The Queen v. Yu Fung Sau

IN THE COURT OF APPEAL

1986, No. 579
(Criminal)

BETWEEN

THE QUEEN

and

YU FUNG-SAU (F)

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Coram: Hon. Yang, Silke, JJ.A. & Penlington, J.

Date of hearing: 20th February, 1987

Date of delivery of judgment: 20th February, 1987

_____________

JUDGMENT

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Yang, J.A.:

1. This is an application for leave to appeal against conviction. The Applicant was convicted by Judge Blackwell in the Kowloon District Court on a charge of blackmail and sentenced to 12 months' imprisonment.

2. The case of the prosecution against the Applicant is as follows: She was at the material time employed by PW1 and his fiancee PW3 at their shop. Whilst PW3 was away from Hong Kong on a trip, PW1 and the Applicant went out together on three occasions. The evidence of PW1 was that the Applicant had offered to sleep with him but he rejected that offer. Upon the fiancee’s return from abroad the Applicant resigned from her employment. There followed a number of occasions on which the Applicant sought to see PW1. Then on the 2nd July 1986 the Applicant and the second accused, together with a third person by the name of "Ah Keung", contacted PW1 and demanded $100,000 from him. On that occasion both the Applicant and D2 said very little and it was Ah Keung who did most of the talking. Amongst other things, Ah Keung said that because of PW1’s sexual relationship with the Applicant, her marriage had broken down. It was therefore necessary for him to compensate her, otherwise his shop would be burnt down and he would be assaulted and killed. Being frightened, PW1 agreed to pay what was demanded. The evidence of what transpired on that occasion came from PW1 and PW2.

3. It would also appear from the evidence that on the 6th July the Applicant and the second accused came to PW1’s shop and demanded payment of money, though no sum was mentioned. A further meeting was arranged and it took place at a restaurant that evening. In the meantime, PW1 notified the police and ten $1,000 notes were taken along, the numbers of these notes having been taken down by the police. At the meeting at the Dor Cheuk Restaurant the marked money was paid over to the Applicant who then put the money in her handbag. The two accused were then arrested by the policemen nearby.

4. There was no explanation as to why in spite of the demand for $100,000 only $10,000 was paid over.

5. In support of his application for appeal against conviction Mr. Poll argues that the trial judge had failed to consider the discrepancies within PW3's own evidence and the evidence between the prosecution witnesses PW1 and PW2 on the one hand and their statements to the police on the other. We do not feel there is any substance in the further complaint that there are sufficient discrepancies in PW3's own evidence to justify our interfering with the verdict.

6. However, Mr. Poll does point out three major discrepancies between the evidence of the prosecution witnesses and their statements to the police. First, there is the evidence of PW1 that it was only Ah Keung who actually made the threat and his statement that the Applicant also uttered words of threat. There is alsoPW1's evidence that when the threats were uttered by Ah Keung the Applicant was no longer present. This piece of evidence is inconsistent with what he had told the police. Secondly, there is PW1's evidence that at the meeting on the 6th July 1986 the two accused arrived together, but in his statement to the police he said that the Applicant and Ah Keung arrived together. Thirdly, there is the evidence of PW2 whose evidence was that the Applicant said, "If you do not agree to compensate, you will be beaten up by people”. In his statement to the police, he simply said that the Applicant had uttered some angry words to the effect that PW1 had had sex with her and had ruined her family, and then she left.

7. Mr. Poll suggests that there may be further important discrepancies between the evidence and the statements. We are of the view that on the basis of the discrepancies cited there is sufficient ground for us to doubt the correctness of the verdict. The judge in his Reasons for Verdict did say that he had considered the discrepancies between the evidence of PW1 and PW2, and those discrepancies were only to be expected. He went on to say that none of those discrepancies was of such a nature as to lead him to believe they were telling the court anything other than the truth. With respect, we disagree. These discrepancies are important ones.

8. For these reasons, we allow the application, treat the application as an appeal, allow the appeal and quash the conviction.

M. Poll (C.W. Leung & Co.) for Applicant

C.J. Lugar-Mawson for Crown/Respondent