Leung Kim-hung Lam Hon-kong v. The Quee
Read the full judgment text of CACC 502/1976 on BabelCite. This Court of Appeal judgment.
1. The case which the Crown sought to present and which appears somewhat cloudily behind the tangle of the evidence was basically a simple one.
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CACC000502/1976
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----------------- Coram: McMullin J. in Court Date of Judgment: 26th May, 1976. ----------------- JUDGMENT ----------------- 1. The case which the Crown sought to present and which appears somewhat cloudily behind the tangle of the evidence was basically a simple one. 2. The complainant, an elderly man of about 66 years, retired from Government service, received a phone call in the course of which the caller demanded $500. Several days later two men came to his premises and found him in bed. They awakened him, told him to put on his clothing, and took him to a tea house nearby. One of them was the first appellant and the other was a person who had previously been known to the victim but he is not in custody. The man not in custody asked if the complainant had the $500 ready. The complainant, who did not understand the reason for this demand, nevertheless said that he would have it by next Saturday. The first defendant threatened that if he did not produce the money he, the first defendant, would lame him by injuring his foot. The second appellant was present at the table but took no part in these proceedings. On the same day the complainant reported to the police and a scheme was worked out for trapping the blackmailers. The complainant turned up upon the day appointed to meet the blackmailers, having been supplied with a marked $100 note which he offered to them. He was told that it was not enough and the first defendant said that he would not accept the $100 and that he would instead injure his hand. The first defendant, the complainant's former acquaintance, and several other men were present though not at the same table. The first defendant then left and the police party, members of which had been sitting at tables nearby, got up and arrested the first and the second appellants and took them to the police station. 3. As I say, that appears to be the case that the Crown was proposing to present. The record of the trial however shows such a degree of confusion in the evidence and in the procedure adopted that it is difficult to avoid the conclusion that there has been a failure of justice. For a start there is the question of the dates. Much of this confusion may well be due to the age of the complainant and one would not expect an elderly man who had been through a very trying experience to be accurate in every detail. For all that it is very difficult to bring his account of the sequence of events and the dates he gives for them into alignment with what was said by the police witnesses or with the particulars charges. He said first of all that he received a phone call on the 15th of January 1976 demanding the $500. The visit by the two men took place about five or six days later, that is about the 20th or 21st. On his account of it it would be on that day that he went to the police station after his first meeting with the blackmailers. He said that he was told to come back the following day (which would be the 22nd) and was then told to return four or five days later (i.e. the 26th or 27th of January). 4. The police account of it is that the complainant reported to them on the 9th of January concerning a call which he had received on the 1st. At least that is what I made of the rather cryptic note of the evidence which appears on page 7 of the record. That report is said to have been to the effect that the complainant was being frequently blackmailed although the complainant in his own evidence said that the phone call which he received on the 15th was the first occasion when it had occurred. The police witness (P.C. 9572 P.W. 2) went on to say that the complainant returned on the 15th of January to see the police presumably with the same complaint and was told to return to them on the 17th - the day of the actual police trap and arrest of appellants. On that day - the 17th - he was given the marked note and at 1.30 p.m. P.C. 9572 and six other policemen went to the restaurant where the trap was to be sprung. It may be that this disjunction of dates is to be explained by a remark made by the complainant at the very end of his evidence-in-chief where he said:
If the day on which he was dragged out of his bed was the 9th of January that would put the first phone call at about the 1st of January which would agree with P.W.2's evidence. However, the complainant then went on to say (as recorded by the learned magistrate):
What this refers to was never cleared up since the original testimony was that he had only had one phone call. If the prosecutor was aware that his witness was unsure of dates it was ill advised to put any specific dates to him, but one would think that he should in any case have made some attempt to disentangle the sequence of events from the confusion of dates. Also, the complainant never seems to have been asked whether he recognised any of the voices as those of the men who confronted him later. It may well be that there was ultimately no substance in these difficulties but they should certainly have been explored and cleared up if possible. Unfortunately they constitute the minor part of the deficiencies discernible upon the record. 5. The magistrate, who expressly convicted both of the appellants upon the evidence of P.W.1 the complainant, said that he did not rely upon the evidence of the police officers P.W.2 and P.W.3, the witnesses who purport to give the exact sequence of events from the time of the complaint onwards. He does not say why he rejects their evidence and that it is a pity for there is at least one point at which contradiction between that evidence and the evidence of the complainant is possibly very significant in relation to the case against the first appellant. It is the complainant's case that upon his meeting with the three men the $100 note which he tendered to them was actually refused by the first appellant and he said that he returned it later to the C.I.D. P.W.2 however said that after the arrest of the first appellant he searched him and found the $100 note in his hand and P.W.3 supported him in this testimony. That is not something about which the police were likely to be mistaken and one would have expected the learned magistrate to deal with the discrepancy or at least to make it clear that he was aware of it since it concerns an important detail of what is said to have happened in the presence of the police at the tea house. 6. Having rejected the testimony of the police officers and relied solely upon that of the complainant the magistrate proceeded to make a series if findings which do not appear to be supported by that testimony at all. Thus he said (page 18 of the record):
I have only the note of evidence to go upon in this regard. On that it appears that the complainant did say that the second defendant was already at the table where he met the first defendant and his own former acquaintance at the restaurant on the first occasion. But he is not recorded as having said anything at all about his being certain that D2 was part of the "gang" nor about his being sure that D2's presence was not accidental. A magistrate is not obliged to record every word that a witness says but this was testimony of marked importance in view of the tenuous nature of the complainant's testimony as to the 2nd defendant generally. The learned magistrate then said (page 19 of the record):
I can find nothing of the kind in the record of the evidence of P.W.1. Then the magistrate (page 19 of the record) turned to deal with the events of the second meeting at which the police trap was laid. He said:
The record of the complainant's evidence however makes no reference at all to the second defendant being present during the conversation concerning the $100 note and indeed does not refer to him at all except, very incidentally, as a person who, upon the intervention of the police, was later handcuffed together with the first defendant and another man. Indeed the evidence seems to make it clear that it was the first defendant and the complainant's former acquaintance who had the whole carriage of the business upon that occasion and nothing said by the complainant on the record seems sufficient to explain why the second defendant was arrested. The complainant's recorded evidence does not show that the second defendant was at the table with the other two men or that he took any part in the discussion. On the other hand, both the police witnesses (P.W.2 and P.W.3) alleged that they had seen the second defendant go up to the table where the complainant was. They differed between themselves as to what they saw. P.W.2 said that the first defendant went up to the table and sat with the complainant for a while; then he got up and left and the second defendant went up and sat there for a while and then left and after that the first defendant returned and it was then that the witness saw the complainant hand the $100 note to the first defendant. P.W.3 said he saw both defendants go up to the table together. Then the first defendant left and shortly after returned and then the $100 note was passed. In view of the scanty nature of the evidence against the second defendant what next follows is of great importance for then we come to the matter of the confessional statement allegedly made by the second defendant. At page 9 of the record in the evidence of P.W.3, D.C. 12696 CHEUNG Hung-yan the following appears:
There is then a break in the text of the note of evidence and the following, which seems to be a note by the magistrate, appears:
What I take to be the note of the evidence of P.W.3 then continues as follows:
It may well be that that final sentence is the learned magistrate's ruling on the matter but that is not what appears from the text. If the police officer was giving that as his opinion he was incompetent to do so and it was a totally irrelevant piece of evidence. Furthermore, if that was part of the policeman's evidence there is then a total want of any ruling by the magistrate as to the admissibility of the statement. If, on the other hand, the final sentence which I have noted above was the learned magistrate's opinion and not that of the witness then that opinion was given without any opportunity being afforded to the second defendant to give evidence on the question of admissibility. It is clear not only from what the second defendant said at the trial but from what he said before me upon the appeal that it was his story that he had made a statement of a confessional nature and that he had been induced to do so by violence. In those circumstances it was essential either to conduct a separate inquiry upon voir dire or to take all the evidence, both that upon the question of admissibility and that upon the general issue, and, before calling upon the accused to answer to the charge, to make a ruling on the question of admissibility. The failure to follow this rule would on its own be enough to require the setting aside of the verdict as to the second defendant. The more so because, having rejected the evidence of P.W.2 and P.W.3 there was virtually nothing left upon which the second appellant could be convicted. 7. A final mystification arising from this confessional statement is that it has nowhere been included in the record and it is not referred to by the magistrate in his statement of findings. But in view of what the record discloses I am by no means certain that he did not rely upon it, in convicting D2. 8. Enough I think has been said to indicate the unsatisfactory nature of this trial particularly in relation to the conviction of the second defendant. I have seriously considered whether the best course would not be simply to allow the appeal but I am loath to take that course for the following reasons. Firstly, I cannot believe that the complainant, an elderly and apparently respectable man, would have made an allegation of this kind against persons with whom he has not previously been acquainted and that he has purported to identify then out of some obscure or frivolous impulse. If he has correctly named his tormentors they should certainly not go free. Secondly, notwithstanding the serious misgivings which I have expressed concerning the quality of the evidence, it appears to me that a fair part of the deficiencies I have described in it may have been due to inadequate investigation, preparation and presentation. I think that the proper course will be to set aside the convictions and sentences and to order a re-trial and the appeal is to that extent allowed. Although the defendants were represented at the trial they have inquired about legal aid before me. I assume that this means that they do not anticipate being privately represented on the re-trial. One would think that this is a fitting case for representation to be supplied to the appellants. I would suggest that the Director of Public Prosecutions might give thought to approaching the Director of Legal Aid with a view of making a special exception to the general rule that legal aid is not available for criminal cases before magistrates. Failing that I trust that in any event the record of the previous proceedings will be available to the prosecutor together with a copy of this judgment if and when the appellants come again before a court of trial. I hope also that any re-trial will be put on foot straight away. 9. A final point is that the prosecution might well re-consider the nature of the charges. As they stand the A and B charges both allege specific dates for the making of the unwarranted demand. As I have indicated the evidence is such that it may be difficult to support either of those dates. In effect the evidence seems to be that one demand has been made coupled with several criminal attempts to enforce it.
Representation: Appellants is person. Amey, c.c. for Respondent. |