The Queen v. Cheung Yuen Hing

IN THE COURT OF APPEAL

No. 276 of 1987
(Criminal)

BETWEEN

THE QUEEN

and

CHEUNG Yuen-hing

_________________

Coram: Hon. Roberts, C.J., Hunter, J.A. & Nazareth, J.

Date of Hearing: 9th September 1987

Date of Judgment: 22nd September 1987

_________________

JUDGMENT

_________________

Hunter, J.A.

1. On 22nd May 1987 the applicant was convicted, after trial before His Honour Deputy Judge Crawshaw, of two charges of blackmail and one charge of claiming to be a member of an unlawful society. He was sentenced to three years and nine months imprisonment, concurrent, on each charge of blackmail; and to nine months imprisonment, concurrent, on the charge of claiming to be a member of an unlawful society. He sought leave to appeal against both conviction and sentence. The court dismissed both applications, but in respect of the former said it would give its reasons later in writing. This we now do.

2. The case concerned the activities of unlicensed hawkers in the vicinity of Yuen Chau Kok Temporary Housing Area. It depended upon the evidence of two such hawkers PW1, LAM Yuet-fo and PW2, CHEUNG Yeung-nang. PW1 asserted that in January 1981 the applicant told him that the area belonged to him and that he could not hawk there unless he paid $200 a month. This demand was the subject matter of charge one. PW1’s evidence was that in consequence he paid the applicant $200 that month and regularly every month thereafter until October 1986 – a period of about five and three quarter years.

3. PW2 asserted that in effect the same thing happened to him when he took over his cousin’s stall at the site in July 1983. The defendant said to him that he had to charge $200 a month as protection money. Consequent upon this demand, which was the subject matter of charge 4, he said that he also paid $200 that month and monthly thereafter up to October 1986, a period of some two and a half years. PW2 further said that the applicant supported his demand by asserting that he was a member of Yee Kwan. Save for the addition of expert and unchallenged evidence from a police officer to the effect that Yee Kwan was an unlawful triad society, the prosecution's case depended entirely upon the credibility and reliability of PW1 and PW2.

4. Both witnesses were cross- examined at length. In particular in the course of his cross-examination PW2 denied that any payments to the applicant were referable to his share in the profits of a joint business, or that he and the applicant were ever in fact jointly in business together.

5. The applicant’s case in evidence was that there was no truth in any of the charges; that he never made the demands or claim alleged; or received, any money in the circumstances described. PW1 and PW2 were seeking to frame him by way of revenge for past differences. He acknowledged receiving some money from both men from time to time, which he attributed either to tea money or to his share in the profits of a poultry business he claimed to have conducted jointly with PW2 for an unspecified period.

6. The applicant called two other hawkers who had hawked in the same area. They were unable to speak as to any of the matters directly in issue, namely the demands, the payments, or the claim. They therefore seem properly to have been treated at the trial as character witnesses. They spoke of the apparent relationship of PW1; PW2 and the applicant on site. Both said that for a brief period, put at two months, PW2 and the applicant had been involved together in a poultry business.

7. The key paragraphs in the trial judge's Reasons for Verdict were expressed in the following terms:

"For the Crown I heard the evidence of Mr. LAM Yuet-fo and Mr. CHEUNG Yeung-nang. Both of them were unlicensed hawkers who had been struggling to make a living at the Yuen Chau Kok Temporary Housing Area. They were simple untutored men who told me how, beginning in 1981 and 1983 respectively, to put it shortly, the defendant demanded protection money from them if they wished to continue to hawk in that area.

(The next paragraph is omitted as irrelevant.)

The defendant suggested to them not only by his cross-examination but also by his evidence that, in effect, because they had long-standing disputes with himself and his wife they had taken their revenge by framing him up, so as to pay off an old score. There were passages in his evidence whereby it seemed that he claimed indeed to be offering them the protection they were paying for. However I refrained from reading it that way and regarded it as neutral, because after hearing the witnesses I had not the slightest hesitation in rejecting his account of events as untrue.

Inarticulate, uncomprehending, repetitive and occasionally contradictory as they were, no one listening to Mr. Leung and Mr. Cheung could have failed to hear the authentic voice of the poor and the oppressed. Their calls for help came from the heart. Driven finally to desperation by the extortions continually practised upon them, they turned to the Police.

For people in their was a brave thing to do, and the truth shone from them.

I found him guilty of charges 1, 4 and 5 and convicted him.

8. The main ground of appeal advanced in argument by Mr. Robert Buchanan for the applicant was that these reasons were inadequate and unsatisfactory. This turns upon the true construction of Section 80 of the District Court Ordinance which requires the trial judge to

"place on record a short statement of the reasons for the verdict"

in the context of Section 83(1) of the Criminal Procedure Ordinance.

9. The applicant relied principally upon the judgment of this court in Lam Kam-ming and the Queen[1].In that case O'Connor, J. summarised the effect of a number of earlier decisions dealing with the duties of District Court Judges under Section 80. Having concluded that the reasons given in that case were "too sparse and in part unsatisfactory" to satisfy Section 80, the court moved on directly to consider and in fact to apply the proviso to Section 83(1).

10. About a month after that decision was given another division of this court decided Chan King-man & Others v R[2]. In giving the decision of this court Roberts, C.J.:-

(a) approved the definition of a district judge's duty under what was then Section 30 of the District Court Ordinance given by Blair-Kerr, J. in R v RE Low[3]. It is necessary to set out only one short passage from that judgment where the judge said:

"But it must be remembered that the District Judge has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence or the arguments of counsel on the evidence or the whole of the workings of his mind in arriving at his conclusion."

(b) Restricted the observations of Mills Owens J. in R v Lam Ting-chung[4] to significant as opposed to obvious points of law.

(c) Rejected the broader view requiring precise detail expressed by Rigby C.J. in R v Law Keung[5].

11. In R v Leong How-seng[6] this court followed and applied R v Chan King-man². But it added:

“It is not, however, a licence to refrain from stating, in as short a compass as is consistent with the complexity of the case, the reasons for the verdict reached."

12. The decision in Lam Kam-ming v R¹ was largely based upon R v Law Keung⁵ and similar cases to the like effect. It must, we think, follow that the full width of the court's summary in that case can no longer be relied upon. Each case of course will turn on its own facts. Earlier in his judgment in R v Lam Tin-chung⁴ Mills Owens J. said:

"Obviously a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such evaluation has in fact been made: the public interest, not only the interest of the parties, requires no less. Certainly there may be cases where the tribunal is left with the direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if-anything, than to say which of the witnesses it believes."

This passage we think contains valauble guidance as to the judges' duties in relation to evidence, with the recognition of the limitations, where as here, he is faced with a headlong clash between two groups of witnesses.

13. Further, although we acknowledge that the mental processes are very similar, we do not think it can be right to consider the sufficiency of the judges' reasons, and if they are thought to be insufficient to move directly on to consider the proviso. One of the main purposes of the reasons is to enable the court to perform its appellate function and to consider whether the verdict is "unsafe or unsatisfactory". This is the first question. Inadequate reasons may lead to that conclusion, but will not necessarily do so.

14. So far we have been considering a judge's duty. We need hardly add that the fuller and more detailed the reasons, the simpler is this court's task in every case, and had the reasons here been fuller much time would have been saved.

15. In this case, the judge's reasons were attacked on three grounds.

(1) The first complaint was that the judge failed to deal individually and specifically with certain alleged discrepancies in the evidence of PW1 and PW2. But the main relevance of discrepancies is the effect they have upon credibility. This is how they were recognised and dealt with by the judge. We accept his approach as correct, more readily, in view of the comparatively trivial matters relied upon.

(2) There was more substance in the second criticism which was that the judge failed to evaluate the impact of the two defence witnesses. He did not expressly refer to their evidence and it would have been simpler and better if he had. But the real potential significance of their evidence was its effect (if any) upon the credit of the applicant and perhaps also PW2. The judge's use of the phrase "the witnesses" when he is dealing with the applicant's evidence, shows that he took into account the evidence both of the applicant and these witnesses, before rejecting the applicant's account of events.

(3) The third criticism is that, regrettably we think, the judge gives no reasons leading to his conclusion on Charge 5. It was not in issue that Yee Kwan was a triad society. So the only question was where the applicant made the claim alleged, namely whether the judge believed PW2 to the exclusion of the applicant. It necessary follows from the judge's earlier reasoning that he did.

16. We therefore concluded that there was no substance in these and the other complaints made by the applicant and dismissed his application.

Mr. Buchanan (M/s John M. Pickavant & Co.) for Applicant

Mr. I.G. Cross, Sn. Asst. Crown Prosecutor for Crown/Respondent

[1]  No. 607/79 (Unreported)

[2]  1980 HKLR 105

[3]  1961 HKLR 13

[4]  1970 HKLR 105 at p.113

[5]  No. 625/72 (Unreported)

[6]  1982 HKLR 245