Ng Wing Ming v. R.

CACC000280/1994

IN THE COURT OF APPEAL

1994, No. 280
(Criminal)

- Headnote -

Criminal law - one man's word against another's - Proper use of demeanour in assessing credibility - Inherent probabilities - Judge relied too heavily on subjective assessment of demeanour and failed sufficiently to weigh in the scales the inherent probabilities of the case. Conviction on blackmail and related charges quashed.

IN THE COURT OF APPEAL

1994, No. 280
(Criminal)

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Coram: Hon Silke, Ag. C.J., Litton, J.A. and Barnett, J.

Date of hearing: 5 August 1994

Date of judgment: 5 August 1994

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. The applicant, Ng Wing-ming, was convicted before Her Honour Judge Fi-lan Chua in the District Court on five charges. The first charge was blackmail. Charges 2, 3 and 4 were theft and charge 5 common assault. The judge imposed a sentence of 15 months imprisonment concurrent in relation to charges 1 to 4 and two weeks consecutive on charge 5, making a total of 15 months 2 weeks imprisonment. All the offences occurred on 2 June 1993.

2. The victim was one Yiu Chun-hung, PW1, who was the only witness for the prosecution. The applicant was the only witness for the defence. The issue for the judge at the end of the day was whether upon the whole of the evidence she was satisfied that the prosecution case was proved beyond a reasonable doubt. To reach her conclusion that PW1 was telling the whole truth as to what happened, and therefore that the applicant had lied, the judge relied heavily upon the demeanour of the two witnesses PW1 and the applicant.

3. As regards PW1 the judge said:

"Mr Christopher Lam conducted a thorough and animated cross-examination of PW1. His face and his responses to the questions convinced me beyond reasonable doubt that every detail of his lamentable story was true."

4. As regards the applicant, the judge said:

"His demeanour and his answers soon revealed his mendacity. I reject his evidence."

5. Demeanour

Demeanour is a notoriously uncertain guide to the truth for obvious reasons. A witness comes into court as a total stranger to the judge who can hardly be expected to read from his or her facial expressions or "body language" indications as to truthfulness or otherwise. The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort.

6. As regards the competing versions in this case, it is difficult to say which story was inherently more probable or improbable. Both versions had aspects which would tend to make a jury or a trial judge raise an eyebrow.

Prosecution case

7. The prosecution case in summary was as follows. PW1 owned a business which sold anti-burglar devices. He was contacted by phone by a Mr Fan and lured to a hotel room in Shenzhen upon the pretext that Mr Fan's boss wanted to set up an anti-burglar system in his factory in Shenzhen. When PW1 got to the hotel room he was persuaded to part with his re-entry permit by Fan upon the excuse that the particulars had to be registered with the hotel and it was better that he, PW1, did not waste time. The time was better spent with talking to Fan's boss. There were a total of four strangers in the room when PW1 got there: Fan, his boss Cheng, one other person whose name PW1 did not know and the applicant. Fan returned five minutes later with the news that the road to the factory was closed because of a visit by a Government dignitary whereupon one of the strangers then proposed playing poker in the meanwhile. The opening stake was only $10. PW1 did not play in the first hand, folded his cards early in the second hand. In the third hand, he held three sixes but when the betting went sky-high he folded, having lost then a total of $320 on the two hands he played. He was told that he had lost $58,000 and was required to sign an I.O.U. for that amount. He did not have his re-entry permit and was frightened into signing the I.O.U. by the threat of having his re-entry permit withheld and by the statement that they, the people of the room, had his home address and could harm his family and his business. He was then escorted back to Hong Kong by the applicant and another man and taken to the Hongkong Bank at the Choi Yuen Estate at Sheung Shui. Threats were made against him and his family and he was punched twice in the stomach. He was forced to withdraw $5,000 in cash from the ETC machine. This was the limit of the cash withdrawals for that day. This in essence constituted the first of the three theft charges brought against the applicant.

8. When PW1 said he had no more money, the applicant punched him again in his stomach and allegedly said "Don't play games. I have got your home address. I can find the members of your family." PW1 was then frightened into making the following arrangement. The applicant would open a savings account at the Hongkong Bank straight away and PW1 would then transfer such money as he had into that account. Accordingly, a savings account was opened and PW1 then effected two transfers into that account in the applicant's name, one in the sum of $14,000, the other $15,000; the sums having gone into the applicant's savings account were then immediately withdrawn by the applicant. This constituted in essence the second and third theft charges. The various punches in the stomach delivered at the Hongkong Bank constituted the assault charge upon which the applicant was convicted.

Defence case

9. As regards the applicant's case this is what the judge found:

"Not surprisingly the defendant had a different story to tell. He said although he was born in China he lived in Hong Kong from 1979 but recently returned to live in China where he had a number of businesses dealing in fashion and hairdressing. Shortly after noon on the 2nd June, 1993, he went to a room on the 9th floor of the Sam Kau Hotel, as arranged, to look for Director Chan who works with the Public Security Bureau, to obtain temporary residence permits for two women from Szechuan Province. In the room he saw Chan and was introduced to the other two men, Fan and PW1. There was very little conversations going on. After twenty minutes he asked Chan where the permits were and was told they were on the way. Then Director Chan, suggested a game of poker so the four of them started playing. After five or six games he became the sole winner. From the last game he had won $58,000 from PW1. PW1 was never threatened, and no-one had taken possession of his travel document. Furthermore PW1 had suggested the defendant accompany him back to Hong Kong to collect his winnings.

He had gone alone with PW1 to Hong Kong and it was at PW1's suggestion that they had gone to the Hongkong Bank at Choi Yuen Estate. He did not speak to PW1 at all during the journey, and he certainly never blackmailed or assaulted him. At the bank PW1 at first only gave him $5,000. He told PW1 he could not accept only $5,000 since he had lost thousands. At this PW1 taught him how to open a bank account. After the transfer of $29,000 which he cashed, PW1 told him he was newly wed and that was all he had so he told PW1 to forget the rest. After showing PW1 the I.O.U. he tore it and threw it into a dustbin. He said PW1 was so grateful at his magnanimity he had even invited him to have lunch but he declined the invitation as he had to rush back to China."

10. The judge did not say that the applicant's version of events was inherently improbable or unbelievable. She seemed much influenced in her judgment regarding his credibility by the result of his cross-examination regarding the poker game. This is what the judge said:

"During the cross-examination of the defendant by Miss Judy Cheung the defendant revealed his monthly income was 7,000 renminbi about a little over HK$6,000. He denied there was a person called Cheng or that PW1 was told there was a road-block. She confronted him with the fact that even by his own account of the last game he should have netted $60,000 not $58,000 the defendant accepted it was $60,000 not $58,000. While the defendant and his accomplices may have been slick poker players I observed he was not by any stretch of the imagination a slick liar. His demeanour and his answers soon revealed his mendacity. I reject his evidence."

Inherent probabilities

11. This was a difficult case for the judge to try. There were few signposts to guide her as to where the truth was. It was essentially one man's word against another's. In these circumstances the inherent probabilities provided a much better yardstick than the demeanour of the witnesses.

12. One glaring fact stands out. In opening the new account at the Hongkong Bank, the applicant had provided full particulars regarding himself, his name, his identity card number and of course the new Hongkong Bank account number. The judge found that PW1 saw the applicant's identity card when the account was opened and had memorised the name as well as the identity card number and she went on to say that when the applicant was not looking he, PW1, wrote those particulars down on the bank advice slips exhibits P2a, 2b and 2c. This is an important aspect of the case. It seems highly improbable that neither the applicant nor the other man who allegedly accompanied him to Hong Kong had seen PW1 writing on those three slips. As regards Exhibit P2a, the advice concerning the $5,000 cash withdrawn, the writing could only have been done after the savings account had been opened. It seems highly improbable that these acts could have been done surreptitiously on all three slips in precisely the same form, unobserved by the two men if PW1's version be correct. This was not an aspect of the evidence which the judge had dealt with in any detail. She gave it no more than a passing reference. The conclusion seems irresistible that the applicant must have seen PW1 making the note on the three slips and was indifferent to the fact that his identity was fully revealed to PW1. This behaviour on the part of the applicant is consistent with the rest of what took place at the bank. The savings account was opened in his own name and the two sums of $14,000 and $15,000 were transferred into that account openly and on the face of it voluntarily by PW1. The withdrawal of the total of $29,000 took place within minutes of the account having been opened. Everything was done above board. Such actions do not bear the hallmark of a blackmailer.

13. Another aspect of the case which is striking is this. By PW1's own account he, in the course of the last poker game, had folded his cards at the third round; since that was the last hand he played it was simply impossible that he could have lost more than a total of $320 if his account regarding the three games of poker were true. No explanation was given as to how his purported losses could have amounted to $58,000. This gap in the evidence was not remarked upon by the learned judge.

14. In our view the judge had relied too heavily on her own subjective assessment of demeanour and had not sufficiently weighed in the scales the inherent probabilities of the case. Might this have been a case where PW1 was only partially telling the truth? On his own evidence he was wholly inexperienced in playing poker and yet he voluntarily entered into the game with total strangers. Is it possible that having lost and finding it difficult to face his family with the shameful truth PW1 had partially invented the story of blackmail and assault? It seems to us that such a possibility cannot be wholly ruled out.

Conclusion

15. Section 83(1)(a) of the Criminal Procedure Ordinance gives this court wide powers on appeals. In a case of this kind we must at the end of the day ask ourselves a subjective question. Are we content to let the matter stand as it is, or is there some lurking doubt in our minds which make us wonder if an injustice has been done? See The Queen v. Cooper. 53 Cr.App.R. 82 at 85-6. In our judgment a doubt exists and we must give effect to it by allowing the application for leave to appeal and treating the hearing as that of the appeal, allow the appeal. The conviction is accordingly discharged.

Representation:

Applicant in person

Mr A.A. Bruce (Crown Prosecutor) for Crown/Respondent