HKSAR v. Chau Kwok Cheong

CACC000277/1997

IN THE COURT OF APPEAL

1997, No. 277
(Criminal)

______________

______________

Coram: Hon. Power, V-P, Mayo, J.A. and Yeung, J. in Court

Date of hearing: 23 October 1997

Date of delivery of judgment: 23 October 1997

______________

J U D G M E N T

______________

Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted of blackmail after a trial before Deputy Judge Kwok. Particulars of the charge were that on 13 June 1996 in Kowloon City, with a view to gain for himself, he made an unwarranted demand of between $80,000 - 100,000 from Ms Lam Siu-mei, with menaces. He now seeks leave to appeal against this conviction.

2. Ms Lam had previously stated a willingness to give evidence against two of the Applicant's friends. These friends had both pleaded guilty to the offences they were charged with and one was sent to prison and the other to a training centre.

3. According to the prosecution case on the day of this offence Ms Lam went to a majong school to look for her ex-fiancée. She saw the Applicant who was previously known to her outside the premises. He approached her and told her that she would have to pay 'family compensation money' to his brothers' families. He mentioned a figure of HK$100,000. When Ms Lam said she did not have the money he said that this didn't matter. She would have to raise the money. He then mentioned a figure of HK$80,000. He gave her his paging number and told her to let him know when she had the money. He went on to say that if she did not telephone him, he knew where she and her family lived and that he would burn down their house and cause trouble to her family.

4. On the following day after receiving advice from her probation officer she made a report to the police.

5. Subsequently the Applicant was arrested. He made a cautioned statement to the police in which he admitted asking Ms Lam to pay 'family compensation money' but denied making any threats to her.

6. The Applicant did not give evidence at his trial.

7. One of the matters which did emerge during the trial was that Ms Lam did have a previous criminal record. She had been convicted of wasting the time of the police. In this connection she agreed when she gave her evidence in the trial that she had previously told lies and had fabricated evidence against another person. This had been a matter which was carefully weighed and considered by Deputy Judge Kwok. He was nonetheless satisfied that she had been telling the truth on this occasion.

8. In the perfected grounds of appeal Mr. Allan submitted that the Judge should not have placed reliance upon the evidence of Ms Lam having regard to her previous conviction and the fact that she had been in breach of the terms of the probation order and had on an occasion escaped from lawful custody. Mr Allan went on to refer to the several relatively minor inconsistencies in Ms Lam's evidence and submitted that having regard to her character the Judge should not have been prepared to convict the Applicant on her testimony.

9. He was also critical of the Judge for stating that he was not prepared to attach weight to the contents of the statement made by the Applicant particularly as he had not gone into the witness box.

10. What needs to be borne in mind is that the Judge had the advantage of himself observing Ms Lam giving evidence and it was a matter very much in his realm to weigh the evidence and determine whether reliance could be placed upon it. The mere fact that a witness may in the past have committed offences does not automatically mean that their evidence should be disregarded.

11. Be that as it may what is clear is that the Judge was fully aware of Ms Lam's background and the problems she had had but was notwithstanding this prepared to consider her as being a truthful and reliable witness. He was entitled to reach such a conclusion.

12. Nothing which has been submitted by Mr. Allan persuades us that there are good grounds for interfering with this conviction. The application is accordingly dismissed.

Representation:

Mr. A.A. Bruce, S.C. leading Mr. Prakash L. Daryanai, G.C. (DPP) for Respondent

Mr. William Allan instructed by M/S William Au & Co for Applicant