The Queen v. D1 Wong Yin Fat and Others

CACC000507/1985

IN THE COURT OF APPEAL

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BETWEEN

Coram: Hon. Yang. J.A., Hon. Power and Hon. Penlington, JJ.

Date of hearing: 13th June 1986

Date of delivery of judgment: 13th June 1986

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JUDGMENT

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Power, J.

1. The three defendants Wong Yin Fat, Kwok Chok Hung and Chan Loy Fat pleaded not guilty to joint charges of blackmail and false imprisonment. Further the 3rd defendant pleaded not guilty to a charge of wounding and the 2nd defendant pleaded not guilty to a charge of robbery.

2. The victim in all charges gave evidence that the 3rd defendant had introduced a man called 'Ah Shing' to him in January 1985 and that he had carried out a business transaction in China in partnership with Ah Shing He said that in June or July 1985 he met the 3rd defendant, and the 2nd defendant and the 3rd defendant demanded $10,000 from him as a fee for having introduced Ah Shing. He said that he refused this demand and next saw the 2nd defendant with another man on the 11th of August. He then detailed a series of events in which the 1st, 2nd and the 3rd defendants and other persons joined during which he was threatened, assaulted and imprisoned. He said that during the course of three incidents, $1,000 and a Dupont pen were taken from him and that later, when they got to his home, he was forced to write a promissory note The matter was brought to the attention of the police by one of the relatives to whom he was coerced into making a telephone call. In due course, the police having gone to a designated meeting place, they apprehended the let and 2nd defendants when they came to that place in company with the victim. The 1st defendant elected to give no evidence. The 2nd defendant gave evidence in which he denied all of the charges of wrongdoing which were made against him and said that, in fact, the victim had owed him and the 3rd defendant money and that it was in an endeavour to recover this money that they were in the victim's company during the time when it was alleged that they had falsely imprisoned him. The 3rd defendant also gave evidence and he also said nothing improper had occurred. He said that the victim had sustained an injury when he fell against a steel desk.

3. Such was the evidence before the trial judge. When he came to consider that evidence he said that the victim was not a particularly nice character and he noted that he had been caught out in a lie about his past convictions. He went on to say, however, that the victim was not shaken by vigorous cross-examination and that he believed his version of what took place on the 11th and 12th of August. He accepted that the victim was held against his will, and was assaulted by the 3rd defendant with a baseball bat as a result of which he suffered a fractured arm. He accepted that the victim was blackmailed as alleged, and he believed the victim's version of how he was robbed of $1,000 and a pen by the 2nd defendant and another person.

4. The trial judge stated that he did not believe the version given by the 2nd and 3rd defendants and was satisfied that both had told lies to the court.

5. In consequence of these findings, the trial judge found the 1st defendant guilty of false imprisonment, robbery and blackmail, the 2nd accused guilty of false imprisonment and blackmail and the 3rd accused guilty of false imprisonment, wounding with intent and blackmail.

6. Each of the defendant's applies for leave to appeal against the conviction on each of the charges. There are a number of grounds common to each appeal and we shall deal with those grounds first.

7. There is a general complaint that the trial judge failed to give a proper consideration to the evidence. There is very little specific urged in this regard and, when one considers the evidence and the careful reasons for verdict given by the trial judge, it is not possible to see anything of real cogency in this ground. The trial judge made a careful evaluation of the evidence; he was mindful of the conflicts between the evidence of various witnesses and he made specific findings as to which of the witnesses he believed.

8. The second common ground was that the principal witness, the victim, when he came to give evidence, contradicted matters which appeared in the statement he gave to the Police. In his statement to the Police he said that Ah Shing took the pen and money and it was suggested that his oral evidence was contrary to this. It is true that when giving evidence, he, at first he said that the 2nd defendant and Ah Shing took away his pen and money but later said that it was the 2nd defendant who actually "pinched" it from his pocket whilst the others were assaulting him. There does not seem to us to be anything of real weight in this complaint. What the victim was saying was that while he was being assaulted two of the. principal parties in the assault were the 2nd defendant and Ah Shing and that, sometime during that assault, his pen and money were taken from him.

9. The third common ground was a suggestion that the evidence of the victim was not reliable because on his own version of matters, it would have been easy for him, on several occasions, to have made his escape if he was really being threatened as he said he was. This aspect of the matter was canvassed at length in cross-examination. It was fully ventilated and the trial judge was, nonetheless, clearly prepared to accept the evidence of the victim.

10. A fourth common ground was that the victim had known the  1st accused before these incidents, although he said in evidence that he met him for the these time at the time of the alleged offences. This again was a matter of fact. The trial judge heard the evidence and was clearly prepared to accept the evidence of the victim that he had not known the 1st accused until the incident.

11. The fifth common ground is that the principal witness is a person of bad character and that the trial judge failed to give due consideration to this when evaluating his evidence. The trial judge clearly bore in mind the sort of person he was dealing with when he was examining the evidence of the victim. He specifically stated that he was not a particularly nice character and that he had been caught out in a lie about his past convictions. Nonetheless, having seen the witnesses and heard them cross-examined, he was prepared to accept the evidence of the victim. He was not shaken in his acceptance of this evidence by the fact that the victim had, it appears, been less than frank with regard to his past record.

12. The 3rd defendant raises 2 further grounds. He suggests firstly that the doctor was interposed in an endeavour to shield the victim because he was, at that stage, in difficulty giving his evidence. We have read the record in this regard with care and there is nothing in it to suggest that there is any merit at all in this suggestion. Doctors are interposed as a matter of course in trials in these courts. It seems to us clear that the 3rd defendant is endeavouring here to capitalise on an everyday and innocent event.

13. The 3rd defendant finally complained that a receipt produced to the court was a forgery. This was a matter for the trial judge and he clearly accepted that the receipt produced was the receipt that had been made out by the victim when he was being threatened.

14. The applicants have raised nothing which calls for interference with the convictions and their applications for leave are therefore refused.

15. There is one further matter, Crown Counsel has drawn our attention to the fact that there was no evidence of a wound having been inflicted upon the victim and has suggested that the evidence supports not a charge of wounding but one of unlawfully and maliciously causing grievous bodily harm. We are satisfied that this is so. Under s. 83A of the Criminal Procedure Ordinance we are empowered when it appears to us, and it does in the present case, that the District Judge must have been satisfied of facts which proved the 3rd defendant guilty of the latter offence to substitute for the conviction recorded a conviction for that other offence. We take that course and order that a conviction on unlawfully and maliciously causing grievous bodily harm be recorded.

16. All three accused asked for leave to appeal against sentence. The first defendant was sentenced to 3 years on the false imprisonment charge and 4 years on the blackmail charge. The only specific matter he urges in appealing against sentence is that his family are being deprived of his support by his imprisonment. He has a criminal record, having been convicted of 2 charges of theft in 1983 and one charge of conducting a unlicenced massage establishment in 1983 He was also convicted of blackmail and membership of a triad society on the 16th August 1985. The trial judge when giving his reasons for sentence said that he took into account the blackmail and triad society offences. As these convictions occurred after the present offences they should not have been taken into account when assessing the sentence. We are satisfied, in these circumstances, that the sentence of 4 years for blackmail should be reduced to 3 years. We consider this reduction appropriate also because it brings the sentence into line with the sentence of 3 years that was passed for the same offence on the 2nd defendant. Leave to appeal will be given with regard to that offence and it would be varied accordingly.

17. The 2nd defendant seeks leave to appeal against the sentences imposed upon him which were 3 years for false imprisonment, 2½ years consecutive for robbery and 3 years concurrent for blackmail. He asks the court to consider that his family will lose his support whilst he is in prison. The sentences of 3 years for false imprisonment and 3 years for blackmail which were made concurrent, are in our view perfectly proper. We are concerned, however, with regard to the consecutive sentence of 2½ years which was passed on the robbery offence. This gave a total period of imprisonment of 5½ years. Bearing in mind that the robbery was very much a part of the false imprisonment and of the overall events of the evening, we are satisfied that the totality should not have exceeded 4 years and that the robbery sentence of 2½ years should be varied to one of 1 year. Leave to appeal will be given for the purpose of allowing the applicant to appeal against that sentence and it will be varied from 2½ years consecutive to a sentence of 1 year consecutive.

18. I turn finally to deal with the sentence imposed on the 3rd accused. He was sentenced to 3 years for false imprisonment, 2½ years consecutive for wounding with intent and 4 years for black-mail - a total of 6½ years. He suggests that the overall sentence was too heavy and submits that the trial judge may have misunderstood his record, which disclosed that he had 9 similar offences of black-mail, in that he may have thought that these were 9 separate offences whereas they were 9 offences dealt with on one occasion for which he received one sentence of 3 years. There is nothing in the trial record to support this suggestion. The trial judge had before him a criminal record which showed that on the 4th of June 1981, this defendant was convicted of 9 charges of blackmail and 2 charges of theft and was sentenced to 3 years and 2 months on all those charges. This record further revealed that on 4th May 1981, he was convicted of an offence of blackmail and fined $3,000 and that on 10th July 1979 he had been convicted of burglary and taking conveyance without authority. This applicant had a bad record which included offences of blackmail. We are satisfied that the sentence of 2½ years consecutive should stand for the substituted offence and see no ground for interfering with the other two sentences. Leave to appeal against sentence is refused.

Representation:

All applicants in person

Mr Boucaut (Crown Prosecutor) for respondent