The Queen v. Lam Hon Fai and Others

CACC000055/1989

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Coram: Hon. Cons, V.-P., Kerapster & Macdougall, J.J.A.

Date of hearing: 7 September 1989

Date of delivery: 7 September 1989

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J U D G M E N T

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Macdougall, J.A. delivered the judgment of the court:

1. The three applicants were jointly tried by Judge Baily in the District Court on a charge of blackmail and a charge of robbery. They were convicted on the robbery charge only. It is. against that conviction that they now seek leave to appeal.

2. The evidence which the judge accepted on the robbery charge was that the three applicants and another man, who claimed to be the husband of a woman that the victim had met in China, came to the victim's house on the evening on the 4 August last year and accused him of having indecently assaulted the woman. Over period of 2 hours all men, with the exception of the first applicant, struck the victim. A wire was tied around his neck and periodically tightened. He was also threatened with a chopper and forced to sign a cheque in a sum of $15,000. The men ransacked his bedroom, took his watch, a blank cheque and $570. Eventually some of the victim's co-workeis arrived with a view to accompanying him to work. He was told by the applicants to shout that he was ill. But when it became apparent that the men then wanted to enter the premises, the victim was permitted to leave under threat that if he reported the matter to the police he would be chopped.

3. Notwithstanding the threat, the victim made a report to the police, who then accompanied him to his home and found the first and second applicants still there. Some time later the third applicant appeared. On seeing the, police he took to his heels, but was apprehended after a short chase. The blank cheque that had been stolen from the victim was found on his person. It had been completed in the sum of $20,000 by someone other than the victim.

4. Of the three applicants only the first gave evidence. He did not dispute that he had gone to the victim's house with the other two applicants and the 4th man, and that while they were there the 4th man had asked the victim if he had gone to bed with his wife. He claimed, however, that their purpose in going there was to buy quail. He explained that he and the second applicant had spent the night on the premises after the victim had gone to work. He denied that there had been a robbery.

5. The victim testified during the course of his cross-examination that prior to trial the first applicant, whom he knew quite well, had frequently contacted him by telephone and had requested him not to give evidence in court. On the other hand, the first applicant claimed in his testimony that the victim had approachedhim in a restaurant on 7 December and had asked for $2,000 compensation for the loss of his watch and money, saying that if compensation was made he would not appear in court to testify against him. Furthermore, the victim told him that when the matter was over he wanted a further $60,000.

6. The first applicant also testified that he had made a report to the Tuen Mun police on 11 December about the victim having come to see him with a group of men two days earlier, and that on 13 December when he was leaving a restaurant the victim dragged him back inside and asked two clansmen to talk to him, saying that he would not testify against the applicant provided the latter would drop his complaint against him.

7. In his Reasons for Judgment the judge observed that the victim had been examined and cross-examined at length concerning allegations made against him by the first applicant immediately prior to the trial. However, he did not analyse the testimony relating to the various allegations the first applicant had made against the victim nor did he come to any stated conclusions in regard to them. This forms the subject matter of the first ground of appeal.

8. The essence of the complaint is that the allegation that the victim had approached the first applicant prior to the hearing and had demanded money from him in return for his agreement not to give evidence was "a crucial issue of credibility" that the judge was obliged to resolve. The second ground makes the same complaint in respect of certain other matters that occurred subsequent to 4 August.

9. This court has on a number of occasions been at pains to state the nature and the scope of the duties imposed on District Court judges by s.80 of the District Court Ordinance. Two of the most recently reported judgments are The Queen v. Cheung Yuen-hing [1988] 1 HKLR p.160 and Sheik Abdul Rahman Bux and others v. The Queen [1989] 1 HKLR p.1. There are also the very recent unreported decisions in The Queen v. Ngan Chi-shing (Criminal Appeal) 622 of 1988 and The Queen v. Hung Miu-ching and another (Criminal Appeal) 551 of 1988.

10. We cannot emphasise too strongly that it is the duty of counsel who appear in this court to acquaint themselves with its pronouncements on matters of general principle. In the cases referred to, the court made it abundantly plain that it is not incumbent on a judge either to state the whole of the law applicable to the case or to review the whole of the evidence. He is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence. All that s.80 requires is a short statement of the reasons for the judge's verdict.

11. In the present case the judge set out his findings on the evidence relating to the robbery. He. Plainly believed the victim. It was therefore not incumbent oh him to embark on an analysis of matters which were not only peripheral to the central issue, but consisted of areas of conflict between the victim and the first applicant in respect of which there was no independent evidence. Moreover, the solicitor who represented the applicant at trial made no reference during the course of his closing address to the judge to the very matters which it is now claimed in these two grounds of appeal that the judge failed properly to resolve or consider. In the circumstances we do not think it  is at all surprising that the judge did not analyse these matters in the Reasons for Verdict.

12. The Notice of Appeal also alleges that the judge erred in failing to recall the victim so that defence counsel could put to him both that he had visited the first applicant on the 9 December, and that he had dragged the first applicant back into the restaurant on the 13 December and had asked two clansmen to talk to him, saying that he, the victim, would not testify against the first applicant if the latter dropped his complaint against him.

13. The gist of the complaint is   that it was incumbent on the judge sui motu to recall the principal prosecution witness during the course of the defence case so that he could be cross-examined on matters relating to the first applicant, which at all material times had been within the personal knowledge of that applicant, but which had not been made the subject of cross-examination when that witness gave evidence during the case for the prosecution. Put in that way it is self-evident that this ground of appeal is totally lacking in merit. For these reasons therefore the application for leave to appeal against conviction is refused.

Representation:

Mr. C. Coghlan, S.C.C. for Crown Prosecutor

Mr. Jonathan L.M. Shaw assigned by D.L.A. for the applicants