The Queen v. Yau Shui Tin

CACC000618/1987

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Coram: Hon. Cons, V.-P., Fuad, V.-P. & Mayo, J.

Date of hearing: 6 September 1988

Date of delivery of judgment: 15 September 1988

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application by Yau Shut Tin ("the Defendant") for leave to appeal two convictions recorded against him by Judge Leonard in the District Court on the 3rd December last year. One was of conspiracy to pervert the course of public justice; the other of common assault. The second charge had orginally been laid as assault occasioning actual bodily harm, but the judge found no evidence to support the latte element.

2. The first charge arose in this way Wong Yue Keung runs an electrical retail shop in a commercial and residential complex in Shatin. The Defendant was in a similar line of business in another complex in Shatin, and wished to extend his operations to a second shop in the same arcade as Mr. Wong. Unfortunately the management rules of the complex do not allow two shops of a similar nature to operate in the same arcade. The Defendant could therefore only achieve his wish if Mr. Wong were in some way first removed. The suggestion of the Crown is that the Defendant conceived the idea to accomplish that end by the fabrication of a false case against Mr. Wong, for he new that upon a criminal conviction the management would terminate the lease. The Defendant would then be in a position to take over the shop. Evidence was led to show that, with the help of two middlemen, a girl was recruited who would enter Mr. Wong's shop posing as a customer and then falsely accuse him of indecent assault. To provide the necessary corroboration a security guard at the complex, charged below as the 4th Defendant would Pretend that he had witnessed the incident.

3. In circumstances like these it is almost inevitable that the principal witnesses will be accomplices to whom the Crown has offered immunity from prosecution in return for their giving truthful evidence. In the court below the Crown had expected to rely upon three such witnesses. Two were the middlemen, Cheng Kam Man ("Sat Man") and Lo Siu Wing; the third was the girl Kong Mei Ha. In the event however Cheng Kim Man proved hostile, the judge rejecting his evidence as wholly unreliable; and Lo Siu Wing, to whom incidentally no immunity appear to have been granted, failed to Identify the Defendant as the "Ah Tin" to whom he had referred throughout. in his account of the conspiracy. Thus Kong Met Ma was in the end the only witness who directly implicated the Defendant as playing a part therein.

4. Miss Kong's evidence was that she was approached at her place of employment in Mongkok by Lo Siu Wing and Sat Man to "play a trick" upon an electrical shop in Shatin. Money was promised and the details were explained to her. Having, given her agreement all three took a taxi to Shatin where they met a person she came to know as as Ah Tin, and whom she identified in Court as the Defendant. She also met the man who was to be the witness. This was in the carpark next to the arcade where Mr. Wong's shop was situated. The men spoke together for a while but Miss Kong, did not hear what was said. She was then called over and Set Man and the Defendant together explained to her what she was to do. The time was about 7 p.m. and apparently too early for action. Miss Kong, Sat Man and Lo Siu Wing whiled away the next hour or so with a game of billiards in a saloon on the upper floor. Returning later downstairs they met the Defendant and the man who was to be the witness. The Defendant and Sai Man yet again reminded her of what she had to do.

5. As soon as the proprietor of the shop was alone, his two employees having apparently finished work and left, Miss Kong entered the shop saying that she was looking for a hair drier. At a suitable moment, whilst she was being shown articles that might have suited her, she deliberately bumped herself into the Proprietor and ran out of the shop crying that she had been molested. The witness duly appeared, and then Lo Siu Wing who pretended to be her boy friend. An elderly security guard who had come on the scene was asked to report to the police. In due course Mr. Wong was arrested and charged with indecent assault.

6. That was on the 25th June. For reasons which need not detain us now a report was made to the I.C.A.C. and on the 8th and 9th August officers from the Commission Interviewed Miss Kong and recorded statements from her. We have not seen those statements - they were not admitted as exhibits below - but she admitted under cross-examination that in neither had she implicated the Defendant as being part of the conspiracy, although she had mentioned him as being "the person talking, with Sai Man in the carpark". She did not then allege the It he took part in teaching or rehearsing her how to "pull the trick"_. That only surfaced in a third statement to the officers, made considerably later on the 24th August. Her explanation, such as it was, was -

"I recall that at first I did not tell them about this aspect but later and (sic) recalled it and told them albeit belatedly."

7. We accept that credibility is essentially a matter for the trial judge, who was well aware of the position. But it is difficult to escape a feeling of unease that in making formal statements on two consecutive days Miss Kong should remember the presence of the Defendant, but not apparently the important part that she later said he played.

8. The judge was satisfied that Miss Kong was an honest witness. He said -

"     Having taken all these matters into account (i.e. the suggestion that she was giving false evidence in pursuance of a bargain made with I.C.A.C. the matter to which we have just referred; and his conclusion that the statements were' not written word for word at her dictation, Miss Kong being virtually illiterate) - and given myself the usual accomplice warning, and bearing in mind the fact that PW8 had been given a conditional immunity I decided that she was telling the truth. Her story as she told it in the witness box was convincing. and her account of the events in the shop was corroborated by the victim."

9. Taking corroboration as a term of art as one would expect to find it used in reasons given by a professional judge, the judge here is clearly wrong. Mr. Wong had indeed given evidence which tallied more or less with Miss Kong's account of what happened In the shop, but the events there in no way connected or tended to connect the Defendant with the conspiracy. The judge may of course have been using the word in the vernacular sense of simple confirmation, but that would seem unlikely in the context of the sentence itself, particularly when it follows so closely upon the reference to the "usual accomplice warning". It must he a matter of some moment, for as we mentioned earlier, Miss Kong was the only witness who directly implicated the Defendant. An erroneous assumption that her evidence was corroborated would be of crucial importance.

10. A third matter which has exercised our minds arose during, the evidence of Lo Siu Wing. He was the second of the middlemen who approached Miss Kong in the first instance and his evidence was generally consistent with hers up to the time of the game of billiards, save that he did not hear what passed between her and Ah Tin in the carpark. He said that he remained upstairs when she and Sai Man went down after the game and that later, after the assault had taken place, Ah Tin instructed him to go down and claim to be her boy friend.

11. No identification parade bad been held before the trial In respect of the Defendant. Objection was taken to a proposed dock identification, but the judge exercised his discretion in favour of the Crown. The record then runs -

"Court : I will permit crown counsel to ask witness if he would recognise Ah Tin if he saw him again.

(the question is asked)

A. I can.

Q. Is he in this room, today?

A. He is not here."

12. The judge dealt with the incident in these words -

" When counsel for the prosecution indicated his intention to invite a dock identifiction of Ah Tin I permitted it despite an objection by the defence. The witness gave a cursory look round and said He is not here. I noticed that D1 was wearing, spectacles on that day of the trial for the first time. The next witness, PW8 had to ask D1 to remove his spectacles before she could identify him. In view of all the other evidence, I formed the view that in saying Ah Tin was 'not here', PW7 was mistaken."

13. By saying "all the other evidence", he possibly had in mind the evidence of Miss Kong, the evidence of Mr. Chan, the estate manager that the Defendant had confided to him his wish to open a shop in that arcade, and the fact that the Defendant, not surprisingly, admitted to the nickname of "Ah Tin".

14. It is apparent that the judge relied upon Lo's evidence to some extent, for he said -

"    Apart from the matter of the dock identification, I believed the witness. In arriving at that conclusion I bore in mind the Immunity and gave myself the usual accomplice warning."

However, to what extent we are not sure, for in giving his conclusion later, after dealing with all the witnesses on the first charge, he merely said -

" After considering the evidence (the emphasis is our own), I was satisfied beyond reasonable doubt that both D1 and D4 were guilty as charged."

15. Although the written grounds of appeal allege specific irregularities and misdirections, Mr. Rodway, who now appears for the Defendant, has argued the application substantially on the one ground that both convictions were, in all the circumstances, unsafe and unsatisfactory. He has addressed us on many of what he suggests are the "circumstances" in the case. Most, with respect, are matters which do not weigh too heavily at this stave. Our real concern is with the three factors we have Just discussed. They have caused us individually different degrees of anxiety, but we are unanimously agreed that in the light of our concern as a whole, it would be unsafe to allow the verdict on the first charge to stand.

16. Mr. Wong was also the victim in relation to the second charge. On the 2nd August, when he was walking from the toilet back to his own shop, a person bumped him intentionally. Mr. Wong apologised, but instead of the person's accepting the apology, he insisted that it was Mr. Wong who had bumped him, and went so far as to accuse Mr. Wong of hitting him. After that he kicked Mr. Wong in the thigh.

17. That person was Cheung Chi Wah, who gave evidence as the first witness below. He explained how the Defendant had approached him to beat up Mr. Wong, instructing him to make it look and sound as though he in fact was the one who was being attacked. His friend, charged below as the, third Defendant, was to be there as a witness that it was indeed Cheung who was beaten. The Defendant drove both men to the complex and after they too were forced to fill in time by Playing billiards the Defendant called them down to point out Mr. Wong as the intended victim. He gave Cheung $200 in case he should need it at the police station.

18. Cheung's version of the incident itself differed little from that of Mr. Wong. He said that immediately afterwards two security guards came up and being frightened by their presence he ran away. Then fearing that he might end up in jail he took his friend to find the Defendant in the billiards saloon upstairs and all three left the complex.

19. Cheung was of course an accomplice. Nevertheless the judge accepted his evidence -

" However, after giving myself the usual accomplice warning and being alive to the dangers, I accepted his evidence as to the involvement of D1. In arriving at this conclusion, I took account of his demeanour whilst giving his evidence."

20. The only criticism that Mr. Rodway made in this respect is that the judge failed to mention an admission, made by Cheung under cross-examination, that the first of two statements he gave to the I.C.A.C. was "half true, half false". We do not think this of great importance Cheung was corroborated by Mr. Chan, the estate manager, to whom the Defendant had earlier expressed an intention of sending people to beat up Mr. Wong in order to teach him a lesson, for he felt that Mr. Wong was concerned in a particular kind of vandalism that had been causing trouble within the complex. In addition, Mr. Wong's evidence included seeing the Defendant together with Cheung and another man leaving the building just after the incident. In the circumstances we are not persuaded that his conviction for instigating the assault was either unsafe or unsatisfactory.

21. Accordingly we grant the application for leave to appeal, treat the hearing as the appeal itself and allow it with regard to the first charge. That conviction is therefore quashed. We dismiss the appeal with regard to the second charge. We shall be pleased to hear counsel as to what further, if any, order we ought to make.

Representation:

Gilbert Rodway, Q.C. & K.M. Chong (M/s Anthony Kwan & Co.) for the Applicant

J.P. McNamara, Crown Prosecutor for the Respondent