The Queen v. Leung Ah Pang

CACC000368/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Yang & Silke, JJ.A.

Date of Hearing: 27th November, 1985

Date of Judgment: 27th November, 1985

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JUDGMENT

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Silke, J.A.:

1. The Applicant and two other men were charged with two offences. The first being blackmail of one LAM Ho-fat: the unwarranted demand being the sum of $20,000, and the second the false imprisonment also of Mr. Lam. The two other accused who were LAM Kam-chau, D1, and CHU Yee-cheung, D3, the Applicant was D2 (and I shall refer to them for clarity in that fashion), were additionally charged with an assault occasioning actual bodily harm upon Mr. Lam. D2 was convicted and sentenced to a total of 9 months' imprisonment. He now seeks leave to appeal against conviction.

2. These charges arose out of an incident on the 29th of April 1985 which began at a fruit market in Yaumati. Mr. Lam had gone there to buy fruit, and another man had also bought fruit, from a Mr. Yeung who was the third prosecution witness. The baskets of fruit were laid aside, Mr. Lam saying that he was waiting for the lorry which he had hired to take it away for him. A person - later identified as D3- came up to Mr. Lam and accused him of taking the wrong fruit. He was shortly thereafter joined by two other persons who were identified as D1 and D2. D3 made a demand for compensation and there was an assault upon Mr. Lam at the fruit stall. Mr. Lam says he agreed to pay, the sum then being referred to was apparently $3,000, but that he "willingly agreed to pay because he had no choice". He would not have paid if he had a choice.

3. Mr. Lam, and I am taking these facts from the evidence that he gave in the trial, said that he was then forced into a taxi. He was pushed, followed to the backseat by D1 and D3 and with D2 in the front-seat. The taxi went to a restaurant where Mr. Lam says he was pushed out and was taken into that restaurant. There was a further assault perpetrated upon him at that place by D1 and D3. They had all been seated at a table with Mr. Lam between D1 and D3 and D2 opposite. The compensation figure rose to the sum of $20,000 and all three accused were present at the time D3 made that demand. Mr. Lam went on to say that when he said he had no money D3, and D1 and D2 were still present, said that if he had no money to pay his legs would be hit and broken. Some police officers then arrived. D2 gave the appearance of attempting to get away. Mr. Lam himself was seen in a distressed condition and complained immediately of the assault and of the demand.

4. There was evidence, resulting from the medical examination of Mr. Lam on the same day, that Mr. Lam had three areas of bruising over the anterior chest wall, and there was bruising over the sternum area, lower part, and of two areas above the nipples. These were all recent bruises. The stall owner, Mr. Yeung, gave evidence and this results in one of the grounds which had been advanced to us by Mr. Poll, who appears in this Court for D2, viz: that there are discrepancies sufficient as between Mr. Lam and Mr. Yeung to cast doubt upon the version of the incident given by Mr. Lam. In the course of the trial, neither D1 nor D2 gave evidence but D3 did. There were two witnesses called generally on behalf of the defence. One of them being a Mr. LO Lap.

5. In respect of the discrepancies as between Mr. Lam and Mr. Yeung, certainly inconsistency did exist. One of them being that Mr. Lam said he had agreed to pay, and Mr. Yeung said that he had not agreed to pay the demand made at the stall. Mr. Lam had said that he was assaulted at the stall, Mr. Yeung was silent upon this aspect. But I note that he was not cross-examined. Of this in the course of his detailed Reasons for Verdict the Trial Judge said, at p.9:

"Except as to details I found that it (and that was the evidence of YEUNG) generally supported P.W.1's version as to what took place at the stall. At any rate, it is not inconsistent with what P.W.1 in substance testified on that incident.".

He also found corroboration of Mr. Lam's evidence or, to be more accurate, support for it in that of the two police witnesses who arrived at the restaurant and from the medical evidence to which I have referred.

6. Mr. Poll has urged upon us that, from a common sense point of view, unless there were to be merely negotiations and no more, why should these persons go to the restaurant, a public place, in the first instance, and that this common sense point of view supports the evidence given at trial by D3 who said in effect that it was Mr. Lam who instigated the trip to the restaurant. There is other evidence that Mr. Lam had, at the stall, attempted to get his brother to contact the person LO Lap, apparently as some form of intermediary.

7. Mr. Dale, who appears for the Crown in this Court, has pointed out that the Trial Judge has had the opportunity of seeing the witnesses give their evidence and was aware that Mr. Lam was not a very articulate witness. He was however satisfied that he was a witness as to the truth.

8. The other main issue, that is apart from the possible incredability of the evidence of Mr. Lam, raised by Mr. Poll was that, even on the evidence as it stood, there was not sufficient to attach D2 to the two offences for which he was charged and certainly not sufficient to go far enough as to prove his guilt. But he was present at the stall,, he did see the incident that took place there. If Mr. Lam is to be believed, and the Judge did believe him, he was present when Mr. Lam was forced into the taxi. He went in that taxi to the restaurant. He was present at the restaurant at the time that the assault Mr. Lam described occurred and when the demand for money and the "break-leg" threat took place. He made no attempt to depart from the scene until the police arrived when he attempted a precipitated departure which was restrained.

9. That then was the evidence, for D2 himself, as I have said, did not give evidence, upon which the Judge had to come to his conclusions. We do not think that this conviction was in any way unsatisfactory or unsafe. We think that the Trial Judge was entitled to come to the conclusions which he did on the evidence which was before him. The application for leave to appeal against conviction is refused.

10. We have been asked to consider an application, very much out of time, for leave to appeal against sentence. We appreciate the reason why, from the particular Counsel concerned, the application is late and there is certainly no blame to be attached to him for raising it at his point. But we are not prepared to exceed to the application for extension of time.

Representation:

Michael Poll, Esq. (Chung, Kwan, Chan & Evans) for D2.

C.J. Dale, Esq. for Crown/Respondent.