Kung Chi-hung Alias Hung Lung and Others v. The Queen
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CACC000220/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 220 OF 1972 -----------------
----------------- Coram: Rigby, C.J., McMullin and Leonard, JJ. Date of Judgment: 23rd August, 1972. ----------------- JUDGMENT ----------------- McMullin, J. : 1. On the 23rd of August we dismissed the applications of all three appellants and reserved our reasons for doing so until later. 2. The three appellants are three of five young men originally charged before the court on no less than fourteen charges arising out of a series of events which took place in Chi Ma Wan Prison between the 23rd of December 1971 and the 20th of January 1972. 3. The first appellant, KUNG Chi-hung, appeals against concurrent sentences of eighteen months imposed upon the 3rd, 4th and 7th charges laid under Section 23 of the Theft Ordinance in respect of alleged offence of blackmail, and against his conviction on the 6th, 11th and 12th charges which charge him respectively with criminal intimidation, contrary to Section 2 of the Criminal Intimidation Ordinance, assisting in the management of unlawful society, contrary to Section 19 of the Societies Ordinance Cap. 151 and claiming to be a member of a Triad society, contrary to Section 20(2) of the same Ordinance. Sentences of three months, eighteen months and eighteen months respectively were imposed in relation to these latter offences, to be served concurrently with each other but consecutively to the sentences imposed upon the 3rd, 4th and 7th charges. 4. The 2nd and 3rd appellants (originally the 3rd and 4th accused) each received sentences of six months and three months in respect of convictions upon charges of (a) common assault and (b) claiming membership of an unlawful society, these sentences to run concurrently. The 2nd appellant appeals against sentence only on the assault charge and the 3rd appellant against conviction only on the same charge. 5. The prosecution case against all the appellants rested principally upon the evidence of LO Yiu-kui who at the time of the alleged occurrences was prisoner No. 7312 serving a sentence of one year's imprisonment in Chi Ma Wan for possession of dangerous drugs for trafficking. His story was that when he was admitted to prison on the 23rd of January 1971, he was shut up in one of the halls of the prison in the usual way at about 5.00 p.m. and that he then found himself in the company of a number of other prisoners including all three appellants. On this occasion he was approached by the 2nd and 3rd appellants who engaged him in conversation upon the topic of Triad societies. Out of fear, he professed to be a member of the Luen Kung Lok Triad Society. He was punched by them both and was then introduced to the 1st appellant who, according to this witness, was by way being the leader of a kind of internal Triad society formed in Chi Ma Wan from members of four long established Triad societies. The purpose of this introduction was to induct him into that society known as the Big Four or Sze Tai Society. The first two charges concern these events of the 23rd of December and of the present appellants they concern only the 2nd appellant who has not appealed against conviction or sentence on either of them. 6. The complainant told the court that on the 30th of December he was interrogated by the 1st appellant in the presence of the 2nd and 3rd appellants concerning Triad societies. When his replies were unsatisfactory he was asked to give $300 to them. This request was made by the 1st appellant. He was also forced by them to write down the address, telephone number and name of his wife and give it to them. Thereafter on the 3rd of January, the complainant reported this matter to a prison officer by name Lo, and on the following day he saw Inspector Shek in the prison office. As a result of this Inspector Shek went and interviewed the complainant's wife, P.W.7, WONG Ching-kuk. On the 8th of January, according to the complainant, the 1st appellant gave him a piece of paper and told him to write a letter asking for $300 and he did so in the belief that were he not to do so he would suffer injury at the hands of the appellants and their friends. This incident is the basis of one of the first blackmail charge (6th charge) against the 1st appellant. His wife takes up the tale after that. She told the court on the 10th of January a man came and asked her for money but she had not the $300 which was requested and she gave him $90 only. Later in that evening, in the same prison hall, the complainant and all three appellants were present together with a number of other people. The appellants accused him of having sent a false letter and the 1st appellant said that he would care no more about him. Then the 3rd appellant asked him to stand up close to the wall and said that he should be beaten, whereupon the 2nd appellant struck him on the chest once. After that the 1st appellant told him that he was to fix up the question of the $300 otherwise he would be given certain menial tasks to perform for the other prisoners. He was then told to write another letter asking for $400 but because they had already received $90, he wrote a letter asking for $300 only and gave it to them. This incident is the basis of the assault charge against the 2nd and 3rd appellants (5th charge), and of the second blackmail charge and of the criminal intimidation charge against the 1st appellant (charges 3 and 6). On the following day he once again met the prison officer Mr. Lo and after that was transferred to the hospital where he remained until the 14th. After returning to the hall, on that day the 1st appellant came to him and asked him if he had spoken to his wife in the meantime and he said that he had and had told her to have $300 ready for collection at home. He wrote a further letter asking his wife for $300 at the 1st appellant's demand and out of fear of being subjected to violence and humiliation. This episode is the basis of the third blackmail charge (7th charge). 7. Thereafter KU Ying-chi, the original 5th accused in the case, (who is not an appellant in this court) enters the picture. This man was a prison warder and he admitted to the court that he had carried a letter on behalf of the 1st appellant to the complainant's wife. He maintained he had done so out of pity for the complainant. The complainant's wife told the court that the letter was delivered to her upon the 17th of January at 11.00 a.m. by a person who was not the same as the man who had originally visited her on the 10th. This latter person told her that her husband had asked him to come and collect $300, but she said that she had not so much money and asked him to come half an hour later. When he went away, she telephoned Inspector Shek and a police trap was laid. When the 5th accused arrived back, she gave him three marked $100 notes which had been given to her by the police and in return he handed her a piece of paper. This was the second letter written by her husband, exhibit P1. The detectives who were in hiding then came out and arrested the 5th accused. It may be noted in passing that although the 5th accused pleaded guilty to the charge which concerns the carrying of the letter, he denied the other charges laid against him of blackmail and theft and the learned District Judge found that in respect of those charges he had no case to answer. 8. In respect of the six charges laid against him, the 1st appellant on the 20th of January at the superintendent's office, Chi Ma Wan was charged by Inspector Shek with the several offences detailed therein, and made statements confessing guilt on every case. The accused objected to the admission of the statements in evidence but after due inquiry the learned District Judge ruled that they were admissible. Evidence also given by chief prison officer, Mr. Brimmicombe-wood, P.W.5, that on the 19th of January at 4.45 p.m. he ordered prison officer Kwok to search the 1st appellant's cell. Prison officer Kwok told the court that in that cell he had found two exercise books and four notes containing lists of prisoners which were concealed in the blankets of the accused's bed. According to Mr. Brimmicombe-Wood, he questioned the appellant about these matters and the appellant told him that these documents contained details of the brothers which, according to Mr. Brimmicombe-Wood, is a slang term for members of the society. He also said that the accused told him that these documents related to the unlawful society known as the Sze Tai Society. There was a quantity of additional evidence into which the learned District Judge went in some detail concerning these offences at large, but enough has been said to indicate that a strong case was put before the court. 9. In this court the 1st appellant said that he had been wrongly charged with being a member of a Triad society. But, notwithstanding that he appeals against his conviction for criminal intimidation he admitted intimidation of the complainant and demanding money from the complainant's wife. He said that he had never claimed to be a member of a Triad society and that he knows nothing of the Sze Tai. Although the appellant alleged in this court that he felt it was no use for him to make any statement when he was before the District Judge because the latter had told him what he said would not be evidence and although a remark by him to that effect appears on page 66 of the record it would appear from the record at large that the learned District Judge went in very great detail into the nature of the charges when informing all the appellants of their rights at the conclusion of the prosecution case. They were also informed in detail of the nature of the presumptions raised under Sections 18, 27 and 28 of the Societies Ordinance. Having denied the offences alleged against him upon oath in respect of the 3rd, 4th and 6th charges, the first appellant upon being asked if he had anything to say on the 7th charge, declined to say anything more in respect of any of the remaining charges. 10. For our part we are satisfied that there was abundant evidence to support the conviction of the 1st appellant on all the six charges with which he is concerned. 11. As to the 1st appellant's appeal against sentence in respect of the 3rd, 4th and 7th charges i.e. the blackmail charges. Taken against the background of the circumstances as a whole the facts disclose a flagrant flouting of the law within the very walls of the prison itself by a person who clearly was determined to exert the baleful influence of a Triad Society even while be himself was incarcerated. We do not think that it can be said that these sentences of eighteen months were excessive. No application to appeal against his sentences in respect of the other three charges were filed nor has the appellant sought to argue the merits of these sentences. 12. With regard to the 3rd appellant's appeal against conviction on the charge of common assault (5th charge), arising out of the incident on the 10th of January, it appeared that the point he was making was that the evidence itself discloses only that the 2nd appellant struck the complainant while he stood by. The complainant's evidence was, however, that it was the 3rd appellant who called the complainant to stand up against the wall and then demanded that he should be beaten and that it was upon his instructions that the 2nd appellant actually administered the blows. On this evidence the learned District Judge was clearly entitled to regard the 3rd appellant as particeps criminis. The 3rd appellant does not seek to appeal against either of the sentences imposed upon him on the 5th and 15th charges. 13. As to the appeal of the 3rd appellant against the imposition of a term of six months in respect of the assault committed by him on the person of the complainant on the 10th of January, it can be said that although the assault was obviously not of a grave nature it was inflicted upon the complainant against a background of threats, terror and coercion. It cannot therefore be said that the learned District Judge was acting upon a wrong principle or that the sentence was manifestly excessive. 14. In the upshot therefore the applications of all three appellants are refused. Representation: Appellants in person. Eddie Soh, C.C., for respondent. |