HKSAR v. Lee Chun Wai

HCMA000483/2004

HCMA483/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.483 OF 2004

(ON APPEAL FROM TMCC 3415 OF 2003

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Coram: Deputy High Court Judge D. Pang in Court

Date of Hearing: 14 July 2004

Date of Delivery of Judgment: 23 July 2004

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JUDGMENT

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1.The appellant was convicted after trial of one charge of 'Blackmail' and one charge of 'Theft'. He now appeals against these convictions.

Parties and charges

2.The appellant was D2 at trial. His convictions as stated above arose from Charges 4 and 2 of the Charge Sheet. The allegation was that he made an unwarranted demand for and then took away some money from a female hawker. This he allegedly did with D1 and 3 on the night of 21 October 2003. Another charge of 'Blackmail' (Charge 1) had it that an initial demand was made by a group of men to the victim on the 20th. Being the only one named in the charge, the appellant was however acquitted of it on poor identification. A final charge (Charge 3) had D1 'Resisting the police' when ambushing officers surfaced after Charges 4 and 2 were completed.

The facts

3.The victim hawker was PW1. She sold stinky bean curd on the pavement of Castle Peak Road in Yuen Long. At about 11 p.m. on the 20th, she was approached by five to six men one of whom said, "Hey lady, give me $300 as protection fee." This man, allegedly the appellant, also told her that if she paid the money, she could sell things anywhere. PW1 asked if she could pay less and the same man replied that he would go back and asked his "big brother". He also told PW1 to be there the following night.

4.PW1 did not have the money asked for, and was afraid that she might be beaten up, so she reported the matter. As a result, she was taken back to scene on the night of the 21st, by PW2 a WPC posing as her assistant. Also lying in ambush were other officers. Eventually, a number of men appeared, the appellant and his co-defendants. The appellant said, "Lady, it was mentioned last night, the sum is $300, you should know that." PW1 asked if it could be less but was refused by him. PW2 then handed $300 marked money to PW1 who gave it to the appellant. At this point, the ambushing officers rushed out and made their arrests.

5.That, in a gist, is the prosecution's case according to PW1. It is consistent with the evidence of PW2 except, according to PW2, PW1 did put the amount at $200 when bargaining with the appellant. More importantly, PW2 did say that she had asked the appellant whether he would "come to collect the money every month" and was answered in the affirmative. This happened after she had handed the money to PW1 but before it was given to the appellant.

6.Turning to the appellant, he denied being present on the night of the 20th. As regards the 21st, he said he had just finished supper with D1 and 3 when he met a friend "Kit Chai" who, because of something urgent, enlisted his help to collect a debt from a 50-year-old female hawker selling stinky bean curd near the LRT station. Kit Chai was persistent because he had reportedly told the hawker that he would be there on the previous night. It was in those circumstances that the appellant had gone looking for PW1. In any event, he had said nothing more than, "Sister, you already know that the sum is $300, it was mentioned last night." He refused to accept a lesser amount because he knew the debt was for $300. He denied telling PW2 that he would come back every month. He denied having any conversation with PW2. He accepted that he was arrested after pocketing the money.

7.In the end, the Magistrate accepted the evidence of the prosecution and rejected that of the defendant. He nevertheless acquitted the appellant of Charge 1 because first, the sighting on the 20th was fleeting and second, there were significant differences between the descriptions that PW1 gave of the man making the demand and the appellant.

The appeal

8.Two grounds have been filed :

(1)	Ground 1
	"The convictions are unsafe and unsatisfactory as the learned Magistrate had failed to resolve material discrepancies between the evidence of PW1 and PW2 as to whether or not the words 'will you come to collect the money every month' were uttered by anyone or not; and furthermore the statement of findings are so muddled that it appeared that both PW1 and PW2 gave evidence to the effect that the words 'will you come to collect the money every month' were said."
(2)	Ground 2
	"The convictions are unsafe and unsatisfactory as the crucial evidence used by the learned Magistrate to convict the Appellant was based on individual parole evidence that raised new and significant allegations against the Appellant's interest for the first time during the trial, and these matters were never previously recorded in their respective witness statements made prior to the trial."

9.I will deal with both grounds together, for the weight of the arguments involved is best considered in culmination.

10.The "new allegations" referred to in Ground 2 are (a) the group's reference to a "protection fee" in PW1's account of the initial demand and (b) the appellant's acknowledgement of a monthly obligation in PW2's evidence. These were significant details because, if accepted, and put in the same context as the other uncontested utterances of the appellant, there could be no innocent explanation to the appellant's action. The criticism, however, is that these details were not to be found in PW1's or PW2's witness statements, thus calling into question their veracity.

11.Taken alone, Ground 2 would have very little headway. The transcript shows that the omissions had been fully canvassed by defence counsel, and the Magistrate was entitled to believe as he did that for simple-mindedness and slippages in memory, the omissions were genuine and innocuous. The problem, as the argument goes, is that the point about the monthly obligation was not only not to be found in PW2's statement, but it did not have the support of PW1's evidence. This raises further questions about whether the Magistrate had demonstrated sufficient care and sensitivity to the authenticity of this piece of evidence. It raises questions about whether it was safe and satisfactory for the Magistrate to use it to infer guilt.

12.The last-mentioned point is, in substance, the complaint in Ground 1. The crux of the criticism here is that having glossed over the discrepancy in question, the Magistrate gave PW2's account full weight, and used it as support for concluding that the appellant was in one with the group on the 20th. For illustration, the appellant points to the following passages in the Statement of Findings :

"37. [PW1's] evidence made sense and her account of what happened on 21.10.2003 was corroborated by that of PW2 in the material particulars. It surely would not be a daily happening that one would be demanded money by other people and it would be something one would be difficult to forget. I have no doubt that PW1 was able to remember what happened in the two days...

41. Although there were discrepancies in [PW2's] evidence and that of PW1, such as whether PW1 had suggested $200 when she asked the Appellant if she could pay less. Such discrepancies are trivial in nature and are to be expected from witnesses who gave evidence independently from their recollection of the incident...

62. There was no evidence that the Appellant was present when the demand was made on 20.10.2003. However, when the Appellant made the demand on 21.10.2003 he referred to the matter of the previous night. I had already rejected his evidence and that of D1. It could not be just a coincidence that he made a similar demand totally unconnected with the demand made by the group the previous night.

63. More importantly, when PW2 asked whether he would come to collect the money every month he said yes. This was consistent with the demand of protection money. The only reasonable and compellable inference was that the Appellant was fully aware of the demand and threat made by the group on 20.10.2003 and he was furthering the demand on 21.10.2003 and was acting in concert with them."

13.Having carefully considered all the arguments, I am persuaded that there is merit in the appellant's complaint. The above passages were all that there is to the Magistrate's treatment of the subject. Whether by chance or by choice, the Magistrate had skipped the question of the monthly payment when dealing with the discrepancies between PW1 and 2. In any event, he pronounced these discrepancies trivial and the evidence of PW1 corroborated Then, in an unexpected twist, he contradicted himself and made the question of the monthly payment a major factor against the appellant. In so doing, there is no indication that he had, at the front of his mind, the fact that this detail was not even in PW2's witness statement.

14.Like the Magistrate, I find the appellant's defence completely ludicrous. But that is only half the story. There are questions about how the Magistrate approached a crucial subject. These questions might not have arisen if deeper and subtler treatment had been given. As it is, I feel I must allow the appeal.

Conclusion

15.The conviction is quashed, and the sentence set aside.

Representation:

Mr P.K. Madigan, SGC of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Messrs Chan & Tsu, for the Appellant