R. v. Chung Wah Kee

CACC000451/1996

IN THE COURT OF APPEAL

1996, No. 451
(Criminal)

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Coram: Hon Mortimer and Mayo, JJ.A. and Sears, J. in Court

Date of hearing: 16 January 1997

Date of judgment: 16 January 1997

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his convictions for claiming to be a member of a triad society and blackmail. The two charges arise out of the same incident.

2. The victim Mr Ko was a minibus driver. Early in the morning some time round about the end of June or the beginning of July 1995 Mr Ko was driving his minibus at Morrison Hill Road. His route was from Wanchai to Kwun Tong. He stopped to pick up passengers outside the Nam Yeung Hotel.

3. A man approached the offside of his minibus and spoke to him. He said "Old friend, this is a Yee Tong stop. If you want to play, pay $4,000 and $450 a month, otherwise go." According to Mr Ko he did not reply to him. The man stared at him and he was afraid. He left but did not at this stage make any report to the police.

4. On 13 July he was again in the vicinity. He saw the same man again who was with another man. This other man threw an object at his minibus causing some damage. The men ran after the minibus and shouted at him using foul and abusive language. After this incident he did make a report to the police. When he did so he was invited to attend at an observation post which was being manned by the police. He gave evidence that it was at this stage that he identified the applicant as being the man who had originally approached him and demanded the payment of the moneys.

5. One of the main issues at the trial was the identification of the applicant. The trial judge, HH Judge Lugar-Mawson gave detailed reasons why he was prepared to accept Mr Ko's identification of the applicant. However this was not one of the matters forming part of the perfected grounds of appeal.

6. There are two grounds of appeal. The first is that the words "Old friend this is a Yee Tong stop" attributed to the applicant were insufficient to prove beyond a reasonable doubt that the applicant was "professing and claiming" to be a member of a triad society within the meaning of s20(2) of the Societies Ordinance.

7. This ground was abandoned. It was replaced by a complaint that the said charges were in reality alternative counts. This is clearly not the case. It could well be the case that the Crown could succeed on the first count and fail on the second. This ground of appeal merged with the second ground which was lodged which is to the effect that the charge was duplicitous. That also is not being proceeded with.

8. These convictions were in no way unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr Kevin P. Zervos, Senior Crown Counsel for the Crown

Mr Graeme Mackay (DLA) for the Applicant