HKSAR v. Lo Kin Heng

CACC000394/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 394
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 27 November 1998

Date of delivery of judgment: 27 November 1998

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J U D G M E N T

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

1. The Applicant was convicted after a trial in the District Court before Deputy Judge Jenkins of assault occasioning actual bodily harm, false imprisonment and criminal intimidation and was sentenced to a total of 15 months imprisonment. He now seeks leave to appeal against his convictions.

2. The charges were in this form:

"1st Charge
Statement of Offence

Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212.

Particulars of Offence

LO Kin-heng, on the 24th day of August, 1997, Room 3, Block A, 16/F., Kam Wah Building, No. 831K, Canton Road, Kowloon, in Hong Kong, assaulted SO Sau-ling, thereby occasioning her actual bodily harm.

2nd Charge
Statement of Offence

False imprisonment, contrary to Common Law.

Particulars of Offence

LO Kin-heng, on the 24th day of August, 1997, at Mongkok, Kowloon, in Hong Kong, unlawfully and injuriously imprisoned SO Sau-ling and detained her against her will.

3rd charge
Statement of Offence

Criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, Cap. 200.

Particulars of Offence

LO Kin-heng, on the 29th day of September 1997, in Hong Kong, threatened SO Sau-ling with injury to her family members, with intent to alarm the said SO Sau-ling."

3. The prosecution case was entirely dependent upon the evidence of the victim Miss So. According to her evidence she had earlier in the year cohabited with the Applicant. It was she who terminated the cohabitation.

4. Some time after this she met the Applicant by chance in Mongkok. He was with some male friends. She said that he grabbed hold of her and pushed her into a car. The men who were with the Applicant also entered the car. It was then driven to the premises where she had resided with the Applicant.

5. The Applicant demanded $7,000 from her. She explained to him that she didn't have any money whereupon he assaulted her. He hit her in the face and on her back and she fell down injuring her elbow. She was not allowed to leave the flat for about an hour. It was only on her insistence that she had to go to work that she was released.

6. She did not make any report to the police.

7. Towards the end of September her mother told her that the Applicant had attempted to communicate with her on the telephone. She then called the Applicant. He repeated his demands for $7,000. When she refused his request he threatened her that if she didn't pay he would harm members of her family. She was frightened by this and made a report to the police.

8. The defence case was that the incident on 24th August had never happened and that he had not spoken to Miss So on the telephone late in September. The Applicant went into the witness box and gave evidence to that effect. He also called his mother as a witness. She said that the Applicant had been at home with her from 6:00 p.m. in the evening onwards on 24th August.

9. The Judge was satisfied that Miss So had given a truthful and accurate account of what had occurred and convicted the Applicant as charged.

10. The 1st Ground of Appeal is that the conviction is against the weight of the evidence. It is hard to see how this ground can be maintained in the light of Miss So's evidence.

11. 2nd Ground is in this form:

"2. The learned judge failed to evaluate the evidence and/or erred in ruling that the Prosecution had proved the Prosecution's case beyond all reasonable doubt whilst

(1) there were quite a few apparent discrepancies and contradictions between the Summary of Facts and the evidence of PW1 (who was the only witness and who was the ex girl friend of the Appellant); PW1 gave contradictory accounts as to how and by whom and in what manner she had been taken to the place where she was detained; for how long she had been detained there and what had made the Appellant released her; she made no mention of the subsequent "many phone calls" allegedly made by the Appellant to her home.

(2) The quality of the evidence against the Appellant was poor; PW1 gave no good explanation to the wrong date of the alleged incident of false imprisonment; after repeatedly refusing to answer, she only reluctantly and vaguely confirmed to a leading question from the bench that it was due to a mistake; contradictory explanations were given by PW1 as to why she did not report the false imprisonment incident to the Police in August but only in September; contradictory accounts were given by PW1 as to how and what injuries she had suffered."

12. The real complaint here seems to be that the victim's evidence was rather more detailed than the very brief summary of facts. It is true that the victim did not give evidence concerning the 'many telephone calls' but this is hardly a good reason for rejecting her testimony.

13. It is also true that the victim was very reluctant to be cross-examined and did initially give the wrong date for the false imprisonment and assault. It is possible that this may have created difficulties with the alibi evidence. However there is nothing in the Reasons for Verdict which explains how it was that the Applicant and his mother were able to identify the 24th August as being the day when he spent the evening at home.

14. Essentially these were all matters for the Judge to determine. He had the advantage of having the witnesses before him giving evidence.

15. Before us, Mr. Hung who represented the Applicant submitted that the Judge should have alerted the defendant to the possibility that the victim's evidence may have been at variance with her statement to the police. We do not consider that it was incumbent on the Judge to assist the Applicant in this way having regard to the relatively insignificant inconsistencies which were being referred to. This was apparent from an examination of Miss So's two statements to the police. It is also clear that the Applicant did in fact have the statements.

16. The 3rd ground contains a complaint that the Judge did not sufficiently assist the Applicant who was unrepresented at his trial. It is evident from the transcript of Miss So's evidence that the Judge did render assistance to the Applicant in addressing relevant questions to her.

17. It is not possible to say from the material before us how much background guidance and help was given to the Applicant. This ground can only be maintained if an application is made for a transcript of the whole trial. This was not obtained and there is no merit in this ground.

18. The 4th ground deals with matters coming within the province of the 2nd ground. It is however implicit from the Reasons for Verdict that the Judge accepted Miss So's testimony and disbelieved the Applicant's thus effectively rejecting the alibi evidence.

19. Mr. Hung has urged upon us that this is a case where there must be a lurking doubt. In support of this he refers to the previous relationship between the Applicant and Miss So and the fact that it was terminated in acrimonious circumstances. There was also the obvious reluctance of the young lady to be cross-examined. In addition to this Mr. Hung referred again to the minor inconsistencies between the contents of the summary of facts and evidence given by Miss So. It has to be said that there were no major inconsistencies in this connection. Also the other matters referred to by Mr. Hung would have been carefully weighed and considered by the Judge. This is not a case where it can be said that there is a lurking doubt. The convictions were not unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr. John Reading, S.A.D.P.P. (D.P.P.) for Respondent

Mr. Andy Hung assigned by D.L.A. for Applicant