HKSAR v. Lam Wai Leung

CACC000207/2000

CACC 207/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 207 OF 2000

(On appeal from DCCC No 131 of 2000)

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Coram: Hon Stuart-Moore VP, Woo and Stock JJA in Court

Date of hearing: 3 April 2001

Date of handing down reasons for judgment: 10 April 2001

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REASONS FOR JUDGMENT

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Hon Woo JA (giving the reasons for judgment of the Court):

1. This was an application for leave to appeal against both conviction and sentence. After dealing with issues relating to conviction, Mr Alan Hoo SC, for the applicant, informed us that the application as to sentence was abandoned. It was accordingly dismissed. At the conclusion of the hearing on 3 April 2001, we dismissed the application regarding conviction and informed the parties that we should hand down our reasons. They appear below.

Background

2. The applicant was the D4 in a trial together with four other defendants before District Judge Muttrie in the District Court. They all faced a charge of blackmail, contrary to s 23(1) and (3) of the Theft Ordinance, Cap 210; only D2 was further charged with another offence of claiming to be a member of a triad society.

3. The particulars of the blackmail charge were that all five defendants, on 3 September 1999, at Lok Hau Fook Restaurant, Ground Floor, Nos 1-3 Hau Wong Road, Kowloon City, Kowloon, with a view to gain for themselves or another or with intent to cause loss to another, made an unwarranted demand of $5,400 from Sie Oi-ling with menaces.

4. After trial, all five defendants were convicted of the blackmail charge and D2 was also convicted of the triad charge. All the defendants were sentenced to a term of 3 years' imprisonment for the blackmail, and D2 was sentenced to another term of 3 years for his triad offence, but his sentences were ordered to run concurrently. In other words, all the defendants were to serve 3 years' imprisonment. D4 sought leave to appeal against conviction, while abandoning his application for leave to appeal against sentence.

5. The evidence before the Judge showed that in the evening of 2 September and early morning of 3 September 1999, a filming crew was shooting a movie inside the Lok Hau Fook Restaurant. At about 3:45 am, a group of people came into the restaurant and demanded "Lo Mo" which meant "Lai See" or lucky money. D2 mentioned that he was No 14, meaning the 14K triad society. It was said by someone in the group that if money was not paid, the crew could not film there. D2 also broke the crockery inside the restaurant when the demand was not met. Eventually one of those people mentioned the sum of $5,400 that was to be paid. When the police were approaching, the group started to walk slowly away from the restaurant and they were intercepted by the police.

Grounds of appeal

6. Five grounds of appeal are raised in the Amended Perfected Grounds of Appeal against conviction, as follows:

(1) In relation to paragraphs 11 and 13 of the Admitted Facts dated 15 May 2000:

(a) the solicitor acting for D4, Mr J N Midgley, had no proper authority to admit those facts;

(b) he should not have admitted those facts on behalf of D4; and

(c) he did not afford D4 the opportunity to understand the nature and consequence of those facts.

(2) The Judge was wrong in convicting D4 on those admitted facts even though they were not supported by the viva voce evidence of the prosecution witnesses.

(3) The Judge failed to give a full identification warning in that

(a) he failed to show that he was mindful of the principles in R v Turnbull [1977] 1 QB 224; and

(b) he failed to warn himself that though PW4 Law Wing-cheong was reminded that he had identified D4 in an identification parade, PW4 failed to identify D4 in court.

(4) The Judge erred in holding that mere presence in the circumstances of this case gave rise to an irresistible inference of complicity or the only irresistible inference was that D4 was part of the blackmail gang rather than an innocent bystander.

(5) The only clear and certain evidence was that D4 was stopped by the Police in the vicinity of the restaurant.

The admitted facts

7. The admitted facts referred to in grounds 1 and 2 were contained in a statement of Admitted Facts dated 15 May 2000 signed by the prosecuting counsel Ms Winsome Chan, Mr Freddy Woon (counsel for D2 and D3) and Mr Midgley for D1, D4 and D5, pursuant to s 65C of the Criminal Procedure Ordinance, Cap 221 for the purpose of the trial. Paragraphs 11 and 13 that are the subject matter of complaint appeared under the heading of "Identification". They read as follows:

"11. After D1 - D5 were intercepted outside No. 11 Hau Wong Road, in the presence of WPC 56105 (PW12), PW1 identified D1 - D5 as the gang of people who had earlier on demanded a 'Lo Mo' from her.

...

13. At an identification parade presided by PW15 on 5.10.99, D2 was identified by PW2, PW3, PW4 and PW5 as being the person who claimed to be 'Sai B' of 'No. 14' during the incident on 3.9.99. At the same identification parade, PW3 identified D4 as being one of the males involved in extorting money on 3.9.99."

8. Section 65C(1) of the Criminal Procedure Ordinance provides:

"Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall be as against that party be conclusive evidence in those proceedings of the fact admitted."

9. Mr Hoo submitted that any admission under s 65C is conclusive irrespective of what the witnesses would say in court. It follows that any admission under the section should only be made when the facts to be admitted are absolutely certain in view of the evidence. He argued that the facts set out in paragraphs 11 and 13 of the Admitted Facts should not have been admitted in view of the circumstances of this case, and they had been admitted by Mr Midgley without proper authority from D4. That argument was based on the affirmation evidence of D4 filed for the purpose of this application, which stated that the contents of the Admitted Facts and the effect of making admission of facts were never explained to him by Mr Kao Chung Wah, who was the interpreter of the solicitors firm in which Mr Midgley was a senior partner and who assisted Midgley in the handling of the trial and the preparation of it on behalf of D4 and two other defendants, D1 and D5.

10. At the outset, it has to be said that where facts have been admitted under s 65C, it will be unnecessary for those facts to be proved by viva voce or other evidence before the court, because those admitted facts are treated as conclusive against the party making admission. In this case, as both the prosecution and defence made admission of the facts set out in the Admitted Facts, which were submitted to the Judge, all parties to the trial could not deny the facts so admitted. One of the purposes of admitting facts is to reduce the dispute as to facts between the parties so that they can concentrate on the facts in dispute and this can also reduce the length of the trial, which benefits the defence in saving time and legal costs that would otherwise have to be incurred and also benefits the court and the public purse in saving time and resources. Therefore, even if there was little evidence at the trial directed at the circumstances surrounding the identification of D4 by those witnesses as referred to in paragraphs 11 and 13, it would be a matter of no consequence. The Judge was fully justified to rely on the facts as admitted, ie, that D4 was identified by PW1 Ms Sie Oi-ling after he had been intercepted by the police and also by Mr Law Wing-cheong (who was PW3 referred to in paragraph 13 of the Admitted facts but was PW4 when he gave evidence at the trial) at the identification parade held on 5 October 1999.

11. It is clear from the affidavits made by Mr Midgley, the contents of which Mr Hoo made clear to us that he did not dispute, that D4's instructions to Mr Midgley were that he was intercepted by the police in the small hours of 3 September 1999 and thereafter he was identified by PW1 at the scene and that he was also identified by PW4 at the identification parade on 5 October 1999. D4's defence was that although he was present at the scene where the blackmail took place, he was a mere bystander and the blackmail had nothing to do with him.

12. When Mr Kao gave oral evidence before us, he said that D4 did not tell him that he had been identified by PW1 at the scene. But Mr Kao maintained that he had explained the contents of the Admitted Facts to all of the 3 defendants represented by his firm, and each of them agreed. He had explained the contents of the witness statements of the prosecution witnesses to the 3 defendants at conferences before the trial. He also explained to them the advice of Mr Midgley that the admission would dispense with the prosecution calling the woman police constable (PW12 on the back of the indictment) and the officer in charge of the identification parade.

13. What Mr Hoo seemed to complain about is that without the admission of the facts set out in paragraphs 11 and 13 of the Admitted Facts, there would have been insufficient evidence to support the conviction. No witness at the trial was able to tell what D4 had said or done in the restaurant. What is clear, Mr Hoo submitted, from the evidence was that D4 was one of the five persons intercepted by the police in the vicinity outside the restaurant. He directed our attention to the statement of PW12 the woman police constable, in whose presence, according to paragraph 11 of the Admitted Facts, PW1 identified all 5 defendants as the gang of people who had earlier on demanded a "Lo Mo" from her. That statement stated that upon arrival at the restaurant, PW12 saw people making a film and saw a gang of people leaving. She and her colleagues stopped these people and they were the 5 defendants. She then went inside the restaurant and enquired of PW1 as to what had happened. PW1 told her the extortion events. PW12 then asked PW1 if she could recognise the group of people involved. PW1 responded in the positive. When asked where those people were, PW1 said that they were the gang stopped by the police. PW12 then asked PW1 to go out to see if that was the gang of people. PW1 said: "I am very frightened, I am not going out."

14. When PW1 testified at the trial, she did not identify D4 in court; nor had she done so at any identification parade. PW1 also did not give evidence as to the presence of D4 at the scene, although she described that 5 persons had come into the restaurant and the acts and utterances of 2 or 3 of those people. PW1's testimony was that she was not sure whether there were 4 or 5 persons stopped by the police. Based on this testimony of PW1 and the portion of PW12's statement referred to above, Mr Hoo submitted that it was wrong for Mr Midgley to have admitted the facts stated in paragraph 11 of the Admitted Facts.

15. PW12 was not called to give evidence at the trial. That, according to Mr Midgley, was one of the reasons for his advice to admit paragraph 11, so that nothing more damaging would come from the mouth of PW12.

16. Detective Senior Inspector Chow King-sing, the officer in charge of the case, made an affirmation exhibiting the statement to the police made by PW1, the 3 statements to the police made by PW4 and a statement made by the Chief Inspector in charge of the identification parade at which PW4 identified D4. The Chief Inspector was not called to give evidence at the trial, because of the admission in paragraph 13 of the Admitted Facts.

17. In PW1's statement made on 3 September 1999, starting at 5:25 am, she described the incident in some detail. She then said that when the police were approaching, the gang of people dispersed and walked away slowly. When those people had walked about 10 feet away from her, she saw uniformed police officers intercept the 5 arrested persons, she immediately went forward and pointed out to the police confirming that those intercepted were those who had come to extort money from her earlier. This did not exactly tally with the portion of PW12's statement referred to above. If both witnesses were queried about this apparent discrepancy, no doubt certain clarification would have been made. However, it does not alter the fact that PW1 did say, in her statement as well as in her testimony, that the people intercepted by the police were those who had come into the restaurant and demanded extortion money from her. Paragraph 11 merely states that fact, and does not mean that those identified by PW1 to the police did in fact demand the extortion money. It may well have been that D4 did not say in his instructions to Mr Kao and Mr Midgley that he was identified by PW1 after he had been intercepted by the police close to the scene. But, we accept the evidence of Mr Kao that the witness statements had been explained and discussed in conference before trial, and D4 knew that PW1 in her statement said that she pointed out to the police that those intercepted were those who had come into the restaurant to extort money and that D4 agreed to admit this fact. Mr Midgley had been provided with the statements of witnesses before the trial. No doubt, he had considered these witness statements before he decided to make admission as to facts. We do not see how he could be justifiably criticised in view of what was said in the statements and the instructions of his client D4. Moreover, PW1's testimony at the trial was that upon the arrival of the police, the group of people spread and was surrounded by the police. She was not sure as to the number of people so surrounded. She could only say that there were 4 or 5 people. The police asked whether they were the people who had asked her for "tor tei", ie, local bully money, and she said yes. It would be too much to ask of Mr Midgley, or indeed any counsel, in the circumstances to expect that he could get something to the benefit of D4 by not making the admission. This admission does not effect the defence of D4 that he instructed Mr Midgley to pursue which was that his presence at the scene was merely as a bystander, watching film-making. It must be emphasised that the admission made relates only to the act of identification and that the question as to what those identified had done was a matter for oral testimony.

18. Regarding paragraph 13 of the Admitted Facts, PW4 did in fact make a positive identification of D4 at the identification parade held on 5 October 1999. Both the identification book and the statement of the officer in charge of the parade bear that out. Again, paragraph 13 merely admits the act of identification and the accompanying words are admitted as part of that act or explanatory of it. Insofar as it is said that, even so, he was not identified as "being involved", although it does not appear from those two documents very clearly what part was played by D4 for which he was identified, it is reasonably clear that before the identification took place the officer had told PW4 and D4 about the brief facts of the case and explained to them the purpose of the parade. In PW4's witness statement made on 3 September 1999, he briefly described the events of 5 people entering the restaurant, the claiming of being No 14, the breaking of crockery and the demand of money. In his 5 October 1999 witness statement made soon after the conclusion of the identification parade, PW4 said he identified the person at position No 5 (ie, D4) as one of those 5 people in his former statement. PW4 could not recall what he did but he took part in the blackmail and collection of protection fee. At the trial, when PW4 testified, he said that this man whom he identified at the parade on 5 October 1999 was present together with the other males who came into the restaurant. PW4 did not remember what D4 did or said during the incident. He could not be sure if he was able to see clearly the face of D4. He was not sure for how long D4 had stayed in the restaurant during the incident.

19. Again, it is beyond doubt that Mr Midgley acted properly in admitting paragraph 13 of the Admitted Facts on behalf of D4, based on the material that was available to him before trial. Similar to PW1's case, what PW4 said and what he identified D4 for were PW4's own allegations or evidence to which he would testify in court. The admission did not amount to an admission that D4 took part in the blackmail or in any way contrary to his instructions to Mr Midgley. D4 knew that he was identified by two persons, PW1 at the scene and PW4 at the identification parade on 5 October 1999. The admissions in paragraphs 11 and 13 were in accordance with his understanding of what would be the prosecution evidence. It would not be reasonable at all to expect Mr Midgley to refuse to admit those facts stated in paragraphs 11 and 13, with the result of lengthening the trial and increasing the legal costs to be incurred, while unnecessarily clouding the issues and relinquishing his assistance to the court. In addition, these were sound and proper tactical reasons for the course he took. In our judgment, Mr Midgley acted professionally and with entire propriety in agreeing to the Admitted Facts on behalf of D4. Before us, Mr Hoo accepted in no uncertain terms that that was so. It is unfortunate that the serious and groundless allegations against Mr Midgley were not withdrawn before the hearing of this application.

20. D4 in his affirmations complains that Mr Midgley and Mr Kao had not explained to him what facts they were going to admit on his behalf, or the nature and effect of admitting facts. Mr Midgley and Mr Kao denied this and Mr Kao in the witness box told us that all these had been explained to D4. D4 was tendered by Mr Hoo for cross-examination by Mr Blanchflower, for the respondent. D4 was questioned as to whether the Admitted Facts were read out and interpreted to the defendants (in his presence) before evidence was called at the trial. This fact was recorded, as shown in the transcript of the trial proceedings. D4 said that he could not recall. On this and other questions relating to his knowledge of the contents of the Admitted Facts, such as a clear reference to the admitted facts now challenged in Mr Midgley's submission on his behalf of no case to answer, D4's answers were invariably "I cannot recall". Yet he maintained that Mr Kao did not explain the Admitted Facts to him, let alone obtaining his consent, and that the first time he ever heard about the admissions was when the Judge delivered the Reasons for Verdict. Of course, these allegations of absence of knowledge of the Admitted Facts were made in support of his ground that he had given no authority to his lawyer to admit facts. We felt that he was a most evasive witness unworthy of any credence, and further, his admitted conduct after he discovered the supposed unauthorised admissions was wholly inconsistent with his allegations. We rejected his evidence, both on affirmation and in the witness box before us. In his affirmation, D4 seemed to say that the Admitted Facts were never read out in court, or that even if the contents were translated to him by the court interpreter, the court interpreter was speaking in a soft voice and he could not hear. Strangely, when the Reasons for Verdict were given by the Judge and translated by the court interpreter, he could hear that his lawyer had on his behalf admitted the facts now challenged. We do not accept D4's evidence.

21. The Judge did not err in relying on the admitted facts in convicting D4. It was most proper for him to consider the admitted facts in his evaluation of the evidence and indeed he was bound to do so. By reason of the fact of D4's presence being admitted, it was not necessary for the Judge to see to it that there was viva voce evidence in support of this fact, or he would have rendered futile one of the purposes of making an admission of a fact pursuant to s 65C of the Criminal Procedure Ordinance.

22. In his submissions to us, Mr Hoo clarified his complaint in ground 2, which is that the Judge took paragraphs 11 and 13 of the Admitted Facts as evidence of D4's involvement in the offence. That, in our view, is not a matter open for argument in the light of what went before the Judge during Mr Midgley's submission of no case to answer on behalf of D4. The point was made very clear to the Judge that the admitted facts were not evidence of involvement but evidence of identification. The Judge responded by making reference to the viva voce evidence of PW1 and PW4 that D4 was in the group extorting money and that he was together with the group who entered the restaurant. Moreover, in his Reasons for Verdict, which will be more specifically referred to below under the heading of "Inference of complicity", the Judge was considering the question whether the mere presence of D4 in the restaurant with the group of people, without any evidence of what he did or said, would enable an irresistible inference of complicity to be drawn. This discussion in the Reasons clearly demonstrates that the Judge did not take the admitted facts as evidence of involvement of D4.

23. Grounds 1 and 2 fail.

Identification

24. Ground 3 criticises the Judge on two limbs, (a) for failing to show that he was mindful of the principles in R v Turnbull and (b) for failing to warn himself that though PW4 was reminded that he had identified D4 in the identification parade PW4 failed to identify D4 in court.

25. There is absolutely nothing in the (a) limb. The Turnbull principles to take particular care as to identification evidence are not necessary to be recited every time as a ritual when a court considers the issue. The court must direct its mind to the circumstances surrounding the defendant's identification. Where a defendant's presence at the scene of crime is admitted, but his participation in the crime is disputed, a Turnbull direction is not always required. In R v Slater [1995] 1 Cr App R 584, Rose LJ delivering the judgment of the Court of Appeal said at p 589A-C:

"Where, however, there is no issue as to the defendant's presence at or near the scene of the offence, but the issue is as to what he was doing, it does not automatically follow, in the judgment of this Court, that a Turnbull direction must be given. Whether such a direction is necessary will depend on the circumstances of the particular case."

Later, at p 590B-D, the Lord Justice said:

"Furthermore, it would, as it seems to us, be contrary to common sense to require a Turnbull direction in all cases where presence is admitted but conduct disputed. ... in our judgment, the possibility of mistake is a necessary prerequisite for an identification issue to arise such as to require a Turnbull direction."

26. In the present case, since there were admitted facts that D4 was identified by PW1 as amongst the gang who had earlier demanded extortion money from her and that he was also identified by PW4 as one of the persons involved in extorting money during the incident, and the only issue being whether D4 was a party to the blackmail or an innocent bystander, it was, in our view, not necessary for the Judge to give a full Turnbull direction.

27. The Judge was fully aware of the issue of identification regarding all the defendants, including D4, before him. This is apparent from what he stated in his reasons for verdict:

"I have to remind myself particularly with regard to D4, but also with regard to the other defendants, of the danger of convicting in reliance on identification evidence because of the possibility of mistake."

28. It is also plain that he considered the identification evidence very carefully and he had in mind the issue of correct identification and addressed it properly. He went on:

"I note that all the defendants were identified soon after the incident by PW1 as having taken part in the incident. This is a matter of admission, as is the subsequent identification of the defendants by the various witnesses on 27 September and 5 October 1999. This was reasonably soon after the incident. I note that the circumstances of the observation of the defendants by the witnesses at the scene was good. The lighting was bright. The incident though at times chaotic, went on for long enough for the witnesses to get a good view of the various members of the group."

29. It is true that on limb (b) of this ground that the Judge did not mention that PW4 was not sure that he could identify D4 in court. However, it is unnecessary for the Judge to mention every piece of evidence before him in his reasons for verdict. It is clear from the passage cited above that the Judge was satisfied with the quality of the identifications by the civilian witnesses of the defendants, including D4, which were made soon enough after the event. The trial in which the witnesses gave viva voce evidence took place in May 2000, over 8 months after the incident. It is not unreasonable for PW4 to become unsure of his ability to recognise D4 at that time. Indeed, the value of a dock identification cannot be rated higher than one that had been made at an identification parade that took place soon after the event. In our view, PW4's statement in court that he was not sure that he was able to recognise D4 reflects his frankness and the reliability of his identification of D4 at the parade held on 5 October 1999.

30. Mr Hoo also prayed in aid the facts that in the evidence of PW1and PW4, specific mention was made of the features of each member of the gang and what they did or said, but with the exception of D4, that the identification by PW1 of D4 was that he was just in the group extorting money, that the identification by PW4 of D4 was that D4 was just present with the others who came into the restaurant, and that neither PW1 nor PW4 was able to identify D4 in court. The admitted identifications in paragraphs 11 and 13 of the Admitted Facts in the circumstances, so it was contended, should not be sufficient to enhance the lack of identification in court by the two witnesses. We do not agree.

31. In R v Christie [1914] AC 545 and R v Osborne [1973] 1 QB 678, it was held that the identification by witness out of court was admissible. In Osborne, the defendants were charged with taking part in a robbery. At the trial that took place seven and a half months after the event, one women witness said that she could not remember having picked out anyone at an identification parade and the other woman witness first said that she thought one of the defendants to be a man she had picked out at a parade, and then said that she did not think that that man was in court. The police inspector in charge of and present at the parades was called and asked whom the two women had picked out at the parades. At p 690 of the report, Lawton LJ, delivering the judgment of the Court of Appeal, said:

"We do not agree that Chief Inspector Stevenson's evidence contradicted their (the women witnesses') evidence. All that Mrs Brookes had said was that she did not remember, and, as I have already indicated, that is very understandable after a delay of seven and a half months. She had, however, done something. Within four days of the robbery she had attended an identification parade. She had been told in the presence and hearing of the defendant Osborne, as is the usual practice, what she was to do, namely, point out anybody whom she had seen at the time of the raid. She did point somebody out and it was the defendant Osborne. One asks oneself as a matter of commonsense why, when a witness has forgotten what she did, evidence should not be given by another witness with a better memory to establish what, in fact, she did when the events were fresh in her mind. Much the same situation arises with regard to Mrs Head. She said in the witness box that she had picked somebody out. She did not think that the man she had picked out was in court, but that again is understandable because appearances can change after seven and a half months, and if the experience of this court is anything to go by, accused persons often look much smarter in the dock than they do when they are first arrested. This court can see no reason at all in principle why evidence of that kind should not be admitted.

It was submitted that the admission of that evidence was contrary to a decision of the House of Lords in Rex v Christie [1914] A.C. 545. That case has long been regarded as a difficult one to understand because the speeches of their Lordships were not directed to the same points, but this can be got from the speeches: that evidence of identification other than identification in the witness box is admissible. All that the prosecution were seeking to do was to establish the fact of identification at the identification parades held on November 20. this court can see no reason why that evidence should not have been admitted."

32. Similar to Osborne, the trial in this case took place in May 2000, over 8 months after the blackmail had taken place. It was entirely reasonable and acceptable that PW1 and PW4 were able to identify D4 at times not long after the event but were unable to identify D4 in court, especially where D4 did not seem to possess any easily appreciable or describable features. This has to be compared with the easily recognisable features of the other defendants, such as a crew cut dyed-silver hairstyle and a harelip. PW12 to whom PW1 identified D4 and the Chief Inspector who conducted the identification parade at which PW4 picked out D4 were not called because of the admissions in paragraphs 11 and 13 of the Admitted Facts. These admissions were tantamount to those two police officers giving evidence in court of the identifications, and there was nothing to indicate that these identifications were not reliable or credible. The Judge was fully entitled to rely on them.

33. Another complaint in this connection was that the Judge misquoted the evidence of PW4. PW4 testified that he could see clearly the face of the first person he picked out in the identification parade (ie, D3). Shortly after, there were the following questions and answers:

"Q ... As to the second male whom you picked on 5 October (ie, D4), can you tell the court what he had done during this incident on 3 September? First of all, was he present together with other males who came into the restaurant at that time?

A Yes.

Q Did he do or say anything during this incident?

A I don't remember.

Q But under the circumstances at the time were you able to see clearly the face of the second man whom you have picked on 5 October?

A I can't be sure."

34. The Judge obviously made a mistake in stating that PW4 could clearly see the face of D4. Nonetheless, we do not think that this affects the force of the Judge's reasoning. PW4 had earlier on testified that when the group of 5 males were in the restaurant the lighting was excellent, nothing obstructed his view, and the group of persons were only 8 to 9 feet away from him and standing not far from each other. Moreover, the fact that PW4 identified D4 at the identification parade on 5 October 1999 was an admitted fact. This slight error in the quoting of the evidence by the Judge does not detract from our view that the conviction was safe and satisfactory.

35. Ground 3 fails.

Inference of complicity

36. Ground 4 challenges the inference drawn by the Judge that D4, merely being present, was part of the blackmail gang. D4 did not testify or call any witness before the Judge, and the Judge rejected his exculpatory statement to the police that he was merely there as a bystander watching the filmmaking. Ground 5 states that the only clear evidence was that D4 was stopped by the police in the vicinity of the restaurant, presumably asserting that this only clear evidence did not entitle the Judge to convict. It is true that mere presence of a person at the scene of a crime, without any evidence as to his doing or saying anything may not be a sufficient basis for convicting him for participation in the crime. In R v Coney (1882) 8 QBD 534, Cave J said at pp 539-540:

"Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon."

"Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury."

37. At pp 557-558, Hawkins J said:

"But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not."

38. It is therefore plain that it is not in every case that mere voluntary presence of a person at a crime scene without doing or saying anything will never lay him open to the risk of conviction of being a participant in the crime. All depends on the circumstances of the case, and the Judge as a finder of fact was entitled to examine the circumstances supported by the evidence accepted by him to decide whether D4 was a participant.

39. The Judge was dealing with a blackmail case where the evidence showed that a group of 5 people entered the restaurant and facing PW1, one or more of this group claimed to belong to a triad society, uttered threats, broke crockery and demanded a "Lo Mo". In such a case, there is little doubt that the presence of each person would add to the appearance of strength and menace of the group, thus giving force to their demand. The point put forward for D4 that he was an innocent bystander was clearly considered by the Judge. He said:

"On the basis of this evidence, there can be no mistake that D4 entered the restaurant with the other defendants. There is some uncertainty between prosecution witnesses as to how many came in, and it seems likely that they did not all come in together. There is no specific evidence as to what D4 did. The question is whether he might have been an innocent bystander. ...

It often happens in this kind of case that one of the blackmailing gang will utter a blackmail demand while the others stand by. Often, there is no specific evidence as to what those others do. The argument is put forward that mere presence is not proof of complicity. That is not a universal rule but depends on circumstances. Where a person cannot be certainly identified as part of the gang, it must be right. Where he can be identified as part of the gang, the inference arises that he is an accomplice. Of course, there may be some evidence to raise the possibility that, for instance, he did not know that the others intended blackmail and so was not a participant. But where there is no such evidence, the inference of complicity may be irresistible."

40. The Judge went on to deal with the evidence. He said:

"Here, it is quite clear from the evidence of the prosecution witnesses that in the restaurant, apart from the film crew, there was one gang of blackmailers, however many there may have been or however they grouped themselves at different times, there have been suggestions that there was another group present but none of the witnesses has accepted that, and there is no other evidence of it. There has been no suggestion that members of the public were coming into the restaurant. And indeed, PW1 under cross-examination was quite clear that people who were not participating were not to be allowed in, that there was staff on the door to stop people from coming in, and that anyone who did come in could be clearly seen. That makes sense and I believe it.

D4 was not one of the film crew. PW4 says that the man he identified at the parade who, in fact was D4, was present with the others. If he was not in the film crew and not a casual entrant, the inference is that he was not just with but in the blackmail group, and as such, an accomplice. It is true that D4 told the police that he was just there to watch the filming. This is an exculpatory part of a mixed statement. Its weight has to be considered. It is unsworn and untested. It does not accord with the evidence of PW1 that non-participants were kept out. I do not accept it as having any weight. I do not believe it.

In the absence of any other evidence, the irresistible inference, that is, the only one that no reasonable man would fail to draw from all the facts relating to D4 is, that he was part of the blackmail gang and he was an accomplice."

41. In our judgment, the Judge dealt with the evidence with great care. He was perfectly entitled to draw the inference that he did. In all the circumstances of the case, that inference must be the irresistible inference. D4 did not give any evidence in support his allegation that he was merely an innocent bystander. That, of course, was his right, and no adverse inference or comment should or could be drawn from it. However, the fact remains, his not giving evidence and his not calling any witness left the Judge to consider the evidence from the prosecution witnesses without any evidence to rebut or contradict it. Nothing has been proffered to show us that the Judge acted wrongly in the way he did. Grounds 4 and 5 fail.

Conclusion

42. In the result, the application in respect of conviction must be dismissed.

Representation:

Mr Alan Hoo SC and Mr Hectar H Pun, instructed by Messrs P L Lee & Co, for the applicant.

Mr Michael C Blanchflower SADPP and Ms Winsome Chan SGC, of the Department of Justice, for the HKSAR.