R. v. Chan Wing Kwong

CACC000398/1996

IN THE COURT OF APPEAL

1996, No. 398
(Criminal)

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Coram: Hon Nazareth, V.-P., Bokhary and Liu, JJ.A.

Date of hearing: 14 May 1997

Date of judgment: 14 May 1997

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J U D G M E N T

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Liu, J.A.:

1. Before Deputy Judge Yuen, this applicant faced a number of charges of which the robbery charge was not found to be proved against him. Accordingly, to that charge the judge returned a verdict of not guilty, but the judge convicted him of theft. That was the 3rd charge.

2. In the 6th charge, the applicant was convicted of being a triad member. He is dissatisfied with these verdicts and seeks leave to appeal against conviction in both charges.

3. The facts in the 3rd charge are uninvolved. On 5 January 1995, the applicant in the company of a group of men led by one PAK Po-wah entered a shop, the Man Fung Motor Company, at No. 7 Wai Chi Lane, Ground Floor, Shek Kip Mei. Pak was looking for the owner to make his complaint and an unwarranted demand for a money settlement. The owner was absent, but Pak's demand was not met by the owner's brother, then attending the shop. Pak pushed him onto the floor and instructed the four other men in the group to take away metal plates, parts of a casting mould, worth $3,000 and two pieces of accessory equipment to the registration number plate manufacturing machine worth $9,000. Pak who had been collecting protection money from the shop, left a message for the owner that he should personally come to redeem these articles. They were the properties of the shop. Among the people present were men known as "Woody", "Chai Tin" and "Wu Ying". "Wu Ying" the fly was the applicant. The identity of the remaining man was not given in the Reasons for Verdict. However, they had all been to the shop before and known to the owner's brother who gave evidence. It was a case of recognition, and ultimately it boiled down to credibility. Pak was on the run. In the final analysis, the judge accepted the owner's brother as an honest witness, but was his evidence reliable?

4. The case of the applicant was that he had an alibi. Therefore the evidence on the unwarranted demand and removal of properties was left unchallenged. With his clear record and the offence being one of robbery, the serious charge was said to be a fabrication by the police. He told the judge that he had gone to a wedding at the time. The groom was called; so were some other guests who attended at the wedding. The applicant was conspicuously absent from all the wedding photographs. The precise timing as given by all the wedding guests called was not satisfactorily explained to the judge who had doubts of their veracity. The judge concluded that the owner's brother was giving truthful evidence and that his view was unshaken by any of the alibi evidence adduced by and on behalf of the applicant. Not being satisfied with the proof of all the legal ingredients in the charge, she found the applicant not guilty of robbery but guilty of theft as the applicant was a member of the group responsible for the removal of the articles.

5. Next we turn to the 6th charge. The applicant gave a cautioned statement to the police, in which he said that he followed 'Woody' as a big brother and that he joined the 14K Triad Society. The judge rejected two other police statements given by the applicant but admitted his cautioned statement as a voluntary one. The applicant claimed that he was asked by 'Woody' to follow him when they were virtually children and that he had not performed any joining ceremonies, learned any poems, paid any dues or taken part in any triad activities. He said that given by a child it was not a binding promise to follow "Woody" and that he was not an expert to give evidence on triad membership. The judge admitted his cautioned statement. The judge relied on the applicant's admission that 'Woody' was his big brother whom he had followed him for a considerably long time. The judge also had regard to the applicant's statement that to his understanding, "Woody" himself was a member of triads. The judge took into account the closeness of relationship between 'Woody' and Pak who had been collecting protection money from the shop. The applicant could not have failed to appreciate his true tie to "Woody" in all these years. The applicant was a person of previously good character but the judge was really left with little alternative but to infer that "Woody" the applicant followed was a triad member. The cautioned statement coupled with the surrounding circumstances drove the judge to find him guilty as charged. There is no merits in his complaints. We, therefore, dismiss his application for leave to appeal against conviction.

Representation:

Mr Kevin P Zervos Crown Prosecutor for the respondent

CHAN Wing Kwong, applicant in person