to him that he was the person attempting to control all the decoration work in Kai Yip Estate, that he, the applicant, had attempted to suggest that he was CHAU Wing's "Ma Chai" or follower when the reverse was the case and, positively, that the applicant was an office bearer in the Sun Yee On Triad Society being a 426 Red Pole.

38. It is Mr. Huggins' complaint that these suggestions went further than the evidence in the case suggested, that they went far beyond any permissible attack on credibility and that, far from being such an attack, they were being used by the Crown to prove their case. Further that coming from the Bar as they did the jury might well have thought there to have been substance in them and to be influenced thereby.

39. The passage to which particular exception is taken runs as follows, an admission having been obtained that the applicant sometimes engaged in decoration business:

"Q.	Yes, in fact isn't it the situation that you had attempted to control absolutely all the decoration work or re-decoration work that is done in a large housing estate in Kowloon known as Ka Yip Estate?
A.	No such thing.
Q.	I see. You have heard of the Sun Yee On Triad Society? You have heard of it?
A.	No.
Q.	Come on, I will give you a chance to answer that question. Are you telling :us that you have never heard of the Sun Yee-On Triad Society? .I am not suggesting you are a member.
A.	I have heard."

40. Had Counsel stopped there there could be little complaint but he went on:

41. The permissible limits in cross-examination by the Prosecutor in criminal trials must not be transcended. If they are then the trial judge should stop Counsel and should either then. or later give the appropriate direction to the jury.

42. It is again Mr. Huggins' complaint that neither course was followed here. And his complaint, he says, has added strength in the light of the reliance placed upon the passage just quoted by Counsel in his closing address. That passage went thus:

"....... His demeanour in giving evidence was important. It was a rehearsed performance - a very strong-minded man, the sort of man who would brook no interference. I suggested to him that he was an office bearer of a triad society and he rejected that.

Throughout the evidence that he gave he tried to paint the picture that CHAD Wing, the man who is conveniently not here in court so he can say what he likes of him, CHAU Wing was the villain, CHAU Wing was the instigator. He tried to give the impression that he was the ma chai, the follower of CHAU Wing, the small potato, if you like, to use the vernacular, but really I suggest it's the other way around. That man is the leader; that man is the man of strength."

43. The latter portion of the address which we have quoted, and indeed some of the questions asked in cross-examination, do go a little far. For it was clear from the Crown's own evidence that CHAU Wing was, if not the instigator, then the prime mover; it was always the case for the defence that the applicant was innocently involved. But it could be attributed to enthusiastic advocacy. The point of the greatest complaint was the specific question put to the applicant to the effect that he was a 426 Red Pole office bearer of the Sun Yee On.

44. The trial judge gave no specific directions on this issue. He did give general directions which, it is said, do not go far enough even if they were capable of curing the prejudice.

45. The jury were told that they were at liberty to disregard any comments Counsel might make. They were told they were the sole judges of the facts. They were told that they must base their decision upon the evidence. They were told that suggestions put to witnesses while they were in the box and not accepted by them were not evidence.

46. The summing-up then continued:

"          For instance, it was suggested that the 1st accused was a triad society officer. The 1st accused did not accept that. So that's simply not in evidence."

47. Then:

"          As I say, if they have invited you to speculate or suggest (sic) how things occurred, well, you can take those suggestions into consideration. But you,don't have to, for what they have said like that is simply not evidence."

48. We think that while there was no direct warning that the jury must put out of their minds that which was not in evidence, in particular the triad society matter, and while, by itself,that last quotation could be confusing, the jury were sufficiently directed upon the issue.

49. But does it cure if cure be necessary?

50. In Fox v. General Medical Council⁽¹⁾ Lord Radcliffe, in giving the opinion. of the Board, set out that which we think, with respect, to be the correct position as to questions which may be put by Counsel in cross-examination.

51. He said this:

"Points were raised on behalf of the appellant which were said to involve breaches of the Disciplinary Committee rules of procedure, or otherwise to amount to misconduct of the proceedings. The second point made was that, though the letters left by Mrs. Thomas had been excluded on the advice of the legal assessor" (the original hearing had been before the Disciplinary Committee of the General Medical Council and the "rules" referred to were their rules) "material obtained from them was used in the cross-examination of the appellant. Even if it was, there is nothing necessarily improper in that. An advocate is entitled to use his discretion as to whether to put questions in the course of cross-examination which are based on material which he is not in a position to prove directly. The penalty is that, if he gets a denial or some answer that does not suit him, the answer stands against him for what it is worth."

52. Lord Radcliffe then referred to the actual question asked - and it was but one - and the immediate intervention by the legal assessor and he expressed the opinion that there was nothing in the point.

53. We accept that Lord Radcliffe was not considering the effect of a question in the course of a criminal jury trial. Such question and its answer can go only to credibility and it is Mr. Huggins' point that the question asked, coming from the Bar as it did, could well support the credibility of Mr. Ng and diminish that of the applicant.

54. We have been referred to Appendix C to the 41st Edition of Archbold (p. 2137) which sets out extracts from the code of conduct for the Bar of England and Wales, and in particular to item 139 under the heading "CONDUCT AT COURT".

55. This reads:

"139 (a) Questions which affect the credibility of a witness by attacking his character, but which are otherwise not relevant to the actual inquiry, may not be put in cross-examination unless  there are reasonable grounds to support the imputation conveyed by the questions."

56. The Court was told by Mr. McNamara, who appears upon the hearing of this Appeal, and we accept this without reservation, that Counsel at trial felt he had such reasonable grounds in this instant case.

57. Nevertheless two of us think Counsel to have gone too far when, having said he was not suggesting that the applicant was a member of the Sun Yee On, he immediately thereafter went on to suggest, explicitly, that he was an office bearer of that illegal organisation thereby imputing the commission of a criminal offence to the applicant.

58. The trial judge, in directing the jury, was left in an unfortunate dilemma. Having told them that the suggestion was simply not evidence, he was precluded from going on to tell that even if the applicant had admitted himself to be an office bearer such admission could go only to credibility and not to the proof of the case for the prosecution. It was unfortunate that the direction the judge did give was not coupled with an express warning that the jury should cast the suggestion completely from their minds when considering their verdict.

59. In R. v. France and France⁽²⁾, the defence involved an attack upon the police. The Crown was permitted, F's record having been introduced in examination-in-chief, to cross-examine him as to the facts of one of those offences which facts bore a strong similarity to those of the offences for which he was being tried. A co-accused, MF, supported in evidence F's attack upon the police and she, in turn, was cross-examined upon her joint conviction with F of that particular offence. The Crown did not seek to suggest that the evidence was admissible as similar fact evidence. The English Court of Appeal held that the questions in cross-examination should have been excluded by the trial judge and that they went beyond the bounds of legitimate cross-examination as to credibility. It refused to apply the proviso, though the case for the prosecution was very strong, as it could not say that the evidence elicited might not have influenced the jury unduly.

60. France and France ⁽²⁾ can, however, be distinguished from this instant case. That was a much stronger case. The question here went further than was proper but, it was a single question - the rest of the complained of portion of the cross-examination was suggestive of the case for the Crown. It received a negative answer and was not evidence in the sense that the questions in France and France⁽²⁾ were. The jury were told this, albeit not in as strong terms as they should have been. From the rest of the evidence, and not simply that of Mr. Hg, it was fully open to the jury to find an all pervasive triad background including in it the applicant.

61. In our judgment the jury here would not have been unduly influenced by the mere asking of the question though the question came from the Prosecutor who might be thought to have more background information than was directly available to the jury.

62. We do not think any miscarriage of justice to have occurred and would apply the proviso.

63. One of us feels that, bearing in mind the nature of the trial, the evidence before the Court, and the questions asked, and accepting the correctness of the observations of Lord Radcliffe in Fox v. The General Medical Council⁽¹⁾, to which reference has been made, Crown Counsel did not go too far in his questions and would not therefore consider it necessary to apply the proviso.

64. In the event we grant the application for leave to appeal, treat the hearing as the appeal and dismiss the appeal.

(1) [1960] 1 W.L.R. 1017 at page 1023

(2) (1979) Cri. L. Rev. 48

Representation:

A. Huggins, Esq. instructed by Messrs. Laurence Pang & Co. for applicant.

J.P. McNamara, Esq. for Crown/Respondent.