R. v. Ng Chun Ping

HCMA000520/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.520 OF 1996

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Coram : Hon Stock, J. in Court

Date of hearing : 20 August 1996

Date of judgment : 20 August 1996

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J U D G M E N T

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1. This is an appeal against convictions for an offence of assault occasioning actual bodily harm, and another of criminal intimidation. There is one appellant before me but at the trial before the magistrate there were two defendants. This appellant was the 2nd defendant and the other defendant was the 1st and I shall, for the sake of convenience, refer them in that way in this judgment.

2. The defendants faced between them five charges. The 1st defendant faced a charge of aiding and abetting in lending money at an excessive interest rate and that was alleged to have taken place in mid-June 1994. He also faced a charge of assisting in book-making in early November 1994 and then this appellant faced the three other charges, which were Charges C, D and E. Charge C was lending money at an excessive interest rate and the allegation was that he lent money to somebody called Lam Ying Wai. The 4th charge was assault occasioning actual bodily harm and the allegation was that he, on 19th January 1995, assaulted Lam Ying Wai, occasioning him actual bodily harm and finally, there was a charge of criminal intimidation, the allegation being that he, on 24th January 1995, threatened Lam Ying Ling with an intent to alarm her. She is the sister of the complainant in the assault charge.

3. The man Lam Ying Wai is an inveterate gambler. That became clear in the course of the evidence. It is alleged that he had accumulated very substantial debts with the 1st and 2nd defendants and that in the course of conduct which was designed to recover the debts, the appellant beat him and also intimidated his sister.

4. The main witness for the prosecution was the man Lam. I have tried with considerable difficulty to follow his evidence from the transcript. That is not a criticism of the transcript but it is a comment on the nature of the evidence adduced. A more confusing examination-in-chief it would be most difficult to find. Events were dealt with back and forth in non-chronological disarray, some referring to events well after the periods covered by the charges; and some not clear as to what period they related at all.

5. He gave evidence about a debt that he incurred with the 1st and 2nd defendants, which one was supposed to gather was the debt which led to these charges. He said that in June 1994 he lost $20,000 in gambling in Macau, and that he then borrowed that sum later in the year from the 1st defendant at a very high interest rate. He defaulted in January 1995 or at about that time, and demands began to be made by the 2nd defendant - one presumed at that stage of the evidence in relation to this $20,000 loan, but it emerged that he was saying that the demands had originated in respect of a loan from the 2nd defendant in the sum of $35,000. Then he said that the loss in Macau was $35,000 and not $20,000.

6. It emerged that in about October 1994, he owed the 2nd defendant something in the region of $180,000. He told the court that his family came to learn of his debt and of the fact that he was being pressed to repay. There then took place a meeting at a restaurant at which his sister was present, at which an agreement was made that the family, or the sister, would start paying back the sum due. He provided details of the agreement allegedly there made. The 1st instalment was paid, but then the appellant is said to have threatened the sister, and the family decided to report the whole matter to the police.

7. Lam also said that at some stage he was beaten by the appellant who came to see him with another man. When he was beaten he was with a friend.

8. His sister gave evidence. Her evidence was far more clear. She learnt of the debt to her brother on 15th January, and on 16th January she talked to the appellant over the telephone. On 17th January there took place the meeting in the restaurant. There was a discussion about the terms of repayment, with the appellant taking a hard line. The appellant required $50,000 to be paid within a week, and then $10,000 per month. The appellant wrote down the details of the repayment schedule and he also provided her with a bank account number into which the money was to be paid. Both these items were received into evidence.

9. On 19th January which is the day the assault was said to have taken place the sister deposited $10,000 and on 20th January, $7,000. On 24th, she telephoned him to see whether he had received the $7,000 and to gauge his reaction to the fact that whilst some effort had been made to repay money, the amounts paid were not as large as had been required. It was during this call that the appellant was said to have uttered threats which constituted criminal intimidation.

10. The appellant did not give evidence. It was put in cross-examination of the man Lam that he was so deeply into debt with the appellant that the only way he could extricate himself was to fabricate allegations and report the matter to the police.

11. The magistrate dismissed the charges against the 1st defendant and the appellant which alleged lending money at an excessive rate of interest. He rehearsed the confusing and contradictory evidence about the $20,000 and $35,000 loans, and said that given the contradictory nature of the evidence, he could not be satisfied to the required standard that the charges were made out, although he said that he was satisfied that there were loans outstanding and that the 2nd defendant was seeking repayment of the loans. He was also satisfied that the 2nd defendant had beaten Lam and had threatened his sister. He was particularly impressed with the evidence of Lam's sister.

12. There are a number of bases upon which the conviction for assault was attacked by Mr Chung in the course of his address to me today. I shall not deal with all of them, for there is only one which in my view has merit. The prime attack was one which seek to underscore the credibility of the complainant Lam. He was a gambler and gave very unclear evidence about the loans. It is said that since the magistrate did not convict the appellant of the C charge because of the unsatisfactory nature of Lam's evidence, that too should have led the magistrate to treat his evidence as highly suspect in relation to the assault charge. That with respect does not follow. It is true that the evidence was conflicting but evidence can be confused and conflicting from even the most truthful witnesses; and that is the sense in which the magistrate was moved to say that he could not be convinced that the particular charges were made out.

13. He was however satisfied that Lam was being pursued by the appellant for money. He was quite entitled to be so satisfied. He was also satisfied that Lam was assaulted. In coming to that conclusion he summarised in his statement of findings the evidence about the assault and said that PW1, that is, Lam, had "related an incident which was less than one week before D2 spoke to his sister on the telephone." It is true that the date was not a material averment, so that if the assault had taken place on another day at about that time, no one would take issue with the magistrate's conclusions. However, there are disparities in the evidence of Lam, to which the magistrate has not referred in his reasons for verdict, which go not to the question of the precise date of the offence, but to the reliability of the allegation. It may well be that the transcript provides a picture which does not accord with the feel of the evidence as it emerged, but I can do more than examine what appears on the face of the record. The fact is that Lam, whose reliability was so heavily under attack and whose confusing evidence led the magistrate to acquit on other charges was significantly inconsistent about when his assault took place.

14. In evidence in chief he said that he was beaten less than a week before the call which his sister received when the threats were uttered. Then there appears to be evidence, although it does not come across very clearly, that Lam was saying that the assault took place before the meeting in the restaurant - the charge alleged that it took place after - and then, and most significantly, there was evidence from him that there was a three week gap between the restaurant meeting and the assault.

15. If it were merely a question of a date in a vacuum, some inconsistencies in the date given would be of little consequence especially if the trial, as in this case, is a long time after the event. However, the evidence given by Lam as to the timing of the assault was given in the context of specific events. In the case of something as memorable as a beating in which injuries are sustained, one can expect a witness of truth to recall when in relation to those events the beating took place, not precisely when, but whether before or after event A and B, assuming of course that the events themselves are significant. In this case the meeting at the restaurant and the telephone call to the sister by the appellant which contained the threats and which motivated Lam and his sister to report the matter to the police were memorable events, which had a direct connection with the assaults themselves. Yet Lam has given several different accounts as to when the assault took place in relation to those events. On one version he said that he was assaulted a few days before his sister had the call. On another that the assault took place before the visit to the restaurant. The prosecution charge was that the assault took place on 19th. Then, as I say, most starkly, he says he was beaten three weeks after the telephone call or rather that there was a three week gap between the two. This is evidence which in my judgment cannot be overlooked and there was no reference in it to the reasons for verdict which the magistrate had provided.

16. In these circumstances, it appears to me that the conviction in relation to assault occasioning actual bodily harm is unsafe and unsatisfactory. I shall allow the conviction in relation to that charge and that the conviction will be quashed.

17. The conviction for criminal intimidation is however altogether a different matter. The magistrate was sure that Lam was under pressure to repay debts and he was satisfied that the appellant was exerting that pressure. He was very impressed with the evidence of the sister. He was entitled in my judgment to come to all those conclusions.

18. In his address to me today, Mr Chung says that the magistrate did not take into account the fact that the sister had a motive to lie. In my judgment, it is apparent from the Reasons for Verdict that the magistrate had that matter well in mind. He also points to some disparity in the evidence between the sister on the one hand and those of her two brothers as to whether or not she was aware, prior to this particular incident, that her brother had been constantly facing financial problems. Inconsistencies can always be found especially when a 300 pages transcript is produced and gone through with a fine toothcomb. In my judgment, this particular disparity is not material. Indeed, it takes the defendant's case no further. For on any view of the matter the sister was well aware of this particular debt and the magistrate had in mind the possible motive of reporting to the police in order to give her brother some relief. In the event, the magistrate was entirely satisfied that the appellant had exerted pressure on the man Lam and was completely impressed with the evidence of the sister. He was entitled to accept her evidence. He has not misapplied the law and in my judgment there is nothing which undermines the safety of that conviction.

19. Accordingly, the appeal against the conviction for criminal intimidation is dismissed.

Representation:

Mr Johnny Chan, C.C., for Crown

Mr Boey Chung, inst'd by Wong and Chan, for Appellant