HKSAR v. Lam Tung Hung and Others

HCMA1285/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1285 OF 2004

(ON APPEAL FROM ESCC1511 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 8 February 2006

Date of Judgment : 6 March 2006

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J U D G M E N T

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1.On 6 December 2004, all three appellants were convicted by Miss Livesey sitting at Eastern Magistracy of a joint charge of “Making off without payment” (Charge 4), contrary to section 18C of the Theft Ordinance, Cap. 210.  At the same time, the 1^st and 2^nd appellants were each convicted of separate charges of “Claiming to be members of a triad society” (Charges 1 and 2 respectively), contrary to section 20(2) of the Societies Ordinance, Cap. 151 and the 3^rd appellant was convicted of one charge of “Criminal intimidation” (Charge 6), contrary to section 24(a)(i) of the Crimes Ordinance, Cap. 200.  They now appeal against those convictions.

2.In addition, the 3^rd appellant appeals against the concurrent sentences of two months’ imprisonment imposed in respect of Charge 2 and six months’ imprisonment in respect of Charge 4.

3.The charges arose out an incident that occurred in the early hours of 29 November 2003 at the Neway Karaoke Box in Hennessy Road, Wanchai, sometime between 4:15 a.m. and 4:55 a.m.

4.During the course of that night, a group of between 20 and 40 or more customers had been using Room 65 at the Karaoke.  Customers were seen entering and leaving the room during the course of the evening.  The person who had rented the room was not one of the defendants.

5.At around 2:30 a.m. there had been complaints from at least two customers using Room 65 to the staff of the Karaoke that the charges levied on food and drink supplied to the room were too expensive.  It is not suggested that the three appellants were involved in these complaints or had even arrived at the Karaoke at that stage.

6.Sometime after 4 a.m. after a bill had been calculated by the staff of the Karaoke, there were further complaints about the size of the bill by the occupants of Room 65.  There was a confrontation with the staff of the Karaoke following which all the occupants of Room 65 left without paying.  

7.The evidence for the prosecution was that three individuals from Room 65 who identified themselves as Tai Jet Hung, Mo Yan Sing and Mao Gor were in particular involved in the latter confrontation.  The learned magistrate accepted that they were the 1^st appellant, 2^nd appellant and 3^rd appellant respectively.  She accepted that the 1^st and 2^nd appellants had separately claimed to members of the staff of the Karaoke that they were members of the Woo Hop To Triad Society.  These claims are the subject of Charge 1 against the 1^st appellant and Charge 2 against the 2^nd appellant.  She accepted that the 3^rd appellant had uttered a threat to injure PW1 Wong Wai Hang, a captain of the Karaoke, which is the subject of Charge 6.  She also found that all three appellants committed the offence of making off without payment, which is the subject of Charge 4.

8.In making these findings, she relied upon the evidence of three prosecution witnesses, Wong Wai Hang (PW1) and Man Sui Lun (PW2), both captains of the Karaoke and Leung Lok Shun (PW4), the manager.

9.Mr Philip Wong who appears for the appellants ultimately only relied upon two grounds of appeal against the conviction of the appellants :

(1)     that the magistrate had concluded that PW1 and PW2 were honest and reliable witnesses without resolving the material conflicts and inconsistencies in their testimony; and

(2)     that the magistrate had descended into the arena and intervened excessively in the conduct to the defence as well as invite the prosecution to adduce evidence of records of interview against the 1^st and 2^nd appellants.

Inconsistencies

10.Mr Wong relied upon two alleged inconsistencies in support of his first ground :

(1)     PW1 and PW2 had both given evidence of an incident around 2 a.m. to 2:30 a.m. when two of the customers in Room 65 had challenged the amount of the bill as being too expensive.  PW1 had said that PW2 was next to him at the time.  He had agreed that neither of the two customers had done anything unlawful or criminal at that time and in particular they had not claimed that they were members of a triad society.  He said that he could not remember if they had said they would not pay, but had agreed that if he had been sure that a customer would not pay his bill, he would have called the police.  PW2 on the other hand said that someone had mentioned that they were “Hop To” and that they would not pay the bill and that they had left without themselves making payment. 

(2)     The second alleged inconsistency related to the evidence of the same two prosecution witnesses as to what occurred at about 4 a.m. to 4:30 a.m.  PW1 testified that although he had been threatened by the 3^rd appellant, nobody had physically assaulted and restrained him.  PW2 had on the other hand referred to the 3^rd appellant grabbing hold of PW1 during this incident.

11.It is important to bear in mind that a magistrate in his Statement of Findings cannot be expected to deal with all inconsistencies but only those that are significant to his findings.

12.The first alleged inconsistency relates to an incident that occurred at least two hours before the incident that formed the subject matter of the charges and did not involve any of the appellants.  It was not even necessarily an inconsistency at all as it was only PW1 who referred to PW2 being next to him but went on to say that he believed PW2 had a conversation with the two customers and that he was unaware of the contents of that conversation.  In other words, he is suggesting that the customers had a conversation with PW2 to which he was not a party.  It could well have been during that conversation that the reference was made to “Hop To” and an intention not to pay the bill.  Furthermore PW2 said that he did not regard the customers as having left without payment as there were still others from the same party inside Room 65.  If PW1 took the same view that would provide an explanation for what Mr Wong suggests is an inconsistency between them.

13.The second inconsistency alleged does not appear to be particularly significant as PW2 had initially denied Mr Wong’s suggestion put to him in cross-examination that the 3^rd appellant had been about to grab PW1; but then later conceded that the 3^rd appellant had grabbed him but had said : “violence was not involved”.  It may well be that PW1 had not regarded this action as an assault or restraint on him.

14.It must also be borne in mind that simply because a magistrate does not make specific reference to a matter he or she does not have it in mind.  It is abundantly apparent that the magistrate was aware of inconsistencies between the prosecution witnesses and bore them in mind.  She said this :

“Each of the prosecution witnesses employed at Neway had different responsibilities in relation to Room 65.  Each had a different area of responsibility and different duty within the company.  There were supervisors, waiters, captains, persons who took food into Room 65, took orders from Room 65, prepared bills for Room 65 or who were called to the scene because of the difficulties with the occupants of Room 65.  Some of the witnesses were involved intimately in the discussions, or just observing the dispute, or were partly involved in that they spoke to the persons from Room 65 and then withdrew and just observed.

Inevitably there are going to be discrepancies in the evidence of such witnesses in such circumstances.  It would be very suspicious if there were not discrepancies.  These discrepancies would arise because of the differing responsibilities of the witnesses in the Karaoke, the differing contact they had with the persons from Room 65, the fact that by 4:30 the conduct of the persons from Room 65 had become frightening and to a certain extent chaotic.

There was a different involvement of each witness in the incident.  There was a question of who was talking to which particular person, which suspect attracted the most attention of a particular witness, where each witness was standing, how intimidated they felt.”

15.Bearing in mind the nature of the inconsistencies referred to by Mr Wong, the magistrate was under no obligation to do more than she did.

16.I find nothing in this ground of appeal.

Interventions by the magistrate

17.Mr Wong referred to 19 instances when the magistrate had intervened during his cross-examination of various witnesses.  He alleges that these interruptions effectively deprived the appellants of their rights to a fair trial.  He further referred to an incident near the end of the prosecution case when the magistrate, having asked whether in the cautioned statements of the 1^st and the 2^nd appellants they had admitted they were at the scene and having learnt that they had, went on to ask the prosecutor whether he wanted to produce those statements.  Mr Wong alleged that this amounted to the magistrate descending into the arena and taking a stance against the 1^st and 2^nd appellants.

18.I do not find any substance in these submissions either.  In R. v. Whybrow (Times Law Reports 14 February 1994 at p.75) Taylor LCJ said this :

“Their Lordships wished to make clear that there were, of course, circumstances in which and purposes for which it was entirely appropriate for a judge to intervene during the evidence….

… The Royal Commission on Criminal Justice Report (Cm 2233 (1993) p 19) recommended that judges should be more interventionist so as to prevent trials becoming protracted.

Their Lordships entirely supported that recommendation.

Judges should intervene to curb prolixity and repetition and to exclude irrelevance, discursiveness and oppression of witnesses.”

19.The object of the interventions made by the magistrate were to ensure that the questions put to the witness were proper questions put clearly and fairly to the witnesses or to curb repetition or to ensure the trial proceeded expeditiously.

20.Even if, as Mr Wong submits, the magistrate had on at least one occasion misunderstood the purpose of his question, I am satisfied that he was not prevented from properly exploring and putting the case of his clients and that no injustice was caused thereby.

21.As the Court of Appeal said in Yeung Man Lam [1999] 2 HKLR 468, the number of interruptions are not relevant.  The quality and quantity of the interruption must be looked at as factors which react upon each other.  An appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena.  The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

22.It is true that the magistrate was in firm disagreement with Mr Wong’s submissions that it had been improper to allow PW2 to give evidence of identification made by him at an identification parade bearing in mind that when he had first attended the police station he had viewed a CCTV tape taken at the scene, and she had exhibited a degree of impatience when Mr Wong nevertheless persisted in continuing to raise the issue.  It is significant that Mr Wong does not now argue that the magistrate was wrong in her ruling on that matter.  

23.It is true also that the magistrate herself raised the issue of whether the 1^st and 2^nd appellants had made admissions as to their presence at the scene and invited the prosecution to consider whether they wished to adduce that evidence.  In the event, the prosecution did not.  This issue was raised at the time when the prosecution had indicated that its evidence from oral witnesses had concluded before the prosecution submitted admitted facts.  It was therefore at the time when it was legitimate for the magistrate to raise with the prosecution what further evidence would be called. 

24.I do not consider that either matter taken in conjunction with the other interruptions of which Mr Wong now complains would have led a person listening to the case to conclude that the defendants had not had a fair trial.

25.I dismiss the appellants’ appeal against conviction.

26.The 3^rd appellant appeals against his sentence on the ground that the magistrate did not justify why she did not differentiate the position of 3^rd appellant from the position of the 1^st and 2^nd appellants whose conviction of claiming membership of a triad society in Mr Wong’s words “inevitably attracted immediate terms of imprisonment” and had not accepted the recommendation of the Probation Officer that this 3^rd appellant received a Community Service Order.

27.I am satisfied that the magistrate did explain why she had adopted the course she did and that she was justified in adopting such a course.  Although the 3^rd appellant in contrast to the 1^st and 2^nd appellants might not have been found to have expressly stated that he was a member of a triad society, the magistrate found that the whole incident was triad related.  She found that the 3^rd appellant had stated that they were often not charged at other premises.  She justifiably concluded that that was “presumably on the basis that they were triad members”.  In such circumstances, it would have been anomalous in the context of the situation for the magistrate to distinguish the man who had actually uttered a threat of injury to a member of the staff from those who had not uttered such a threat but had simply expressed that they were members of a triad society, particularly in the light of the fact that the 3^rd appellant had seven previous convictions and had expressed no remorse.

28.I dismiss the 3^rd appellant’s appeal against sentence.

Mr H. Mellwaney, SGC of the Department of Justice, for the Respondent

Mr Philip Wong, instructed by Messrs Lau, Chan & Ko, for the Appellants