The Queen v. Au Hon Kit

HCMA000431/1985

IN THE HIGH COURT

BETWEEN

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Coram: Hon. Barker, J.A. (sitting as an additional Judge of the High Court)

Date of hearing: 4th June, 1985.

Date of judgment: 4th June, 1985.

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JUDGMENT

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1. In this case the appellant, AU Hon-kit, appeals against a conviction on a charge of lending money at an excessive rate of interest, it having been alleged against him that on the 12th September of last year, he lent a sum of HK$5,000 to Lam Pui at an effective rate of interest which exceeded 60% per annum which is not a loan specified in Part 2 of the First Schedule of the Money Lenders Ordinance.

2. As Mr. Bulleid, for the Crown, has quite properly reminded me and I bear it very much in mind, it must be rare for an appellate court to reach a conclusion as to the reliability of witnesses which is different from that at which the trial judge arrived. The reason for that is clear; that the trial judge had the advantage which I do not have of having seen the witnesses, observed their demeanour in the witness box and being able to draw conclusions from that. But in my judgment this is one of the rare cases where an appellate court ought to interfere.

3. The case is riddled with inconsistencies. The first two witnesses were Thai nationals whose best language was Thai and the first witness, MA Lai-har, told the court that the second witness, LAM Pui, borrowed money - she said she borrowed it on the 12th of June which was not the date alleged in the charge, but she said that there were three people in the restaurant where this transaction occurred, none of whom was the second defendant, the appellant in this appeal - so much for her. The judge, it is fair to point out, placed very little, if any, reliance on her evidence. Then one comes to the second-witness, the main witness, the victim as she has been described in the course of this hearing. She said at first,

"I borrowed some money on the 12th September, 1984 from a man called  Ah Kit, the appellant, PW1 was present."

She was then asked,

"How much did you pay back?"

And she said,

"I paid three lots of interest, $1,500 in all I paid it to the 3rd defendant, I paid it to him personally on two occasions and the first prosecution witness paid it to him on the second."

She went on,

"On one occasion when the payment was due, I had no money to pay, so I hid. Then I telephoned the 3rd defendant to say I dial not have enough money to pay him and asked him to allow me to pay later."

Then in cross-examination she appears to be saying at one point that she was told about the terms of the loan through the interpretation in Thai of her friend, the 1st prosecution witness, but then at a later stage she said in re-examination,

4. Those answers were heavily relied upon by the learned magistrate in his findings but they are totally contradictory to what she said in cross-examination and at another stage she said it was D2 who handed up the money to this appellant and at yet another stage she said it was D3. So her evidence was contradictory within itself, This confusion is worse confounded when one contrasts the evidence of the fourth prosecution witness, a police officer, who said that,

"The 2nd prosecution witness said, he, that's D3, not this appellant, was the one who took her photograph."

Whereas the 5th prosecution witness, another police officer, said that,

"P.W.2 pointed at D3 as the man who loaned her the money and took a photograph of her."

The judge in his findings, for reasons which I confess I do not understand, took the view that P.W.5 must have misunderstood her identification and it is suggested by Mr. Bulleid that that might be, because the identification was being done in Punti which was not P.W.2's best language. But equal considerations applied to the evidence of P.W.4. He might have misunderstood the identification. But when you get a main prosecution witness saying in term to a police officer it was someone other than this applicant who loaned her the money then it seems to me that, taking the evidence as a whole which one must and with every due respect to the learned magistrate, this is a conviction which is unsafe and unsatisfactory and cannot stand. For those reasons, the appeal must be allowed.

Representation:

Mr. D. B. Gunston of (Hampton, Winter & Glynn) for the Appellant.

Mr. M. Bulleid, Crown Counsel, for the Crown.