R. v. Lui Wai Hong

CACC000565/1996

IN THE COURT OF APPEAL

1996, No. 565

(Criminal)

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Coram: Bokhary, Mortimer & Liu JJA in Court

Date of hearing: 30, April 1997

Date of judgment: 30, April 1997

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J U D G M E N T

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Bokhary JA:

1. This is an application for leave to appeal against conviction out of time. It comes to us from a trial before His Honour Judge Christie in the District Court.

2. Two men in their 20's were on trial. This applicant was the 2nd accused.

3. The charge sheet contains three charges. Each charge was against both accused jointly. The 1st charge was of false imprisonment. The 2nd charge was of blackmail. And the 3rd charge was of assault occasioning actual bodily harm.

4. As to the broad facts of the case, they may be taken from the second paragraph of the judge's Reasons for Verdict, in which he said:

" The alleged victim in all charges is a woman, PW3, who on the previous day had borrowed money from a loan shark in Macau to support a days' gambling. The amount demanded from her was $150,000. Whether this was correctly calculated or not is not clear but certainly she owed that person a substantial sum. She returned to Hong Kong under an escort appointed by him and was met by the two defendants. They provided transport to her home and they accompanied her to her home. She was unable to get into her home because her husband would not let her in. She remained outside the home and so did the defendants. The 1st defendant remained with her continuously until about 6 am in the morning. The 2nd defendant also, except that he absented himself for several hours. During his absence the 1st defendant made a threatening statement to PW3. After the 2nd defendant returned he assaulted her. These facts are not in dispute."

5. At first, both accused pleaded not guilty to all charges.

6. After the victim had been examined in chief, the 1st accused changed his pleas on the blackmail and assault charges to ones of guilty. And this applicant changed his plea on the assault charge to one of guilty.

7. That left the false imprisonment charge against both accused and the blackmail charge as against this applicant.

8. By his verdict delivered on August 1 last year, the judge acquitted both accused on the false imprisonment charge. But he convicted this applicant on the blackmail charge.

9. The applicant now seeks leave to appeal out of time against his conviction for blackmail.

10. The judge found: (i) a demand; (ii) that it was unwarranted; and (iii) that it was with menaces. The first two grounds of appeal go to the contention that the judge could not properly have found any of those things in the circumstances of this case.

11. As to the demand, the judge said:

" I find that a demand was implied by the defendants' presence when they met the victim off the ferry. Although, according to the evidence, the amount of money that she owed was not discussed by them until later in the evening, it is clear that they were there to obtain payment of that money."

That is common sense.

12. As to the demand being unwarranted, the judge said this:

" The demand was unwarranted because it would not be recoverable legally in Hong Kong. It was with a view to gain for themselves and the person who sent them there."

13. That observation is justified when you bear in mind that this all arose out of loan-sharking activities.

14. As to whether the unwarranted demand was with menaces, the judge, after dealing with a threat made by the other accused for which he quite rightly did not hold this applicant responsible, continued:

" The next thing that developed is that the 2nd defendant, when he returned, assaulted the victim. The question is whether this assault provided menaces to complete the offence so far as the 2nd defendant is concerned. The 2nd defendant's evidence is that he hit her once hard on the head. The victim's evidence was that his assault was much more extensive. But in view of what I said about the reliability of the victim as a witness, I accept the 2nd defendant's account. The 2nd defendant said that he applied this blow out of anger at something she had just said. In this way, the 2nd defendant seeks to separate this assault from the demand for money. But the words of the victim, which he said angered him, thwarted his object of obtaining money from her. Whether the 2nd defendant was momentarily angered or not, the underlying reason for his assault, I find, was to reinforce his demand for payment. As such, I find it amounted to menaces by the 2nd defendant and at that point the 2nd defendant became a party to the offence of blackmail."

15. That line of reasoning is justifiable.

16. The third ground of appeal consists of a great many matters of detail going essentially to the weight of the evidence.

17. It is perfectly plain that the judge was very careful in his approach to the evidence. He did not just accept everything that the victim said. He had reservations about her evidence. And he was very careful to see whether what he was sure of justified finding all the facts on which the conviction had to be based.

18. We, without the advantage of hearing and seeing the witnesses, are in no position in this case to upset the conclusion of the judge who had that advantage.

19. In the result, the application for leave to appeal against conviction out of time is dismissed.

Representation:

Mr Jerome Mattews (instructed by M/s Paul Kwong & Co) for the applicant

Mr John Reading (of the Attorney General's Chambers) for the respondent