R. v. Leung Wing Tat and Another

CACC000411/1994

IN THE COURT OF APPEAL

1994, No.411
(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P. and Mortimer, J.A.

Date of hearing: 7 June 1995

Date of judgment: 7 June 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicants faced two counts. The first was a charge of blackmail which particularized that they on 2nd December 1992 inside Pak Lai Laundry, No. 9, Fu Yan House, Fu Shan Estate, Wong Tai Sin, with a view to gain for Tai Kong Keung (Mr. Tai)and themselves made an unwarranted demand for $39,000 from Tam Wai-wah (Mr. Tam) with menaces. The second charge was of common assault which alleged that, at the same premises, they assaulted Tam Wai-wah. They were convicted on each count after trial in the District Court before Whaley D.J. and sentenced in each case to 16 months on the menaces charge and one month on the assault charge. The sentences were ordered to be concurrent. Each applicant now seeks leave to appeal against conviction.

2. It was the prosecution case that in May 1992 $39,000 was paid to Mr. Tam in advance by Mr. Tai for decoration work. The work was not completed and what was done was, allegedly, unsatisfactory. In October 1992 Mr. Tam was locked out of the premises and it was the Crown case that the applicants went in December 1992 on the instruction of Mr. Tai to seek repayment and that when they were so doing there was a demand with menaces and an assault. The prosecution evidence came from Mr. Tam and his sister. For the defence evidence came from Mr. Tai who told of the instructions which he gave with regard to the collection of the $39,000 from Mr. Tam which he said should be repaid to him. The applicants gave no evidence. There were however two cautioned statements in which there was a denial that there had been any menaces or assault but an admission that there had been an attempt to recover the money.

3. Mr. Hemmings, who appears for the applicants today, submits, in his first ground, that the trial judge misdirected himself in respect of material matters and in particular that he was wrong in holding that the evidence of the sister, who was PW2 at trial, "broadly confirmed" the evidence of her brother, Mr. Tam, who was PW1.

4. The trial judge in his findings stated:

"PW1's sister Miss Tam Lai Yung gave evidence which broadly confirmed PW1's to the effect that the two men did arrive at her shop and a dispute developed with PW1, she saw 'the fat one' slap PW1 and heard someone demanding money from him, and saw PW1 hand money over. I note that she said the money was handed to the fat one (whereas PW1 had said it was to D1 he gave it). She felt very frightened by these developments. She said she was busy serving customers, so she was not present all the time."

It was suggested that the evidence did not, when analysed, give any real support to the evidence of the brother. The trial judge, however, made plain by setting out her evidence that he was under no misapprehension as to what she had said. He was clearly indicating by using the words "broadly confirmed" that he was not relying upon her evidence for exact and explicit support for that of her brother. He was saying no more than the words indicated - that it gave "broad" support for the brother's evidence. The suggestion that he was not entitled to take that view of her evidence is, we are satisfied, without weight.

5. Ground 7 submits that the trial judge failed to have due regard to the fact that PW1's evidence was not materially supported by PW2 and, to the limited extent that it was so supported, failed to have due regard to relationship between PW1 and PW2. This ground to a large extent traverses the matters covered by ground 1. We need add only that we have no doubt that the judge never lost sight of the fact that he was dealing with the evidence of a brother and sister.

6. In Ground 2 it is suggested that the trial judge misdirected himself by mistakenly holding that the 1st defendant had said in his cautioned statement that Tai had offered him $11,700 as a reward for collecting the debt from PW1 whereas the 1st appellant had actually said that it was not Mr. Tai but his unnamed friend who had made the offer. Mr. Hemmings submitted that this was an important error as the judge placed weight upon his mistake when holding that he had doubts as to the credibility of Mr. Tai, the only defence witness.

7. There were two relevant exchanges in the statement of the 1st defendant:

"Question(10)	Did you ask for any reward for collecting money from TAM Wai-wah for TAI Kong-keung?
Answer(10)	I did not ask for, but Mr. Tai said that he would give me 30% as reward."

and later:

"Question (15)		You mentioned that Mr. Tai said that he would give you 30% as reward. When did he tell you?
Answer (15)		In mid-November, but it was not Mr. Tai who told me. It was my friend who instructed me to collect the money who told me."

The answers read together plainly indicate that the applicant was saying that the offer was that of Mr. Tai but that it came to him through his friend. Indeed such an offer could, sensibly, only have come from Mr. Tai. He was the only person who had an interest in recovering the money and who would have been prepared to offer a reward for its recovery. The judge was entitled to take the view that any reward offered was offered by Mr. Tai and to disbelieve Mr. Tai when he said that he had not made any such offer. There is nothing in this ground.

8. Grounds 3, 4 and 5 canvass issues of fact which depended upon the credibility of the witnesses. These were essentially matters for the trial judge. We are satisfied that he gave careful attention to the evidence and that the conclusions to which he came as to credibility were ones which he was entitled to reach. There is nothing which would properly allow us to interfere therein.

9. In ground 6 it is urged:

"The Learned Judge failed to give due weight to the evidence of DW1 and to the fact that the caution statements of the two appellants were wholly consistent with their defence. Moreover the Learned Judge wrongly found that there was an inconsistency between the answers given by the defendants in their respective cautioned statements. The first appellant did not admit that 'they' had received $1,000 but stated that PW1 gave 'me' $1000. D2 simply stated that he did not see the first appellant collect money from PW1."

Neither of the applicants gave evidence. Their defence was contained in their cautioned statements. The trial judge was aware of this and, indeed, adverted to the cautioned statements in his reasons. At the end of the day, however, he accepted the evidence of the prosecution witnesses and was occasioned no doubt by the protestations of innocent conduct contained in the cautioned statements. As for the suggestion that the judge wrongly found an inconsistency between the answers given by the defendants in their respective cautioned statements, we say no more, bearing fully in mind what we consider was an overly particular analysis by Mr. Hemmings of the words used by the trial judge, that we are satisfied that there was no material misinterpretation of the evidence.

10. Finally in Ground 8 it is urged that there was no basis for the finding by the judge that either the threat or the assault arose as part of a joint enterprise. There is no merit in the suggestion. There was clearly evidence of joint enterprise upon which the trial judge was entitled to act as he did. The grounds in this appeal have almost wholly concerned themselves with matters of fact and credit. As we have indicated these were essentially for the trial judge and nothing has been argued which in any way calls for our interference in his findings thereon.

11. The applications for leave to appeal against convictions are refused.

Representation:

Mr. A.A. Bruce, Deputy Crown Prosecutor (Ag.) for Crown/Respondent.

Mr.John Hemmings (Messrs. Tang, Wong & Cheung) for Applicant.