R. v. Ho Kin Leung

CACC000535/1991

----------------------------

Coram: Hon. Sir Derek Cons, V.P., Fuad, V.P., and Kempster, J.A.

Date of hearing: 3 September 1992

Date of delivery of judgment: 3 September 1992

-------------------------

J U D G M E N T

-------------------------

Sir Derek Cons, V.P., delivered the judgment of the Court:

1. On 11th November last year Ho Kin Leung ("the defendant") was convicted by Judge C.B. Chan in the District Court of one charge of false imprisonment and one charge of blackmail. With the assistance of Mr. Adams of counsel he now seeks leave to appeal the conviction on the second charge. So far as the application related to the first conviction it now stands abandoned.

2. The conviction arose in this way. To Chi Wah appears to be a compulsive gambler. In September 1990 he went to Macau. He lost money in a casino, borrowed money from loan sharks and lost that as well. That happened twice. Then the usual story unfolded. He was escorted by a number of men, including the defendant, to a hotel in Macau; subsequently to Hong Kong where he was further detained by them in a restaurant so that he could make telephone calls to raise the money demanded, i.e. some $30,000, which was approximately twice that which he had borrowed from them. As a result his father paid $8,000 into a nominated bank account. By the subterfuge that evening of going to the toilet To Chi Wah managed to escape from those who were detaining him. He had been held for some three hours.

3. The charge of false imprisonment rested on those facts.

4. Further telephone calls were made to the father by a person giving his name as Ho and at some time there was a meeting between the father and other men at the same restaurant where the son had been detained, at which meeting $22,000 was demanded, being the balance of the $30,000 originally asked less the $8,000 already paid by the father. The father said in his evidence that that meeting was before 10 p.m.

5. Finally, after the father had contacted the police, a trap meeting was set up by telephone for the man named Ho to come and collect the money at a restaurant downstairs from the father's home. The defendant fell into the trap and was arrested. That was on the afternoon of 5th October.

6. The second charge of blackmail was based on what had occurred at the earlier interim meeting at the Tung Fong Restaurant and rested on the father's evidence that it was the defendant who sat next to him for some 30 minutes at that meeting and then and there a man blackmailed him. The father did not say so directly, but said that on 5th October he recognised the defendant, who then came to meet him, as being the man who had been at the earlier meeting and blackmailed him. The father's evidence was accepted by the learned judge below, the defendant giving no evidence himself and not calling any witness.

7. The sole ground of appeal that is now put forward is based on a suggestion that records in the Immigration Department show that the defendant was away from Hong Kong at the material time. An application was made to call a witness to that effect at the outset of the appeal this morning. Counsel for the Crown objected but nevertheless we deferred our decision for the time being and accepted submissions on the basis that the defendant did indeed leave Hong Kong as suggested - at 1915 hours on 27th September - and not return until 2nd October.

8. If the interim meeting had in fact been held on 28th September then, of course, the defendant could not have been the man sitting next to the father and the father's recognition of him on 5th October would have been mistaken. But the question of precise dates or times was not explicitly explored at the hearing below and in any event, as the father himself observed, "It is because I am getting old. My memory is not so good as before and this incident., happened over one year before."

9. We have been taken by Mr. Adams carefully through the evidence given by the father, but we have to say that we are not persuaded that it must be taken to be so precise as to dates or times as to exclude the possibility that the defendant, having left Hong Kong in 1915 hours on the 27th, could not have taken part in the meeting in question. That meeting was originally charged as being on 28th September but leave was given at the hearing, without objection from counsel then appearing for the defence, for it to be amended to "about the 28th". There can thus be no technical difficulty.

10. We have to observe that it is now accepted that the defendant was an active player in the early history of the affair, i.e. both in Macau and in Hong Kong; his presence on 5th October to collect the money remains unexplained; and the father was in possession of the defendant's telephone number, by means of which the arrangements for 5th October were made, and which number the father said had been given to him at the earlier meeting. All these factors give firm support to the father's identification.

11. We have no hesitation in concluding therefrom that even if the evidence sought to be introduced were admitted the defendant's conviction would not be found to be unsafe or unsatisfactory. The application for leave to appeal is therefore refused and we should add, for the sake of the record, that the application to call further evidence is likewise refused.

Representation:

D.G. Saw, Crown Prosecutor for the respondent

Nicholas E.W. Adams (M/s. Kenneth C.C. Man & Co.) for applicant