The Queen v. Chan Kam Ming

CACC000263/1988

BETWEEN

Coram: Hon. Silke, V.-P. Power & Penlington, JJ.A

Date of Hearing: 25 January 1989

Date of Judgment: 25 January 1989

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J U D G M E N T

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Power, J.A.:

1. The applicans faced a charge that he, together with one Siu Wan Ping between the 16th day of December 1987 and the 2nd day of January at Cheung Hing Fat Saw-mill Factory, Lot 567D, Lau Shui Heung Road, Fanling, New Territories, with a view gain for themselves made an unwarranted demand of $100,000 Hong Kong currency or $6,000 Hong Kong currency per month from Ng Shek Cheung with menaces. Both of the defendants pleaded not guilty to that charge and were found guilty after trial in the Distract Court by Judge D'Almada Remedios and sentenced to imprisonment. Neither of the defendants gave evidence at the trial nor did either call any idence The applicant now seeks leave to appeal against his conviction.

2. The Crown case was a strong one. There was clear evidence from the person mentioned in the charge, Ng Shek Cheung, who was the first prosecution witness, which established that the applicant had made a visit to the premises with the 1st defendant and demanded protection money on 16th December 1987. Mr. Ng gave evidence that the applicant made a telephone call to him at the mill on 19th December 1987 and renewed that demand. Mr. Ng went on in his evidence to say that there was a further telephone demand made on 29th December 1987, after there had been a fife at the saw-mill, which the trial judge was satisfied was arson, and he said there was then a further telephone call from the applicant on 30th December. These two calls and later calls were tape-recorded. The final call on 30th December was taken by a police officer and in consequence of what was said in that call a trap was set by the police and the applicant was arrested.

3. The trial judge when reviewing the evidence given before him said that he found Ng to be an honest and reliable witness. There was also evidence from a police office P.C. 16470 which related to the final telephone calls and to the setting of the trap. The judge was satisfied. that this officer was not a satisfactory witness as to some matters but he accepted his evidence as to the tape-recording and as to the arrangements made to set the trap.

4. The applicant, as we have already said, gave no evidence.

5. The trial judge said in his Reasons for verdict:

"1 accept that Ng was able to recognize the voice of Lam Shing as the voice of D2. D2 was identified by Ng as a person who called on him and demanded protection money. The whole sequence of events that followed related to that demand.^"

6. The thrust of this appeal derives from the passage which immediately follows that which we have just read and which was the final passage in the Reasons for Verdict. In this passage the trial judge said:

"As neither Dl nor D2 elected to give evidence or to call witnesses, I found D1 guilty of arson on the admission contained in his cautioned statement and I found D2 guilty of making the unwarranted demand with manaces."

7. It is suggested that this passage shows that the trial judge had in some way misapplied the burden of proof. It is suggested that he threw the burden onto the applicant to prove that he was not guilty and then found that he had, having given no evidence, failed to discharge that burden. We see nothing which gives us any real support to this suggestion. It is true that the final paragraph might have been more happily phrased, but we have no doubt that the trial judge was simply saying that there was credible, indeed in our view almost overwhelming, evidence to establish guilt and that as there was no evidence to the contrary he was satisfied that he should accept the prosecution evidence and find the applicant guilty.

8. This application is dismissed.

Representation:

Mr. I.G. Cross & Mr. W.S. Cheung (Crown Prosecutors) for the Respondent

Mr. Lawrence Lok (D.L.A.) for the Applicant.