IN THE COURT OF APPEAL v THE QUEEN

CACC000512/1991

Coram: Hon. Penlington, Nazareth, JJ.A. and Wong, J.

Date of Hearing: 20th May 1992

Date of Judgment: 20th May 1992

Date of Handing Down Reasons: 29th May 1992

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J U D G M E N T

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

1. Having heard counsels' submissions we gave leave to appeal, treated the hearing of the application as that of the appeal and allowed it in respect of all three charges. We now give our reasons and also record that the Crown did not seek a retrial.

2. The Applicant was on 21st October 1991 convicted by His Honour Judge Wilson in the District Court on three charges. First, of robbing one NG Cheuk at Pokfulam Village of $4,300 in cash on 4th February 1991. Second, at the same place and approximate time, of blackmailing NG Cheuk by demanding $10,000 with menaces. And third, also at the same place and approximate time, of criminal intimidation by threatening NG Cheuk with injury to his family if he reported to the police. The Applicant was sentenced to imprisonment for terms of six years, three years and one year, respectively, on the three charges, to run concurrently.

3. The facts as summarised by the Judge are as follows. The victim, NG Cheuk (PW2) and his wife (PW3) operate a small store where they live in Pokfulam Village. In the early hours of 4th February 1991, PW2 was preparing to close his shop when the Applicant and two other men arrived. PW2 heard the sound of the canvas awning being torn outside the shop. The Applicant produced a knife, demanded money, and helped himself by snatching the shop's takings of $4,300 from a drawer (Charge 1).

4. The Applicant added some triad language and said "his brothers wanted another $10,000 in order to pass the New Year" (Charge 2). He warned the defendant not to report to the police or his family would be in danger (Charge 3).

5. The other two men poured what appeared to be kerosene and there was talk of burning the place down. The three men then left. PW2 dialled "999".

6. Before the police arrived the Applicant returned leading a vicious looking dog. He repeated his demand for $10,000 to pass the New Year, his warning not to report to the police, and his threat that the victim's family would be in danger.

7. Then he pointed at the victim with one hand, held the dog's leash with the other and repeated the demand for $10,000. He released the dog which rushed at the victim's cat and seized it in its jaws. The Applicant then led away the dog still holding the cat in its jaws.

8. The police arrived and PW2 indicated the direction which the culprits had taken, towards the village. At that point the Applicant re-appeared from the village and the police arrested him.

9. The police went to the Applicant's home which was not far away within the village and recovered the victim's horribly mauled dead cat.

10. The officers noticed a smell of kerosene at the shop. A search was carried out for the Applicant's companions without success.

11. PW3, who was in the rear of the shop at the time, and saw or heard most of the events, gave corroborative evidence.

The Applicant's Evidence

12. The Applicant said that on that evening he had attended a meeting of the American Pit Bull Terrier Club, of which he was a member, and returned with three friends by vehicle to the outskirts of-the village. The three waited in the vehicle for the Applicant to go into the village and bring out his American Pit Bull Terrier to show them. His dog weighed 70 pounds, he said proudly, and had a habit of biting things including canvas awnings, cats, and even  trees.

13. As he passed the shop the dog bit and tore the victim's canvas awning and PW2 remonstrated with him. He was discussing compensation with PW2 but unfortunately the dog then broke lose from its leash again and savaged PW2's cat to death.

14. This caused further argument until a fellow villager, "Monkey Keung", came and persuaded him away. He took the dog home with the dead or dying cat still in its jaws. It did not cross his mind to try to rescue the cat at any stage, indeed he told his wife to make sure the bleeding cat did not make a mess at their home.

15. He thought he had a licence for the dog he said, and produced an RSPCA membership card which he thought might be such a licence. He returned to the scene in order to see his friends again but they seemed to have disappeared and he was then intercepted by the police.

16. The matters about the knife, the snatching of $4,300, pouring kerosene, demanding $10,000, and the threats to PW2's family and shop were all concoctions by PW2 and his wife, PW3, presumably as revenge.

17. The Applicant called two witnesses. "Monkey Keung" (DW2), a friend of the Applicant, said he had come across the Applicant locked in argument with PW2 about the mauled cat. PW2 was brandishing a sack or vegetable hook at the dog. He mediated and pushed the Applicant away in the direction of his home. He saw no suggestion of robbery.

18. DW3, another pit bull terrier enthusiast, attended the meeting with the Applicant. Afterwards the Applicant and three others parked their vehicle outside the village, as it is not accessible to vehicles, and the Applicant went to get his dog for them to admire. He could see PW2's shop on the outskirts of the village. He saw the Applicant return with the dog, a quarrel ensue with PW2 and saw another man intervene and push the Applicant away.

Findings

19. The Judge recorded his findings in the following way:

"I accept that in general the two defence witnesses saw what they claimed but I do not accept that they saw the entire incident exclusively.

    The evidence and the photographs of the scene show that the defendant's vehicle and the victim's shop, both on the outskirts of the village, and the various activities that night, were scattered over a significant area and period of time. There are two garages repairing vehicles in the vicinity and vehicles are parked indiscriminately in the area blocking one's vision.

    DW2's evidence does not differ substantially from the victim's as to what occurred at the defendant's second visit. He never saw the first visit.

    DW3, along with the defendant and his other companions, had taken alcohol at the dog fanciers' club that: evening. Of the other two, one had fallen asleep in the cabin of the truck, and the other was not called. DW3 was simply passing time in the vicinity and had no particular reason to note events or times. Although he might have been able to see the shop, I do not accept he had a good or exclusive view. In any event his evidence too does not differ greatly from the victim's as to what occurred at the second visit. If they were still there, none of the defendant's three companions came forward when the police arrived."

20. The Judge then went on to explain away discrepancies in the evidence of PW2 and PW3, noting that they told a convincing and graphic story, and concluding:

    I rejected the defendant's evidence. I am satisfied that the events occurred as the victims described them, that the defendant snatched their money, threatened them for a further $10,000, then intimidated them not to report to the police. I find the defendant guilty as charged."

Grounds of Appeal

21. The Applicant's three grounds in his Perfected Grounds of Appeal reflect the same general theme and are stated in the following way:

(1) That the learned judge substantially misapprehended or misunderstood the true nature of the evidence of DW3 in that it related to the whole of the firstand second incidents and meant that neither he nor his friends Cheung or Lam could have been parties to the robbery so that the version of PW2 and PW3 could not be true.

(2) That in view of his finding that DW3 saw what he claimed, it was not possible for the learned trial judge to properly convict the appellant on the charges he faced by the formula that DW3 did not see the whole incident.

(3) That the conviction of the appellant is, in all the circumstances, unsafe and unsatisfactory.

22. Mr. D. Marash who appeared for the Applicant submitted that the versions of the two sides are diametrically opposed. He focussed on those of PW2 and PW3 on the one hand and of DW2 and DW3 on the other. The latter testified to an altercation of some ferocity and duration between PW2 and the Applicant about compensation for the killing of the cat. While that was not put in specific terms to PW2 and PW3, the effect of their evidence was clearly that no such altercation took place. In addition the tenor of the evidence of DW2 and DW3 is against PW2 and PW3's version of the 2 incidents, i.e. the tearing of the awning, the threat. with a knife, the snatching of $4,300 and the pouring of kerosene having taken place. In particular DW3's evidence that the Applicant went off to fetch his dog, walked back with it, that the dog bit a cloth hanging from the top, the door of the shop opened and there was a quarrel, that he walked to the shop, that a woman came out, that he was there at the shop for about 10 minutes and the abusive quarrel between PW2 and the Applicant went on for about 5 minutes until Ma mediated, is irreconcilable with that of PW2 and PW3. It can therefore be seen that Mr. Marash was right in submitting that the competing versions are diametrically opposed and it is not necessary to go into other minor aspects in which they diverged.

23. Mr. Marash then pointed to the following sentence at the beginning of the Judge's findings:

"I accept that in general the two defence witnesses saw what they claimed but I do not accept that they saw the entire incident exclusively."

He submitted that this is a clear acceptance of the general evidence of the two defence witnesses. Notwithstanding Mr. McMahon's ingenious submissions to the contrary for the Crown, we accept Mr. Marash's submission. It is difficult to see that what the Judge said could have meant other than acceptance by him of the truth in general of the two defence witnesses' evidence in respect of the incidents of which they spoke.

24. In his findings, as shown by the foregoing extracts from his judgment, the learned judge then went on to observe that:

" The evidence and the photographs of the scene show that the defendant's vehicle and the victim's shop, both on the outskirts of the village, and the various activities that night, were scattered over a significant area and period of time. There are two garages repairing vehicles in the vicinity and vehicles are parked indiscriminately in the area blocking one's vision."

Since the evidence of DW2 and particularly DW3, which the Judge generally accepted, is that they were right there at the shop or otherwise actually saw what they testified to, it is difficult to understand how the activities being scattered over a significant area (which is not the effect of the evidence) and period of time, and parked vehicles blocking one's vision can reconcile the conflicting versions. None of these matters or what followed the foregoing passage in the Judge's Reasons, can in our view, reconcile DW2 and DW3's version with that of PW2 and PW3. The general acceptance of the former's evidence of the two incidents, must put in doubt the evidence of PW2 and PW3. We accept the dicta, upon which Mr. Marash relied, in R v Sheik Abdul Rahman Bux and Others (1989] 1 HKLR at pp 4 and 5, that there is no duty upon a judge under s. 30 of the District Court Ordinance

"to review the whole of the evidence ... but if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood true nature of the evidence ... it may ... be open to an appellant to attack his conclusions on the facts ..."

Given the diametrically opposed and irreconcilable versions of PW2 and PW3 on the one side and DW2 and DW3 on the other, and the acceptance of both, the conclusion is both clear and inescapable that the Judge must have substantially misapprehended or misunderstood the nature of the evidence involved, which evidence was crucial. Accordingly, not without some reluctance, we felt constrained to conclude that the verdicts were unsafe and unsatisfactory. We do not find it necessary to advert to other matters, of a less substantial nature, which point to the same conclusion, upon which Mr. Marash also relied in support of his three grounds.

Representation:

Mr. M.A. McMahon for the Crown/Respondent

Mr. D. Marash instructed by M/s Paul Kwong & Co. for the Applicant