Li Kin Wah and Others v. The Queen

CACC001017/1981

BETWEEN

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Coram: Silke, Barker JJ.A. and Mayo J.

Date: 9 September 1982

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JUDGMENT

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Silke J.A:

1. The three appellants renewed their applications for leave to appeal against conviction the Single Judge having refused leave in March 1982.

2. Each had been convicted, with others, of conspiracy to arrange or assist the passage to and within Hong Kong of unauthorised entrants. Each was sentenced to a period of five years' imprisonment.

3. We refused the leave sought and stated that reasons would be given later. This we now do.

4. It was the Crown's case that two sets of two unauthorised entrants - "the immigrants" - were assisted in their passage by road and by sea from China and then by road to a place of refuge in Hong Kong. Money was to be paid for their release from that place by either relatives or by those closely connected with the immigrants.

5. This took place over a period between the 27th March and the 3rd April 1981.

6. The first set of immigrants were Miss Luk Siu Fung and her friend Miss Ching Lai Hing. The second set consisted of Mr. Cheung Shun Cheung and Miss Yeung Fung Lin.

7. A Mr. Yip Sing Kong was the fiancee of Miss Luk. He was contacted from Canton by Miss Luk who told him of her intention to come to Hong Kong. Mr. Yip advised against this. The following day he was contacted by telephone and discovered that Miss Luk had arrived in Hong Kong. As a result of the telephone call Mr. Yip had a meeting with Fung Lam - who pleaded guilty at trial and is not now before us - Yuen Shek Yin, the second defendant at trial and the second appellant now before us, and Chan Kam Wah, the fourth defendant at trial and numerically the fourth appellant now before us. I say numerically as the original third appellant in this appeal, Cheung Man Sang, had, at the date of hearing, abandoned his appeal.

8. At the meeting negotiation took place and a figure of $70,000 was asked for.

9. Subsequent to this meeting Miss Luk telephoned Mr. Yip told him of her whereabouts; he contacted the police a raid was carried out upon the premises and Cheung Man Sang was arrested.

10. The second set of immigrants, having arrived in Hong Kong, were handed over to one Leung Kam Fai.  Leung was the third defendant at trial and he pleaded guilty. He is not before us. A demand of $50,000 was made for the release of the second set from Madame Cheung Kit Ching the sister of Mr. Cheung Shun Cheung. She contacted the police and a meeting was arranged for the 3rd April at the Wong Kam Restaurant. There the police and Madame Cheung Kit Ching were met by Fung Lam and the immigrants arrived subsequently in the company of Leung Kam Fai. Two other men had, quite coincidentally, sat at a table occupied by some of the police and were heard to speak in a banner which showed them to be part of the conspiracy and they were arrested when the police pounced. These men were the first defendant, and first appellant before us, Li Kin Wah, and the second defendant and second appellant, Yuen Shek Yin.

11. Mrs. Penlington who represented the fourth appellant Chan Kam Wah was the first who addressed us in full. Mr. Remedios, who appeared for the second appellant, Yuen Shek Yin, having opened the Appeal was given time to peruse the transcript before concluding his submissions. The first appellant Li Kin Wah was unrepresented at the hearing and we heard him last.

12. Mrs. Penlington advanced several grounds of which, with no disrespect to her, we thought but one had substance. That ground, which also impinges on the second appellant's case, was:

"The learned judge erred in that he failed to direct that the witness Yip Shing-Kong was an accomplice. In consequence he failed to direct as to the dangers of convicting without corroboration in respect of this Appellant; the said Yip Shing kong was the only witness who gave sufficient evidence upon which the Appellant's conviction might be based."

13. It is accepted that the usual accomplice warning was not given in respect of Mr. Yip. But was he an accomplice?

14. Mrs. Penlington has directed our attention to several passages in the transcript which show, she submits, Mr. Yip's growing participation in the conspiracy. These relate to the phone calls about Miss Luk and the request that he prepare $70,000; the giving to him of the number of a paging machine as a contact; a further discussion about that which Mr. Yip described as "ransom"; an arrangement to meet which did not come to fruition; the later going to Miss Luk's aunt's residence where he met the fourth and second appellants and Fang Lam and his agreement there to try to raise the money; the further matters concerning the provision of an identity card for Miss Luk raised by Mr. Yip at that meeting. It was after this that Mr. Yip went to the Independent Commission Against Corruption who referred his report to the police. Then Mr. Yip contacted the paging number he had been given, agreed to a price of $50,000 and to a meeting at the Yan Yan Restaurant. Police were present at that meeting and it was then that the fourth appellant, whose alias was "Ah Tim", was arrested.

15. It is Mrs. Penlington's contention that, resulting from this evidence, Mr. Yin if not a full bloom conspirator was, at the least, an aider and abetter and thus part of the conspiracy and an accomplice. She adds that there was sufficient for the Judge to, should he be uncertain in law Mr. Yip to have been a conspirator, leave the factual issue to the jury.

16. We do not agree. Mr. Yip was placed in the invidious position of having to consider paying a ransom for his fiancee whom he had advised not to come to Hong Kong. In the contacts he had with those who held her he was, we think, feeling the water but no more. Once he was conversant with that which was going on he brought the matter to the attention of the police. We do not think him to have been a participant, in any degree, in the conspiracy and therefore not a witness in respect of whose evidence a warning to the jury was necessary.

17. Mr. Remedios, while not advancing the accomplice points in his actual Grounds of Appeal, adopted Mrs. Penlington's submissions on the point. He also advanced other grounds of appeal suggesting there to have been doubts raised by Mr. Yip's evidence as to the part played by the second appellant at the meeting in the aunt's flat. Further that the trial Judge "failed to warn the jury in the summing up that such doubts had to be construed in the appellants favour ..." Having considered the record we do not think the suggested "doubts" to be reality. The jury were properly directed upon the onus placed on the prosecution and how they should view the evidence. It was a matter for them.

18. He did however advance grounds of appeal which related to the second incident and which concerned also the first appellant. These related to the credibility of police witnesses who gave evidence of overhearing parts of a conversation between the first and second appellants in the busy Wong Kam Restaurant at lunch time on the 1st April. The Prosecution case was that the conversation was in Cantonese that Fung Lam had contact with the men; that this was the place where Mr. Yip was to make payment of the ranson money; that when Fung Lam left the table at which the first and second appellants were those two conversed in whispers; the second appellant said to the first that two persons had come and that they were the two persons worth "five dollars'' more or less and concluding "This time will be ninety per cent successful".

19. The first appellant was said to have replied "I think that they at least have a thing worth two dollars". Leung Kam Fai, and the two immigrants then arrived and approached the table where the appellants and the police were seated at which point the second appellant made a gesture to Leung Kam Fai with his right thumb indicating a place further inside the Restaurant. Arrests were made shortly after this.

20. The appellants denied any such conversation and gave an innocent explanation for their presence.

21. Mr. Remedios has levied criticism at the trial Judge's acceptance of that which he terms the opinion evidence of the constable that the references to "five dollars" and "two dollars" meant colloquially "fifty thousand" and "twenty thousand" dollars respectively. We do not think those criticisms to be justified. The constable was simply giving evidence of the local meaning in Cantonese of such expressions which would be well within his competence. The jury were properly directed and it was matter of local knowledge and for them.

22. Further criticism is made of a passage in the trial Judge's summing up wherein he made reference to the noisy state of the Restaurant and to the defence case that it was surprising that that which the police heard during a conversation which took place over a period of time was only the words we have mentioned and not other and more general matters.

23. The Judge then, a few sentences later, went on to give that which might be thought to be an explanation when he said :

"You may think, members of the jury, that this was a moment of great excitement. This is the sort of thing that might cause them, in their excitement, to raise their voices. After all, what was said was cryptic. It was not something that anybody would understand. These are matters that you have to consider, members of the jury."

We accept that there was no evidence of "great excitement" and that this passage was speculative comment by the trial Judge. It perhaps would have been preferable had it not been said but that is as far, in our view, as any criticism can go. It was left squarely for the jury to evaluate the evidence on this point. They were entitled, in the light of all the circumstances, to accept the conversation as involving the appellants in the conspiracy charged - and the use of the phrase "you must look to the inherent probabilities" later on in the summing up can in no way be considered a misdirection on the burden of proof.

24. We have gone through carefully the remaining grounds of appeal filed on behalf of the first appellant, and have heard that which he wished to say concerning them. We do not think them to have any substance.

25. In the event the application for leave to appeal against conviction by the first, second and fourth appellants were refused. The loss of time of thirty days in each case ordered by the single Judge is confirmed. We do not increase this period.

Representation:

1st Appellant. in person.

Leo Remedios Esq. (Fan & Fan) for 2nd Appellant.

Mrs. Penlington (Kwan & Kwan) for 4th Appellant.

John Bolton Esq. for Crown/Respondent.