Kwok Ah-hing v. The Queen
Read the full judgment text of CACC 560/1982 on BabelCite. This Court of Appeal judgment was delivered on 19 November 1982.
1. The appellant faced trial on ten charges. On the 19th and 20th charge in the charge sheet he was jointly charged with a second defendant.
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CACC000560/1982
BETWEEN
_________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 19 November 1982 ___________ JUDGMENT ___________ Silke, J.A.: 1. The appellant faced trial on ten charges. On the 19th and 20th charge in the charge sheet he was jointly charged with a second defendant. 2. He was convicted on four of those charges - the 16th, 18th, 19th and 20th - all of which were connected with an incident on the 18th January 1982 at the Lai Lai Apartment House. 3. The 16th charge is that of criminal intimidation: a Madam Leung being threatened with harm if no prostitute was made available to the appellant. 4. The 18th charge is that of criminal damage: banging a table into a wall causing slight damage. 5. The 19th charge was one of blackmail with demand of $1,100 with threats and the 20th charge was the theft of the blackmail. 6. On a further charge connected with the incident, that is claiming to be a member of the triad society, the appellant was acquitted. 7. The other five charges upon which he was also acquitted stretch over a period of 1979 to 1980 and depended on the identification by Madam Leung, who was the 1st prosecution witness. And it is her identification which is the main ground of appeal in respect of those charges upon which the appellant was convicted. 8. The facts were that on the 18th January 1982 two men came to the Lai Lai Apartment House, one named Ah Hing or Kwok Hing - the name of the appellant - demanding a girl. There was a Thai girl on the premises but she was a tourist not a professional. Madam Leung, the keeper of the apartment house, refused to provide her though offered a sum of $200 by a man called Ah Fai on the instructions of Kwok Hing. The two men frightened the girl but did not achieve their purpose. 9. Kwok Hing demanded lucky money in the sum of $110 and was given it. He then said it was too little and demanded $1,100. Various offers of payment were made by Madam Leung and, threats having been made and physical violence offered, she eventually paid $1,100 to Kwok Hing. A third person then arrived after which the trio left. 10. In the course of all this, Madam Leung had sought help from her brother, who, as a result, went to the premises. Mr. Tse, the 2nd prosecution witness, on arrival said he saw Ah Hing whom he identified in court as the appellant. 11. Mr. Tse tried to mediate, offering money for a meal to the appellant as they were Kai Fong. This was refused. Girls were demanded then the $1,100 and Ah Hing pushed the table into the wall. 12. Madam Leung brought a red packet and put bank notes into it and gave it to Kwok Hing. 13. Madam Leung did not identify the appellant. She was clearly reluctant to do so. Her evidence in chief concluded -
14. Mr. Mayne, with him Mr. John Lee, complains that the evidence of identity was bad; that Mr. Tse's identification was a dock identification which should not have been permitted; that the judge did not give himself a Turnbull (1) direction which was essential in this case: that Madam Leung's failure to identify amounted, in effect, to perjury and the trial judge was not entitled to find her an honest and reliable witness as regards the rest of her evidence: she was too tainted 15. Mr. Tse had said he was with the group for about 40 minutes, in circumstances ill-defined, on the 18th and that he had seldom seen the other before. There was no identification parade held in respect of D1 - as there was in respect of D2. It is on this basis that the dock identification is challenged. 16. Mr. Mayne further complaints of the record of proceedings and on this he clearly has a point. He advances this submission in aid of his general proposition that the convictions are unsafe and unsatisfactory. 17. We have before us that which purports to be a certified copy. In it there are various questions in cross-examination, and some answers, which simply do not make sense. 18. In his Reasons for Verdict the trial judge makes reference to Madam Leung, a middle aged woman, breaking down and weeping on several occasions and went on a little later:
19. None of this appeared anywhere on the record and it should have. 20. We are by no means unmindful of the difficulties faced by a trial judge being his own recorder. It is not an easy task but while it remains necessary it must be carried out. I shall come back to the effect of that in a moment. 21. Had identification really been in issue in respect of the 18th January incident then we would have been disposed to have found the dock identification by Mr. Tse suspect and to have been a form of identification which should not have been permitted to take place. But we take the view that it was not and for these reasons. 22. In the course of a series of cautioned statements - one to each of the ten charges - the appellant said:
23. He denied any wrongdoing. $1,100 was found on him at arrest. These statements and the evidence of the $1,100 were admitted without further proof at the trial. 24. The only discernible defence, and this emerged from questions asked in cross-examination for the appellant did not give evidence, was that there was a genuine flower transaction, the time being close to the New Year, as between the appellant and Madam Leung. This was specifically denied by Madam Leung when put. 25. The effect of this was to put the appellant fairly and squarely in the middle of the "flower transaction" of which Madam Leung and Mr. Tse gave a totally different version. 26. The likelihood in the circumstances of there being another Kwok Hing also involved in similar flower transactions at the same time, as advanced by Mr. Mayne, we think to be so unlikely as not to merit consideration. 27. The non identification by Madam Leung goes not to the presence or absence of the appellant but to her credibility as a witness. This was an issue faced squarely by the judge who found her otherwise reliable. We cannot say he was wrong. 28. While Tse's identification by itself might be suspect, it was not by itself and his general evidence was found by the trial judge to "strengthen" the evidence of the incident as described by Madam Leung. 29. It is correct that there were certain unsatisfactory aspects of this trial, in particular, the compilation of the record and the non identification by Madam Leung. We are not however prepared to accede to the submission that these aspects make the convictions unsafe or unsatisfactory. There was evidence upon which the trial judge could justifiably come to the conclusions that he did. 30. The application for leave to appeal against conviction is therefore refused. ----------------------------------------------------------------------------- Sentence 31. The appellant appeals by leave against the sentences imposed upon him - being three years on each charge to run concurrently. 32. It is quite clear that the trial judge's approach was on the basis of the totality and that he bore in mind a previous sentence of one year's imprisonment suspended for two years which he activated and directed to run consecutively. 33. The offences were of a cowardly, bully-boy type and we would not think three years' imprisonment to be wrong in principle in respect of them. 34. We however have doubts as to the approach adopted by the trial judge. The actual charges upon which the appellant was convicted were, for ease of reference: the 1st charge - charge 16 - criminal intimidation; the 2nd charge - charge 18 - criminal damage; the 3rd charge - charge 19 - blackmail and the 4th charge - charge 20 - theft, which was related to the blackmail. 35. In his Reasons for Sentence the trial judge set out these as being: the 16th charge - theft, the 18th charge - criminal intimidation, the 19th charge - claiming to be member of the triad society and the 20th charge - blackmail. 36. With reference to the "19th" charge - "claiming to be a member of the triad society" - the appellant was in fact acquitted of that charge which was charge 17 on the charge sheet. Had there been a conviction of such an offence, as part and parcel of the incident, then it could well have permitted the enhancement of the sentences. 37. The trial judge appeared ...(illegible) is in mind when reaching his totality; he was ...(illegible) 38. We think it would be ...(illegible) circumstances to allow the sentences of three years ...(illegible). 39. We therefore reduce the ...(illegible) the sentences imposed to one of two years' imprisonment and to that extent, we would allow the appeal ...(illegible) sentences of three years imposed on each of ...(illegible), and substitute therefor a sentence of ...(illegible) imprisonment. 40. The activated suspended ...(illegible) imposed for an offence of blackmail in 1980 ...(illegible) months will remain. It has been drawn to our ...(illegible) that the trial judge was apparently under a ...(illegible) as to the length of that sentence - thinking ...(illegible) two years. He purported to activate half of he came to appreciate that it was of one year...(illegible) no reason why this activation should be in ...(illegible) interfered with. (1) (1976) C.A.R. 63, p. 132 Representation: D.F. O'Reilly Mayne, Esq., Q.C. & John Lee Esq. instructed by Messrs. Howell & Lo for the Appellant. F.C. Whitehouse, Esq. for Crown/Respondent. |