The Queen v. Lin Ka-cheung

CACC000140/1986

IN THE COURT OF APPEAL

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BETWEEN

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Coram: Hon. Li, V-P., Hon. Silke, J.A. and Hon. Power J.

Date of hearing: 7th August 1986

Date of delivery of judgment: 7th August 1986

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JUDGMENT

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Power, J.

1. The applicant now appeals against two convictions of assault occasioning actual bodily harm. He also originally appealed against sentence but has now abandoned that appeal.

2. There were originally three defendants facing 3 charges. The lst defendant, Kong Yuk-hon, was charged with lending money at an excessive interest rate. The 1st defendant and this applicant were charged with assault occasioning bodily harm in that they assaulted one Chow Kan-fung, the male victim. The applicant and the third defendant, a Miss Chan Kam-ping, were charged with a further count of assault occasioning actual bodily harm in that they assaulted one Ng Yin-fun, the female victim.

3. The applicant in his written grounds of appeal states that he is appealing because there was no formal identification parade carried out with regard to his identification and because there were many discrepancies between the complainants' statements. He also appeals on the general ground that the complainants gave untrue statements and gave false evidence.

4. The evidence before the trial court was that on the 2nd July, the 1st defendant contacted the male victim to ascertain when he would be making the second payment of a debt which was the subject of the first charge. The evidence was that the male victim met all three defendants and was taken to a lane in Kowloon Walled City where he was assaulted by the 1st and 2nd defendants who struck him on the chest and back. It was the evidence that the applicant and the 3rd defendant then went away and fetched the female victim and that, after she indicated that she was unwilling or unable to make any payment, they assaulted her.

5. The trial judge in his statement of findings said that he heard evidence from a Dr. Shing Ming Kong that on the 2nd July he found the male victim to have bruises over his right lower eyelid and over the right and left sides of the front of his chest. He said that he also found abrasions over the lower left back and that his findings overall are consistent with allegations made by the male victim that he had been assaulted with fists and legs. Dr. Shing said that he also examined the female victim and found an abrasion on her lower lip and mild tenderness on the upper part of the chest, as well as tenderness on the central and upper abdomen. He said that these findings were compatible with allegations made by the female victim that she had been assaulted with hands and fists to the face, back, chest and abdomen.

6. In short, the Crown case was that the applicant was a standover man for a loan shark, the 1st defendant, and that, in an endeavour to force the male victim to make a payment, he and the 1st defendant and the 3rd defendant, in different combinations, assaulted the male victim and the female victim on the night of the 2nd of July.

7. The applicant and the 3rd defendant gave evidence in which they said that they had gone to the Tung Tau Estate with the lst defendant at his invitation to see whether the male victim was the former boyfriend of the elder sister of the 3rd defendant. They said that when the 3rd defendant confirmed that this as so, after having seen the male victim, the 1st defendant asked her, the 3rd defendant, if she guaranteed the debt owed by the male victim. The applicant said that he told the 3rd defendant that it was nothing to do with her and that he and she then left. There was no issue then as to the presence of the applicant at the scene.

8. The trial judge, having considered all the evidence, said that he found the story of the applicant and the 3rd defendant to be incredible. He rejected it and was satisfied beyond reasonable doubt that the charges were true.

9. The applicant, when addressing this Court, raised further matters. He suggested that the trial judge should have found the evidence of the male victim suspect as the male victim's brother revealed that he had borrowed money from loan sharks on other occasions. The applicant asked the rhetorical question: "If this were so, why had the male victim not reported on those occasions to the police that he was in the grip of loan sharks?"

10. It is difficult to see how this really assists the applicant. If this was so, then, of course, one reason why the victim did not report the matter might be that no one had ever assaulted him in an endeavour to make him pay.

11. The applicant suggested that the trial judge should have found the evidence of the female victim suspect because there was an inconsistency between her evidence and a former statement as to the work which she did. Was she a hostess or a waitress? This is a matter of very little significance indeed, the euphemism waitress is often used to describe a person who is a dance hostess because it has a more respectable ring.

12. The applicant also suggested that the failure of the female victim to make a report at an earlier time than she actually did must cast doubt upon her veracity overall. He suggested that, if her story were true, then she would have taken the opportunity, when the party was at a snack bar, to draw attention to the fact that she had been assaulted. It may well be that she could have taken some action earlier than she did; but the fact of the matter, as accepted by the trial judge, is that she took action after she arrived at her own home when she had an opportunity to use a telephone to call the police.

13. It is another complaint of the applicant that he was not identified at a formal identification parade. He says that he was identified in an informal way by the male victim and that he protested at the time at this method of identification. Indeed these facts are confirmed by the Crown. Again there does not seem to be any real weight in this complaint. There was no question on his own evidence as to his presence at the scene or as to identification generally. The only issue was whether or not he and the other defendants had participated in the assaults upon the male and female victims.

14. The applicant said finally that the trial judge was biassed against him. He failed, however, to put forward any specific matter which would suggest that there was any bias in the mind of the trial judge.

15. There was ample evidence before the trial judge to allow him to come to the conclusion to which he did come. Indeed when the evidence is looked at overall, we cannot but remark that the trial judge was perfectly justified in coming to the conclusion that the applicant was guilty as charged. We would finally observe that the applicant is fortunate to have abandoned his appeal against sentence since we consider the sentence of nine months in the circumstances was very light indeed. Leave to appeal against conviction is refused.

Representation:

Mr. Hodge (Crown Prosecutor) for the Respondent

Applicant in person