The Queen v. Wong Chi Wing

CACC000273/1989

BETWEEN

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Coram: Hon Sir Derek Cons V.-P., Clough & Power, JJ.A.

Date of hearing: 3 January 1990

Date reasons for judgment handed down: 16 January 1990

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REASONS FOR JUDGMENT

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1. These are the reasons of the court for its dismissal on the 3rd January 1990 of the application of the applicant Wong Chi-wing (D3) for leave to appeal against his conviction on the 4th May 1989 in the District Court by His Honour Judge Moylan on two charges of blackmail.

2. D3 had originally been charged together with two other accused namely Liu Wai-koon (D1 who became PW2 at D3's trial) and Chung Chi-ping (D2) in respect of those offences and an offence of criminal damage in respect of which D3 was acquitted at his trial. D1 and D2 had pleaded guilty to these and other charges and were sentenced by another judge before D3's trial. PW2 was an accomplice witness for the Crown at D3's trial but his evasive conduct as a witness resulted in his being fined for contempt by the judge who disregarded his evidence where it was not corroborated by Mr Chan Kai-lam (PW1) the victim of the two blackmail offences.

3. PW1 was the foreman at a construction site in the Shatin area. PW1 and PW2 were the only witnesses for the Crown. The case for the Crown at D3's trial was that PW1 had been the victim of demands for past and future protection money in respect of his employer's site made on the 14th August 1988 at Ming Yuen Store in the Shatin area by four men including D3 and PW2. These demands were alleged to have been foreshadowed by similar demands made of PW1 by two of the four culprits at a construction site at the end of July 1988.

4. Having regard to PW2's lack of credit, the Crown's case depended upon PW1's evidence and the admitted identification of D3 by PW1 at an identification parade held on the 5th October 1988. D3 was represented below and on appeal by the same counsel, Mr Joseph Tse. The defence did not make a submission of no case to answer at the conclusion of the Crown's evidence. D3 did not give evidence or call any witness. In addition to attacking the evidence of the discredited accomplice PW2, Mr Tse relied below on the inconsistencies in PW1's evidence, upon which he addressed the judge at some length, contending that PW1 had been evasive and self contradictory and that the Crown had failed to discharge the burden of proof in respect of inter alia the blackmail charges.

5. In a reserved judgment the judge, after mentioning that he had re-read the evidence and considered it in the light of Mr Tse's submissions, and with the standard of proof required of the prosecution in mind, indicated, in effect, that he was left sure of the guilt of D3 on the blackmail charges. He dealt with a number of matters which are not material to this appeal. On the crucial question of PW1's credibility the judge said that PW1 was obviously nervous when giving his evidence which was not given in a logical sequence and that at times he had clearly been confused by the questions of both counsel. The judge acknowledged that PW1's evidence had been different from what had been recorded in his witness statement concerning whether and how many men were seated at a table at Ming Yuen Store. However he concluded:

"But in the essence of his evidence I am sure he is not mistaken. He is honest and his evidence can be relied upon a[s] truthful and finally accurate".

6. There can be no doubt that if PW1's final evidence on various material matters is accepted, then D3 was guilty of the blackmail charges as found by the judge.

7. The question on this appeal was whether there are grounds upon which this court may or should find fault with the judge's verdict based, as it was, on the acceptance of PW1's evidence as that of an honest witness who had not been mistaken when implicating D3 as a participant in the blackmail offences who had described himself as Ah Wing.

8. For D3 Mr Tse accepted that PW1 had been a nervous witness and that his evidence had not been led in a logical sequence. However Mr Tse contended that the transcript showed that D3's confusion was not occasioned by the questions which were put to him but by his faulty and unreliable recollection of what had actually happened. There were, Mr Tse argued, material inconsistencies in PW1's evidence which demonstrated this, and the judge had failed to give sufficient consideration to them before accepting PW1's evidence. He further complained (although this was not raised in D3's perfected grounds of appeal) that PW1 had not identified D3 as Ah Wing when giving evidence in chief and that he had only done so after his cross-examination had begun, and then only in answer to a leading question from the judge. After a careful reading of the transcript of PW1's evidence up to the stage where the judge intervened and said to PW1 "Do you say that this accused is the 'Ah Wing'?" (to which PW1 replied "Yes") we considered that the judge was not to be criticised for asking the question which was clearly intended to confirm what must have been becoming apparent to the judge by inference from what PW1 had previously been saying by reference to Ah Wing without explicitly saying that D3 was Ah Wing.

9. The inconsistencies in PW1's evidence which Mr Tse relied upon on support of D3's application concerned two matters, namely (1) whether Ah Wing (whom PW1 had identified as D3) was one of the two men who had initially made demands upon PW1 at the construction site at the end of July; and (2) whether D3 had claimed to be of 14 and had discussed money with PW1 at the Ming Yuen Store on the 14th August 1988.

10. As regards (1), PW1 had first volunteered when giving evidence in chief that Ah Wing was one of the men who had visited him at the construction site. At the end of his evidence in chief (and before PW1 had expressly identified D3 as Ah Wing) PW1 said that D3 was not one of the two men who had visited him at the construction site. Later, in the course of re-examination, Crown counsel reminded PW1 that at the beginning of his cross-examination he had (in answer to the judge's question) said that D3 was Ah Wing and that in his evidence in chief PW1 had said An Wing was one of the two men who visited him at the construction site. In answer to a leading question by Crown counsel PW1 then agreed that his evidence now was that Ah Wing had never been to see him at the construction site.

11. At this stage the judge intervened and read to PW1 the passage from his notes of evidence in which PW1 had said in chief that Ah Wing had been one of the men who visited hint at the construction site "with the tall one". When the judge asked PW1 if he remembered saying that he replied-:

"Ah Wing came with the tall man? No. That is not true."

12. This was followed by the following question by the judge and answer by PW1:

The transcript indicates that neither Mr Tse nor Crown counsel sought to take the opportunity to ask PW1 any questions arising out of the questions put by the judge at this stage.

13. As regards the matter referred to at (2) above, PW1 had in chief said that at the Ming Yuen Store Ah Wing had claimed he was "of 14". PW1's evidence in chief was also that D3 had talked to him at the store about how much money was demanded from PW1 and had discussed money with him. Mr Tse (who has foreshadowed in cross-examination the proposed defence of D3 as being that he did not arrive at the store until after the unlawful demands had been made of PW1 by others) concluded his cross-examination in the following passage in the transcript:

14. Immediately thereafter Crown counsel re-examined in the following passage in the transcript towards the end of which the judge intervened once:

Court

Crown Counsel

15. The inconsistencies in the evidence of PW1 relating to both matters (1) and (2) above are manifest. It is equally clear that PW1's final evidence on both matters, if believed, pointed to the guilt of D3. The judge was addressed fully about the inconsistencies by Mr Tse at the end of the trial. On appeal Mr Tse contended that they were brushed aside by the judge when accepting the final version of PW1's evidence on both matters.

16. We did not agree. It seemed to us that this was a situation for the seeing and hearing judge to determine whether PW1 was an honest and nervous witness who was confused by counsel's questions or whether he was, as Mr Tse submitted, both mistaken as to the relevant events and identities, and also evasive. Mr Tse eventually felt constrained to accept that he could not go so far as to contend that no reasonable judge could possibly have accepted PW1's evidence. He urged this court to entertain a lurking doubt about this conviction and to conclude that it was unsafe and unsatisfactory.

17. This we declined to do. It seemed to us that this was a case, by no means uncommon in Hong Kong, where the judge, who in the District Court also has to perform the jury's function, had to assess the credibility of a prosecution witness whose evidence contained inconsistencies on vital matters which might properly be attributed by the judge to mere honest confusion, or to mistake or evasiveness or a reasonable doubt thereof. The judge seemed to us to have made his decision with care and scrupulously and fairly without misdirecting himself. We therefore declined to grant leave to appeal and dismissed D3's application.

Representation:

Joseph Tse (D.L.A.) for Appellant.

M. Hartmann (Crown Prosecutor) for Respondent.