The Queen v. Lau Wai Kit

CACC000495/1987

BETWEEN

Coram: Hon. Yang, Ag.C.J., Clough & Power, JJ.A.

Date of Hearing: 23rd February 1988

Date of Judgment: 23rd February 1988

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J U D G M E N T

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Power, J.A.:

1. The applicant faced charges of blackmail and theft. The first, that. of blackmail, alleged that he on 8th September 1986 at Sun Tong Restaurant, Queen's Road West, together with persons unknown with a view to gain for himself or another, made an unwarranted demand of $5,500 U.S. Currency, from the victim LAM Chun-kam, with menaces. The second, the charge of theft; alleged that at the same time and plane together with persons unknown they stole a watch and $1,000 Hong Kong currency, belonging to the victim. After trial the applicant was found guilty of both charges and sentenced to twelve months' imprisonment on the first and three months imprisonment on the second. He now appeals against those convictions on the ground that the judge erred in assessing the credibility "of the prosecution witnesses and failed to take into account all the relevant factors as shown in the evidence.

2. The facts as set out by the trial judge in his summary of facts reveal that on the day in question the victim was having dinner with his wife, daughter and some friends when he was approached by a group of 6 or 7 males. The applicant told the victim to go with him to another table where there was a demand made by the applicant for the sum of US$5,500 and mention was made of the names Lau and Tung. The victim, having refused to give any money, was threatened and then took out $1,000 and gave it to the applicant and after more, threats, handed over his watch. He was told he would be contacted the next day as to the payment of the remainder.

3. In the Reasons for Verdict the trial judge said the applicant told the victim to be sure to pay the balance the next day and wrote his pager number on a piece of paper which he handed to the victim saying to page him the following day.

4. The trial judge in his findings as to credibility said that he was impressed by the evidence of the victim and found him to be reliable. He pointed out that the victim had made an immediate report to the police and that his. account was supported by his wife and to some extent by the witness called by the applicant.

5. Mr. Mackay, who appears for the applicant, firstly argues that the trial judge was wrong when he referred to the group which approached the victim as "being an aggressive group" as there was no evidence as to the nature of the group. There was clear evidence accepted by the trial judge, that one of the group, who was the applicant, acted aggressively. Further it seems clear that the men were moving as a group and were giving support, at least by their presence, to the aggressive action of the applicant. In such circumstances we can see no substance in the complaint that the group was wrongly characterised as being an aggressive group.

6. The second ground of appeal is that there was a failure by the trial judge to give proper weight to four matters that arose in the evidence. It is true that the judge did not refer to these matters in his findings.

7. The first complaint is that he failed to refer to the assertion by the victim in his first witness statement that he had thrown away the paper on which the pager number of the applicant was written thereby contradicting his evidence that he had retained the paper. The notes of proceedings reveal that he was cross-examined about this matter by being asked to read out what he had said in his witness statement. He read out what he had said and the matter was not pursued further. There was no further cross-examination and no suggestion was made to the victim that there was anything sinister in this discrepancy. The cross-examiner simply asked one question and then let the matter rest. The fact that the trial judge in the circumstances made no mention of this is not, in our view, a matter of any real consequence. We do not consider that there are any merits in this ground of appeal.

8. The second matter is that there was evidence adduced in cross-examination that CHAN Cheung-ming, a person with whom the victim was well-acqainted, contacted the victim on the following day requesting US$5,500. It was suggested, although there did not appear to be any evidence to support this, that the victim had not reported this contact to the police. The evidence did reveal that the person CHAN Cheung-ming was not mentioned by the victim in his evidence-in-chief. This is, however, perhaps explained by the fact that it might well have been improper for any such mention to have been made as such evidence would, arguably, not have been admissible against the applicant.

9. It is true, however, that the victim, when cross-examined, made an unresponsive statement in his first answer in which he mentioned CHAN Ho-ming. The cross-examiner could have pointed out to the judge that this was unresponsive answer and asked that this be disregarded. He did not, however, do so but rather sought to pursue the matter. He asked a question about CHAN Cheung-ming saying "You never mentioned in evidence-in-chief, only in answer to my first question in cross-examiantion." He again received an unresponsive answer as the victim replied "He phoned me the next day." Again he was prepared to accept that answer and then pursued the matter of CHAN Cheung-ming asking a number of questions about him to establish that the victim had known him and his brother previously. Finally he came to ask this question:

"Q. You met him several times at tea in the restaurant with CHAN Hau-ming the brother.

A. No, Chan told me he was the accused's follower."

Again this was an unresponsive answer which was on its face damaging to the defence case but again the cross-examiner pursued the matter by asking:

"Q. So you say the accused told Chan to ask you for the US$5,500."

The answer of the victim was "Right". It is in our view difficult to see how anything can be made in favour of the accused in this regard. The matter was, it is true, first raised by the victim. However, it was pursued in what might be characterised as a relentless way by the cross-examiner who at no stage took any objection to the unresponsive answers being given and who, in the outcome, solicited from the victim the information that the man Chan had on the following day approached him to prusue the request that had been made on the previous day by the applicant, for $5,500 in U.S. currency.

10. It is suggested that the trial judge should have alluded to this matter and that, had he done so, he might have had some doubt as to the guilt of the accused. A trial judge is not required to allude to every matter mentioned in evidence. Given the way in which this matter unfolded and bearing in mind the view which the trial judge took of the witnesses we are satisfied that his view of the credibility of the victim would not have been affected by this evidence. There is nothing that calls for interference by us on this ground.

11. The third matter dealt with the evidence of the victim and his wife who said that the incident took place in the view of the victim's friends. This matter has not been pursued at length before us and we consider it sufficient to remark that it is by no means beyond belief that demands such as this be made in a bald way in a public place.

12. The fourth matter raised was a suggestion that the victim in his report to the police had exaggerated the value of his watch. This was not, in our view, a matter of such consequence that the trial judge was called upon to make comment thereon when making his evaluation of the evidence.

13. The third ground of appeal was a complaint that the trial judge had "failed to reject consideration of hearsay evidence given (by the victim) in relation to his blackmail by Lau and Tung". It is a little difficult to understand exactly what is meant by this ground of appeal. The evidence of the victim was that the applicant when he approached him mentioned the names Lau and Tung. It seems to us that the court was entitled to have before it evidence which would explain the significance of those names. What the victim said in explanation was that Lau and Tung had blackmailed him previously and had been convicted and imprisoned for that offence. This was an explanation that the prosecution was entitled to lead and we do not see that any objection can be taken thereto.

14. Nothing has been argued before us to occasion us any doubt that the convictions were safe and satisfactory and the application for leave to appeal against conviction is therefore refused.

Representation:

Mr. I.G. Cross (Crown Prosecutor) for the Respondent.

Mr. G. Mackay (Messrs. David R.W. Tsang & Co.) for the applicant.