Leung To Ho v. The Queen

CACC001082/1978

Coram: Trainor, J. in Court

Date of Judgment: 30th November, 1978.

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JUDGMENT

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1. The appellant in this case was convicted of disorderly conduct and was bound over in the sum of $250 for a period of six months the conviction not to be recorded. He was ordered to pay costs of $200. Against his conviction he now appeals.

2. It would appear from the record that on the 2nd August of this year Police were called from radio control to go to the Jordan Valley Estate Post Office to deal with an assault case. There P.C.12078 found the person who was alleged to have been assaulted. As a result of information he received from that man he stopped a private car a short time later which was being driven to the scene. The car was driven by the appellant. The witness said:

"From what was said by the complainant I came to understand that the driver of the private car had conveyed the assailant away."

The witness said he asked the appellant whom he had conveyed off the scene and was told a person called Hak Chai. He was then asked as he had seen him assaulting the complainant and conveyed him away in his car did he take part in the fight. The witness said that the appellant at once changed his version saying that he did not know the person Hak Chai as he, the appellant, was merely running a pak pai business and that he received a dollar twenty from his passenger, and the appellant showed the dollar twenty to the witness. The witness said he told the appellant that he would be charged with operating a pak pai business and that the dollar twenty would be held as evidence. He said he then cautioned the appellant and the appellant left the car. He said as he got out of the car he abused the police, that is the witness and the sergeant who was with him, shouting that the police had taken a dollar twenty from him and the whole thing was a frame up. He said the appellant shouted so noisily that 80 to 100 people surrounded to watch. The witness said the appellant continued using abusive language and he warned him if he continued to speak like that he would be charged with a further offence. He said this produced no result and the appellant continued shouting and said he was going to telephone 999. He did not say that, in fact the appellant did dial that number.

3. The witness said the crowd increased to about 150 people and traffic was blocked and a number of motorists began to blow their horns. He said the appellant was ultimately brought back to Ngau Tau Kok Police Station and charged with the offences on which he appeared before the court below.

4. Those charges were (a) disorderly conduct, (b) driving a private car for the carriage of passengers for hire or award and (c) driving a motor vehicle without third party insurance. The learned magistrate dismissed counts (b) and (c) at the close of the case for the Crown.

5. In his cross examination of the witness the appellant suggested to the witness that they had met previously in Yaumati and had a dispute at a football match. The witness denied ever meeting the appellant before.

6. After the first prosecution witness had given his evidence a rather unusual procedure was followed. The sergeant who had been present with the first witness was called and presented for cross examination. As to the incident that was alleged to have taken place he gave no evidence at all. The appellant who was unrepresented did cross-examine the witness. He asked him had he complained as he got out of the car that the first witness had taken several tens of dollars from him. The witness did not directly answer that question but said that as the appellant got out of the car he called out loudly that police had taken money from him. He immediately went on to say that the appellant had said that he had seen the first witness on a football pitch in Ngau Tau Kok. The appellant persisted with the question about the several tens of dollars and the witness then agreed that the appellant had accused the first witness of taken several tens of dollars from him. He agreed that the appellant threatened to ring up 999 to say that police had taken money from him. He was asked if the first witness said that he would charge the appellant with various offences such as operating a pak pai and assisting an offender to escape and disorderly conduct to which the witness replied that he had heard the first witness caution the appellant for various offences. He denied, however, that at the scene the appellant had said that he had no connection with the case and that he had not committed any offences. He said the appellant told him that he had conveyed a person called Hak Chai but he didn't know where he lived.

7. The witness was re-examined and he said that on hearing the appellant's allegation that the first witness had taken several tens of dollars from him he was satisfied that what the appellant said was not true because he had said he had met the first witness a few days before in Ngau Tau Kok Police Station. In his cross examination the appellant had put it to the first witness that he had had a dispute with him on a Yaumati football pitch 12 months previously, and in his own evidence when he was being cross-examined he said that it was in Yaumati that he had met the first witness. That is a small matter but when taken in the context of the whole case it did have some bearing because it suggests that had it not been for that lie as the sergeant understood it, perhaps things might have been different.

8. The magistrate summarised the evidence of the witness about the alleged meeting between the appellant and the first witness as follows:

"The Sergeant stated that the defendant had also alleged that he had met P.W.1 in the Ngau Tau Kok Police Station, a few days before the incident as he knew that P.W.1 had not been attached to the Ngau Tau Kok Police Station then he was certain that this was not true nor was the allegation of P.W.1's having taken several tens of dollars from him."

That was far from being a correct summary of all the evidence of the Sergeant concerning the alleged meeting. The Sergeant in his cross-examination, in reply to a question from the appellant which was in no way connected with the alleged meeting, volunteered the information:

"The defendant also said that he had seen P.W.1 before in a football pitch in Ngau Tau Kok."

It was only on re-examination, (there is not record of the question) that the Sergeant mentioned the police station. He said:

"On hearing the defendant's allegation that P.W.1 had taken several tens of dollars from him, I was satisfied that what the defendant said was not true because he said that he had met P.W.1 a few days before in Ngau Tau Kok Police Station but the fact was P.W.1 was not attached to Ngau Tau Kok Police Station a few days before the incident."

9. It is I think of some interest that the appellant should have put it to the first prosecution witness that they had met - in fact, they had a dispute - on "a football pitch", that the Sergeant said initially that they had met on "a football pitch" and only on re-examination said the alleged meeting was in the police station.

10. As I said earlier the question of the meeting would not be of great significance were it not that the learned magistrate seemed to consider it of some importance. He said in his statement of findings:

"The defendant did not strike me to be a credible witness. It was indeed strange that apart from a report to the Sergeant at the scene he did not diligently pursue subsequently his complaint alleging P.W.1's taking of a few tens of dollars from his vehicle as it amounted to theft, if there was any truth in it at all."

May I pause there a moment to say that the appellant alleged several tens of dollars were taken. To continue:

"Although he denied when cross-examined that he had said of having met the P.W.1 in the Ngau Tau Kok Police Station a few days before the incident and it was put to him in his cross-examination of P.W.1 as to the brush with P.W.1 a year back in a football pitch in Yaumati, yet he did not see fit to make any mention of the said incident in his own evidence-in-chief. In the event his evidence was rejected in toto."

11. In my opinion much more worthy of comment was the fact that the Sergeant first referred to a football pitch but later when cross-examination was concluded changed the scene to the police station.

12. But more important still is the first paragraph I have quoted: that the appellant did not diligently pursue his complaint. I find it difficult to see what more the appellant could have done. To commence with he immediately reported the matter to the Sergeant, and, when he got no satisfaction threatened to, and finally did, dial 999. When he was brought back to the police station he again complained, and after a detective constable "made an investigation" the appellant was given back the money he had deposited by way of bail and told he might leave. When he left he went straightaway to the uniformed branch section of the police at Mongkok where he was told to return the next day as there was no inspector to deal with his complaint. He returned the next day and was told to come back some days later. The appellant said he went there three times in all. That evidence was not challenged, and it could not be challenged because I have been told by Mr. Adam, counsel for the Crown that it is perfectly true.

13. I would have thought the unchallenged evidence of the appellant clearly demonstrated that he pursued his complaint with the utmost diligence. I would have thought his pursuit of his complaint showed he considered that he had been unjustly treated; a feeling reflected in his presentation of the appeal before me and from the fact that he had, as he told me and I believed, come back from Taiwan to prosecute this appeal.

14. I allowed the appeal against the conviction, a conviction about which Mr. Adam, with his usual punctilious fairness, said he was not happy.

Representation:

Appellant in person.

Mr. Adam, c.c. for Crown.