HKSAR v. So Loi and Another
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CACC189/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO.189 OF 2006 (ON APPEAL FROM DCCC 1226 OF 2005) --------------------- BETWEEN
---------------------- Before : Hon Stuart-Moore VP, Burrell and Suffiad JJ in Court Date of Hearing : 13 July 2007 Date of Judgment : 13 July 2007 ------------------------ J U D G M E N T ------------------------ Burrell J (giving the judgment of the Court) : 1.On 8 May 2006, both applicants (D1 and D2) were convicted after a trial in the District Court before H.H. Judge Geiser of offences of conspiracy to blackmail and claiming to be a member of a triad society. They were both sentenced to three years’ imprisonment. They both sought leave to appeal against conviction. However, today D2 has indicated that he does not wish to pursue his application and accordingly his application is dismissed. 2.In a nutshell, the allegation against the applicants was that in late September and early October 2005, they both made demands for protection money on behalf of the Sun Yee On Triad Society of which they claimed to be members. The demands were made at a dockyard at Sam Mun Chai where water ski coaches berthed their speed boats. The demand was for a monthly fee of $500 per boat owner which if not paid would result in the boats being burnt. The proprietor of the dockyard (PW1) and four boat owners (PW2 to PW5) gave evidence for the prosecution. Both applicants elected to give evidence in their defence. 3.In his written reasons for verdict, the judge made a number of findings of fact. The more important ones were as follows :
4.At later identification parades, they were both positively identified by PW1 and PW4 as the persons who had approached them and PW3 also made an identification in relation to D2. 5.In his defence, D1 said that the conversations they had had with the prosecution witnesses concerned the issue of their fishing nets being damaged by the speed boats but he denied making any demands for ‘tor dei’, he denied making any threats to burn boats or making any claim of membership of a triad society and, finally, he denied writing any notes as alleged. The judge did not believe him and did not accept his evidence. 6.The judge rightly observed that : “The issue in this case is extremely narrow and effectively boils down to one of credibility … of the witnesses ….” He described the prosecution witnesses as “straightforward”, “utterly convincing”, “unshaken in cross-examination” and “entirely truthful” and he rejected D1’s version of events. The grounds of appeal 7.On this application, D1 has been represented by Mr Kevin Hon. 8.Mr Hon’s first ground is that the judge failed to consider material discrepancies in the prosecution evidence. Two discrepancies are particularized. First, PW1 said that he followed D2 only into the boatyard whereas PW2 said that PW1 walked into the boatyard ahead of the others and described PW1’s actions slightly differently from PW1’s own version. Secondly, PW1, PW3 and PW4 gave different dates upon which they were given the note allegedly written by D1. 9.Mr Hon complains that these discrepancies were not properly addressed by the judge. The judge did not explain how he had resolved them. The judge had said in his reasons for verdict :
10.We consider this ground to be wholly without substance. The judge was aware that there had been some discrepancies but clearly did not consider them to be material. He said they were ‘minor’ and we agree. The order in which people walked into the boatyard is of no material significance. As to the note written by D1, the issue was whether or not he had written it. It was perfectly reasonable for the judge when deciding, as a fact, that it had indeed been written by him, to be unconcerned that different witnesses had remembered different dates upon which the incident had occurred. 11.It is not incumbent on a judge to deal in detail with every discrepancy or inconsistency. It is part of a judge’s role to evaluate the significance of discrepancies. The judge in this case correctly evaluated them as insignificant and as such was not required to further elaborate upon them. His failure to do so does not tarnish his factual findings in relation to the key ingredients of the offences in any way. 12.The second ground is that the conviction was unsafe and unsatisfactory. It is submitted that because of certain factors, there is a lurking doubt about D1’s guilt. The factors relied on are that PW1 had known D1 for many years and there was no explanation as to why he would suddenly ask for ‘tor dei’. Also, that D1 had only one minor conviction 18 years earlier but PW1 had three more recent and more serious convictions. 13.The judge correctly directed himself on the question of character. There can be no grounds for interfering with his findings on the evidence. He saw and heard the witnesses. We are satisfied that the applicant had a fair trial and that the submission that the application should be granted because of a lurking doubt is untenable. 14.The application is dismissed. [Submission by counsel] 15.Having given Mr Hon opportunity to address us as to why an order for loss of time should not be made, we remain satisfied that this is a case in which it is appropriate to exercise our powers under section 83W of the Criminal Procedure Ordinance, Cap. 221. We order that three months of the time that D1 has spent in custody pending the hearing of this application shall not be counted towards the three years’ sentence he is currently serving because this application was bereft of any merit.
Ms Mary Sin, SADPP of Department of Justice, for the Respondent Mr Kevin Hon, instructed by Messrs Rowdget W. Young & Co., for the 1stApplicant The 2nd Applicant in person |