The Queen v. Chan Kwai Hung

CACC000096/1985

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. McMullin, V.-P., Li, V.-P. & Silke, J.A.

Date of Hearing: 16th August 1985

Date of Judgment: 16th August 1985

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JUDGMENT

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Li, V.-P.:

1. The applicant, D3, was charged, together with three other persons, on a five count charge sheet charges. He was involved in the 2nd and 4th charges only. The 2nd charge alleged that he, the applicant, together with D1 and D2 demanded $5,400 from one Kwok Chun Tak with menaces on the 23rd November 1984. The 4th charge alleged that he, on the 24th November 1984, with D1 and D2 demanded $5,900 from Kwok Chun Tak with menaces.

2. The prosecution evidence gave a detailed story of the events which occurred over a two-day period, namely the 23rd and 24th November. The victim Kwok was a taxi driver who knew the 4th defendant (D4) and who introduced him to d1 about April 1984. On that occasion D1 made overtures to Kwok to join D1's triad society. Kwok said he would think it over but did not give any definite reply.

3. In the early hours of the 23rd November, Kwok went to work. His wife was at home with their children. She was wakened by noise outside. She saw ten odd persons making a noisy sence. She told them to keep quiet in somewhat crude language. At about 2 a.m. Kwok returned and witnessed the disturbance. He saw D1, D3 and D4 present. However, a person who acted as mediator stopped the argument. Nonetheless, there was some unpleasant feeling.

4. At about 5 p.m. on the 23rd November 1984 Kwok and his wife left home for a walk and were stopped by a man. They were taken to meet D1, D2 and D3. On that occasion D1 still complained of the conduct of Kwok's wife. D1 was in a hostile mood. Kwok apologised and asked D1 to forget the matter. Kwok's wife begged for help. D3 told her that they must wait for the return of D4.

5. D4 failed to turn up. At 6 p.m., Kwok and his wife went to beg D1 and D2 to forgive them. D1 told Kwok's wife to go home first. After she left, D1 told Kwok to give him face in the form of "five lakes and four seas". Then D4 arrived. D1 told Kwok to go home so that D4 would visit later. At that moment Kwok was very scared because D1 told him that he and his friends were triad people and that D1 could beat up the family.

6. About 7 p.m. that day, D4 went to Kwok's home. He told him that by "five lakes and four seas" D1 meant five thousand and four hundred dollars. In addition, Kwok must take them to a ballroom for one night. Kwok said that he had not so much money. D4 said he would see whether he could help.

7. Kwok had some friends in the police station in Shatin. He reported the matter to them and was gtiven certain advice on the 24th November. On his way home Kwok saw D2. He asked for D1 and he was told to wait. At that moment D3 came along. Kwok begged D3 for help. D3 said "I'm afraid I can't help you, just pay $5,400. As to the dance of $10,000 I'll say something". At this point D1 came out. D1 and D3 had a chat. D1 then revoked his demand for a dance but asked for a meal in lieu. On that occasion D1 repeated his threats. Kwok asked for time to raise the money. It was arranged that they should meet at 8 o'clock at a food-stall of the Yuen Chau Kok Temporary Housing Estate.

8. Kwok was given $500 in a red packet by the police. The serial numbers were recorded. At 8 p.m. Kwok saw D1 and D2. D1 asked Kwok for his identity card, D1 put down the identity card number on a piece of paper. He asked Kwok to sign on the piece of paper which turned out to be an I.O.U. D2 said "It is your luck to have the matters settled so peacefully". Then they walked to the cooked food-stall. D3 then came along. Kwok told D3 to give the $500 to D1. D3 asked Kwok to go to one side and said "I can't help you much, I don't belong to their group". However, Kwok handed the money to D3 who in turn gave it to D1.

9. At the end of his evidence Kwok said: "D4 is my friend and has helped me and D3 had tried to help me and they might have dipped their fingers in this to help me but with no criminal intent". The judge quite rightly observed that this was a matter for the court and not for Kwok.

10. Such was the evidence against D3 in respect of both the 2nd and the 4th charges.

11. D3 elected not to give evidence. In his reasons for verdict the trial judge referred to certain evidence he thought to incriminate D3 in respect of the 2nd charge. He said:

"D3 acted in concert with Tsoi and D3 throughout the period of 2 a.m.23/11/84 to shortly after 8 p.m.24/11/84 in terrorizing P.W.1 sometimes Tsoi is with D2, D3 and D4 sometimes with one or other or with the combination of them. Plainly there is a relationship between D1, D2 and D3. "

12. He observed that the menaces operated in the mind of Kwok as to the injury to his wife and family. He said that they were clearly made with a view to gain by D3 and his associates.

13. It appears that the judge was referring to the presence of D3 at 2 a.m. on the 23rd November when the parties were making a noise and threats were uttered. At 6 p.m. D3 happened to be there and when D1 asked Kwok to wait for D4, D3 also told Kwok to wait until D4 returned. Then there was the incident where Kwok begged D3 for help. D3 was present when D1 repeated his threats. There is no evidence to show whether D3's presence was planned or was other than coincidental. It was Kwok who asked D3 for help since he (Kwok) had not so much money. There was no evidence that D3 had prior knowledge of the sum demanded. In response to Kwok's request all D3 said was that he was prepared to speak on Kwok's behalf about waiving the demand for dance hall entertainment and that Kwok should pay $5,400. The reason why Kwok asked D3 to help was that D3's wife used to teach his daughter.

14. The judge, we think, placed too much weight on that part of Kwok's evidence where he said that "Whenever he saw any of the defendants he became frightened except as to D4". However Kwok also said D3 was trying to help him. So much for the matter of D3's participation or association. There appeared to be no direct evidence that D3 was acting in concert with D1 and D2 in the demands for money.

15. The trial judge's reasons for verdict on the 4th charge were more or less the same. He said that at 6 p.m. on the 24th November Kwok was on his way to his hut when he met D3 and D1 and D3 told Kwok to pay the $5,400 and to give a meal. That was a misdirection of fact. Although D3 told Kwok to pay $5,400 and said he would speak on his behalf about the dance hall entertainment, it was D1 who changed the demand to the giving of a meal. This was a reduction of D1's initial demand for a much larger sum and was the result of D3's plea on behalf of Kwok. The judge said that D3 acted in concert with D1 and that the menaces of D1 throughout the period operated on the mind of Kwok. However, when Kwok handed the $500 to D3, the latter said "I can't help you much, I don't belong to their group". That is at least an indication that he was not associated with D1.

16. Learned counsel for the applicant advanced no less than seven grounds of appeal but he felt that it was sufficient to raise only the points about misdirection of fact and lack of evidence to support a joint venture. Basically the complaint is that the conviction of D3 is unsafe and unsatisfactory.

17. We find that: there was no sufficient evidence to show that the presence of D3 on these several occasions on two days was planned. There was not sufficient evidence that he was acting in concert with D1 when the demands with menaces were made. We think that there is sufficient doubt in the evidence as to D3's role in the affair to compel us to say that we cannot regard the verdict as safe and satisfactory.

18. Unfortunately we have only a Reasons for Verdict tailored to D3. We do not have the reasons in the case overall. D4 who was acquitted was one of the joint defendants. We do not know why D4 was acquitted. On the evidence it would appear that D4 was much more involved with D1 than was D3. This adds to our doubts as to the propriety of D3's conviction. We grant leave to appeal against conviction. We treat the application as the appeal proper. The appeal is allowed. The conviction is quashed. The applicant is now discharged.

Representation:

Mr. Andrew Macrae (R.J. Oliver & Co.) for appellant

Mr. Dyke (D.P.P.) for respondent