The Queen v. Lau Ping

IN THE COURT OF APPEAL

1987, No. 143
(Criminal)

BETWEEN

THE QUEEN

and

LAU PING

_________________

Coram: Yang, V.-P., Silke, V.-P. & Power, J.A.

Date of Hearing: 5th November 1987

Date of Judgment: 5th November 1987

_________________

J U D G M E N T

_________________

Silke, V.-P.:

1. Lau Ping appeared for trial in the District Court before His Honour Judge Sir George Souyave on a charge sheet containing 18 charges.

2. Charges one to three related to triad society matters – the first alleging that he professed to be a member of the “Wo Shing Yee”; the second : that he invited one Tai Tsz Tong to become a member of that society; the third: that he, being the occupier of a premises in Nelson Street, Kowloon, did knowingly allow a meeting of that society to take place there.

3. The fifth to twelfth - as did the thirteenth to sixteenth and the seventeenth – charges related to lending money at excessive rate of interest. Those first eight concerned Mr. Tai and in all but two the amount was $10,000 with the effective rate of 120%; in the two the amount of money was $15,000 with the rate of interest remaining the same.

4. The thirteenth to sixteenth charges referred to Mr. Ng Kwok Ming. Various sum of money were mentioned all at excessive rate of interest ranging from 65% to 360%.

5. The seventeenth charge referred to Mr. Yu Ping Fai, the sum being $85,000 and the rate of interest being 140%.

6. The eighteenth charge related again to Mr. Tai, and alleged his criminal intimidation by the Applicant in May 1986.

7. The fourth charge on the Charge Sheet was a general one of carrying on the business of a money lender. On that the accused was acquitted on a technicality, as we understand it, and we are no longer concerned with it.

8. Having been convicted on all the others, the Applicant was sentenced to a total of 26 months' imprisonment. He now appeals against conviction.

9. The main evidence on the first to the twelfth and the eighteenth - charges was that of Tai Tsz Tong. On the thirteenth to sixteenth Mr. Ng and on the seventeenth Mr. Yu.

10. The Defence called three witnesses, none of whom was the Applicant. There was a mass of oral and documentary evidence in a trial extending over a period of 24 days. The Defence introduced, in cross-examination, 66 documents as provisional exhibits of which only 7 were proved and received in evidence.

11. Mr. Tai gave evidence of having been granted an immunity. This, of course, was specifically in relation to the first three triad society charges. Nevertheless he was treated as a witness who had been granted an immunity.

12. It was his evidence that he had come to know the Applicant in about 1956. In 1970, he came to know he was a money lender. In 1977, he was asked to drinks by the Applicant when the Applicant was setting up the Hong Ling Money Lending Company in Nelson street. He went there frequently to play mahjong after that.

13. Mr. Tai, whose business was that of a watch-producer and watch-repairer was employed at one time by the Applicant in relation to watches. He had seen the Applicant lending money in 1980 and in the same year, the Applicant offered him membership of the triad society. He told Mr. Tai that he was a member, asked Mr. Tai if he would like, to join and Mr. Tai agreed. He later attended a meeting at the Nelson street premises and he described the ritual of intiation which there took place. He gave “lai see” of $10 to his now protector, the applicant, and three days later gave further "lai see of $366.60. Some time in 1981 or 1932 the Applicant told Mr. Tai that he was an office bearer of the society. Mr. Tai was asked to give funeral money for a member of the society which he did.

14. There was expert evidence called in relation to the existence of the society and as to the rituals which were gone through for the purpose of initiating new members.

15. Mr. Tai spoke of his loans which went back to 1983 and gave evidence supporting the particulars as set out in the charge sheet relating to the individual charges. The fact that the interest rates were excessive was not itself contested. The main defence was that the relationship between Mr. Tai and the Applicant was that of partners in business. This was the defence which was generally put in the course of cross-examination, and denied, in relation to all the loan transactions.

16. Mr. Ng gave evidence that he was in the engineering business and that he had gone bankrupt in 1985. Prior to this he found it necessary to borrow money. He borrowed the money from the Applicant at excessive rate of interest. Again, as I say, the partnership aspect came in here and it was suggested that the Applicant was the silent partner of an engineering firm called Data and that the sums advanced by the Applicant were purely as an assistance to that business.

17. The seventeenth charge - Mr. Yu had said that he had borrowed first in 1982 from the Applicant. In 1983, he borrowed again. He continued to borrow although there was but one count in the charge sheet in which be figured. The Applicant had at one time guaranteed a loan obtained by him from Citibank to whose officer he introduced Mr Yu and the money was immediately paid over to the Applicant. He had a savings account opened with the Bank of East Asia. He had the account with the Citibank. The Applicant sought to control both of these accounts and in particular the savings account with the Bank of East Asia.

18. The trial judge considered in detail each and every charge and said in a general finding at page 2 of the Reasons for Verdict:

“Each charge must be considered and dealt with separately. Generally each charge rests on the main prosecution witness mentioned, but as regards most of the charges, proof of certain ingredients of the offence depends on additional evidence called by the prosecution in respect thereof. In assessing the credibility of each witness, it is necessary to look at his evidence as a whole, as well as all other relevant evidence in the case, adduced by the prosecution as well as by the defence.

On the whole of the evidence, I have no hesitation in accepting the evidence of all the prosecution witnesses as being truthful and reliable. I accept the evidence of D.W.2 and D.W.3 but reject that of D.W.1 as being unworthy of belief. My reasons for such findings on credibility will appear hereafter.”

19. We then went on specifically to deal with Mr. Tai at page 14 and said of him:

"In view of the lapse of time since the alleged loans under reference, P.W.1 (that is Mr. Tai) should not reasonably be expected from memory alone, without any aide-memoire, to remember their exact dates. It is not surprising, therefore, that he could only remember the dates of the loans by reference to the cheques he said he gave as securities, and, since the interest was payable monthly, a fact which he could remember from memory without referring to any document, he concluded they took place on the dates he mentioned. It is not surprising that he honestly and frankly admitted in cross-examination that he could not remember whether the respective cheques given by him to the accused were on the respective dates of the loans or later. The essence here is whether the respective loans under reference were made on or about the respective dates mentioned on the respective cheques given as securities."

20. Mr. Ching Wong, who appeared for the Applicant both here and below, has taken the point that the majority of the charges were never amended to include the expression "on or about" hut we do not think that anything turns on this. The dates in the charge sheet are sufficiently close to the evidence which was given to make an amendment unnecessary. No one was misled.

21. At page 16, the trial judge went on:

“On a full consideration of the whole of the relevant evidence in the case, I am fully satisfied that P.W.1 was an honest and reliable witness. He gave his evidence honestly and as to the best of his recollection, and he struck me as being a witness of truth. In weighing and assessing his credibility and reliability, allowance must be made to the lapse of time since the incidents under review took place and the nature of such evidence. The related documents produced in each cases supports and bears up his testimony. I am satisfied beyond reasonable doubt that the essence of what he testified is true and reliable and will act thereon.”

22. In relation to the triad charges, he had reminded himself that the witness was giving evidence holding an immunity and he decided that he should be “treated as an accomplice”. He gave himself the full warning necessary in those circumstances.

23. The fact that he used the expression quoted is one of the grounds of appeal as is the issue of the use of the word "invite" in the second charge.

24. On the first all that the judge was doing was being very careful in his consideration of the evidence of a triad society member against the one who arrange for him to be one. On the second we think the word "invite" to mean exactly what it says and to describe accurately what took place.

25. In respect of Mr. Ng, he came to very similar findings of credibility and at page 32 he said:

“In everything and assessing the credibility of P.W.3 on this issue, I have not overlooked the facts that by July 1984 P.W.3 owed a considerable sum of money to the accused and yet no security of any kind was required by the accused for that loan. P.W.3 was cross-examined on this issue and was referred to 2 passages in a previous statement he had made on this matter. The only inconsistency is that in examination in chief he stated the money was paid a couple of days after the agreement for the loan of the 12th whereas in the previous statement he mentioned that was done on the next afternoon …. "

Having considered P.W.3 on this issue as well as other issue, although it may perhaps look strange that no security was required by the accused, I am nevertheless convinced that he was also telling the truth on this issue, in as much as his evidence is on that issue as well as on others not contradicted. I do not accept that he made up that story and I see no good reason why he should have done so.”

26. At page 47, he made reference to Mr. Yu where he said:

“P.W.8 was cross-examined at length and in my view he was not at all shaken. It thought he was very frank and honest in all his answers. He explained all he could relying on documents and from memory but obviously could not explain matters which required reference to documents not before him and where because of the complexity involved and of the passage of time his memory failed him.”

27. At page 42 in relation to Mr. Ng, he had said that the prosecution had produced sufficient evidence to prove the contrary of the suggested defence beyond any reasonable doubt.

28. On question and answer in cross-examination of Mr. Ng recorded at page 223 of the record is indicative of the difficulties which arise in this case and is explanatory of some of the matters which Mr. Ching Wong has referred to us as being "inconsistencies" or "discrepancies". Mr. Ng was asked:

“Q. That is different from your oral evidence?”

and his answer was:

“A. I might be mistaken as far as order or sequence is concerned because of long lapse of time. My oral evidence is mistaken - the statement is correct. (The statement being previous statement he had made to the police) The statement was made on information on bank statement of account.”

29. The basic ground of appeal which has been argued before us is that the convictions are unsafe and unsatisfactory - this on the basis that either the trial judge misunderstood the evidence and therefore misdirected himself in fact, or he did not give sufficient consideration to the inconsistencies and discrepancies which Mr. Ching Wong said were apparent on the face of the evidence, or he wrongly found as fact that which was not. These it is submitted are sufficient to vitiate the credibility finding and thus the convictions.

30. In support of that ground, Mr. Ching Wong advanced thirty particulars, some of which were not proceeded with, to support his contention. It is unfortunate that in the drafting of many of those particulars the actual error alleges has not been set out and this has necessitated our being led through a large portion of the evidence and in detail.

31. Mr. Ching Wong accepts that no single particular itself has enough weight to upset the convictions. He relies on the “water driping on stone” principle hoping to wear away the finding of the trial judge to such an extent that he engenders in our mind a lurking doubt.

32. We accept straightaway that there was an error in the findings on charge seventeen, the loan payments became transposed, but the finings of loans remained unimpaired.

33. However, the evidence, if believed, went overwhelmingly to show a large scale and sophisticated loan sharking operation. There was interest at exorbitant rates, there were fresh loans taken to repay interest on the old. There were “helpful” arrangements to get bank loans, the help coming from the Applicant, and for which he stood guarantor were the money being paid over immediately to him. There were futher "helpful" arrangements to mortgage flat, solicitors being supplied, and the mortgage money again going directly to the Applicant. There were sham documents made at the Applicant's instigation to give a gloss of respectability to the transactions - and all this with a triad background. We would again emphasize that no evidence came from the Applicant despite the Defence contention that all these transactions were business partnerships.

34. At the conclusion of the trial, the judge had a 33-page written summary of the prosecution’s case and a 29-page skeleton of the Defence's contentions, the latter supported by one day of oral submissions. Mr. Blanchflower tells us that the skeleton followed closely the line of the argument addressed to us in this Appeal. He suggests, with some justification, that we are being asked to retry the case on the record.

35. In R. v. Chan King Man and others[1] the Chief Justice, in giving the judgment of the Court, referred at page 113 to that which was said by Blair-Kerr J. in R. v. R.E. Low[2] as to the duties of a District judge. Part of that passage which was quoted in full in Chan King Man¹ has particular relevance here:

"Of course, to the extent to which he (the District Judge) chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable.”

36. In The Queen v. Lam Tsz Wah[3], Fuad J.A., in delivering the judgment of the Court, said at page 63:

"We have already mentioned that we consider that the circumstantial evidence in this case was sufficient to be left to the jury."

(I would interpolate that it has never been suggested that the evidence was insufficient here to he left to the jury.)

“We do not accept that it raised mere suspicion, as has been contended, and therefore agree with Mr. Jackson, for the Crown, that since the applicant chose not to go into the witness box to explain the circumstances in which his finger print came to be on exhibit P.33 be cannot complain if a proper inference is drawn and if it is drawn more readily in view of his election.”

The Court then made reference to The Queen v. Sung Shui Sing[4] which was a decision of the Full Court which in turn applied R. v. Sharmpal Singh[5], decision of the Privy Council.

37. We have carefully considered the submissions directed to us in respect of each of the multitudinous particulars with which Mr. Ching Wong hopes to support his general ground of unsafe and unsatisfactory. We do not think the trial judge here to have failed in his duty in any way nor has that which Mr. Ching Wong has said to us raised in our minds the lurking doubt that he would wish us to have. We think the evidence was more than sufficient to ground the convictions, the finginds were reasonable and the application is refused.

Ching Y. Wong, Esq. & Miss Carlye F.L. Chu (Ng & Shum)

M.S. Blanchflower, Esq. for Crown/Respondent

[1]  [1980] H.K.L.R. 105

[2]  [1961] H.K.L.R. 13

[3]  [1984] H.K.L.R. 54

[4]  [1962] H.K.L.R. 587

[5]  [1962] A.C. 188 (P.C.)