HKSAR v. Lo Shing Bou

CACC000660/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.660
(Criminal)

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Coram: Hon. Power, Ag. Chief Judge H.C., Nazareth, V.-P & Leong, J.A.

Date of Hearing: 3 February 1998

Date of Judgment: 3 February 1998

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J U D G M E N T

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Power, Ag. Chief Judge H.C. (giving the judgment of the Court):

1. The applicant faced one count that he, together with Chow Pak-yau ("Chow"), on or about 12th May 1995, in Hong Kong, lent Yeung Hon-man the sum of $10,000 at an excessive rate of interest. He pleaded not guilty to that charge but was found guilty after trial before Judge Chua in the District Court and was sentenced to imprisonment for eight months. He now seeks leave to appeal against that conviction.

2. The prosecution evidence came principally from Yeung Hon-man, the victim, and from his brother-in-law Mui Yat-kai ("Mui").

3. It was the prosecution case that in October 1994, the victim had borrowed $15,000 from a loan shark. He paid an extortionate interest on that loan until March of 1995. At that time repayment in full was demanded and he sought Mui's help to raise a further loan. Mui put him in touch with Chow. On 12th May 1995, Chow deposited $9,200 in the bank account of the victim's sister. This was a $10,000 loan but was less that amount by $800 which was said to be for "handling charges". Interest of $1,250 was to be paid every 15 days, i.e. on the 11th and 26th of each month, and there was a late payment surcharge of $125 per day.

4. It was an admitted fact that Chow had opened a Heng Seng Bank savings account and that in May, June and July, four payments of $1,250 each were paid into that account. The victim said that in June he and Mui met Chow and the applicant at the entrance of the Tai Wing Wah Restaurant in Yuen Long. He gave evidence that the applicant at that meeting said that:

"the loan was provided by his company. He said, 'You are clear of the method of payment?' I then told him it was clear to me. I then gave him a water bill and a photocopy of my ID card."

He said that the applicant gave him a Hongkong Bank account number into which the interest of $1,250 was to be paid. The victim said that thereafter he had paid, according to his memory, about $29,000 into that account.

5. There were, importantly, admitted facts in this matter. It was, in our view, an admission of crucial significance that the victim had, from July of 1995 until March of 1996, made 16 payments totalling $22,800 into the Hongkong Bank account of the applicant. It was also admitted that the payments of $1,250 threw up an effective interest rate of 432.298% per annum and that the applicant had a clear record.

6. By March 1996, the victim was unable to pay any more interest. He said that he met the applicant, Chow and another person on about 17th March at the Si Lei Dik Restaurant. Chow, after speaking to the applicant, came over with the applicant and told the victim that he could terminate the loan by paying $16,000 by four installments into the applicant's Hongkong Bank account. He was asked for an IOU which he gave to Chow. He said that he made only one of the $4,000 payments by giving $3,000 cash to the applicant on about 21st March and by depositing $1,000 through a friend into the Hongkong Bank account.

7. The trial judge said:

"I accept PW1's explanations for the discrepancies and omissions in his earlier police statement. Under the circumstances, I am not surprised he was inaccurate on the first amount made into his sister's account or the date in connection with the many repayments. The fact that PW2 may have said something in his later police statement which appears to contradict his evidence and the testimony of PW1 regarding the meeting with D1 and D2 outside the restaurant does not cause me to doubt this meeting took place as PW1 has described, nor does the fact that D1 and D2 have not computed the $125 for late payments despite the fact PW1 only made one payment on time, that is on 11 September 1995 (see P1). By this time, D1 and D2 were asking for a final payment of $16,000 when PW1 had already made a total payment of $26,800 for an advance of $9,200.

I am satisfied beyond reasonable doubt, on the evidence, that PW2 had gone to see D1 because he was well-known for arranging loans. I infer when he told PW1 the loan was not ready, D2 had not come through with the loan. I am satisfied that D2 was the person who lent the money and caused $9,200 to be paid on 12 May 1995. At this meeting, D2 did not deny this was the situation when D1 informed PW1 that D2 was in fact the lender. Furthermore, when he was reminded of the terms, he was required to pay the two-monthly payments on the same two days of the month into D2's account.

The four initial payments into D1's accounts and his pocketing of the IOU do not affect my conclusions, nor does the fact that D1 pleaded guilty to the charge cause me to doubt both acted together in the common enterprise of this unlawful loan at the admitted offending rate of interest of 432.298 per cent per annum. Even when D1 approached PW2 to lie, it was not only to protect himself but also D2 when he asked him to say D2 had lent him $35,000 at no interest. Clearly this was to take into account the twice-monthly payments which I am satisfied constituted the payment of interest on the loan D2 made to PW1.

The prosecution having proved the ingredients of the charge against D2 beyond reasonable doubt, he is convicted of the charge." (Emphasis supplied.)

8. We refer particularly to the finding by the judge that the contradictory statements by Mui did not cause her to doubt that the meeting at the Tai Wing Wah Restaurant had taken place.

9. Mr. Matthews, who also appeared for the applicant below, has argued three grounds. In the first, he submits that the judge failed properly to evaluate the evidence and in particular, but not limited to, the evidence of Mui as to whether or not a meeting took place outside the Tai Wing Wah Restaurant in Yuen Long where the applicant was alleged to have been introduced to PW1 as the provider of the unlawful loan.

10. The thrust of Mr. Matthew's argument is that Mui in his evidence in chief not only made no mention at all of any such meeting but positively indicated that no such meeting had taken place and that the trial judge failed to make specific mention of that when assessing the evidence. He refers also in this regard to the cross-examination of Mui which he says made manifest the need for particular care in this regard. The cross-examination reads as follows:

"Q. You made a statement to the police about the lies you told at the request of Mr. Chow, didn't you?

A. Yes.

Q. And that included lies that you and your brother-in-law had talked with Gary and Chow about how the loan was to be repaid outside the Tai Wing Wah Restaurant in Yuen Long?

A. Anything concerning Tai Wing Wah and related activities were not mentioned.

Q. Can I just suggest to you that in your statement to the police about the lies, the police asked you what lies did you tell to the police and your answer was, 'I lied to the police that $30,000 had been borrowed from Chow. In fact, I had all along told Chow that I borrowed the $10,000 on behalf of my brother-in-law. I also lied that I and my brother-in-law had talked with Gary and Chow about how the loan was to be repaid outside the Yuen Long Tai Wing Wah Restaurant.' And you can look at your statement to check that that's correct if you like."

The interpreter was then asked to read a passage from the statement which were as follows:

"Q. What were the lies you related to the police?

A. For example, it was said a request had been made to Chow Pak-yau to borrow $30,000. In fact, all along the time I told Chow Pak-yau that I, on behalf of my brother-in-law, Yeung Hon-man, borrowed $10,000 only. Besides, the discussion on how the loan should be repaid among my brother-in-law, Yeung Hon-man, Gary, Chow Pak-yau and me did not take place at the entrance of the Tai Wing Wah Restaurant of Yuen Long."

11. There was, however, no response to this by Mui. What happened was that the cross-examiner went on to his next question, without requiring the witness to either acknowledge or explain what was in the statement. He asked:

"Q. Really, what this Mr. Chow was doing was asking you to tell lies on his behalf to save his neck in this loan-sharking matter, wasn't it?

A. Yes."

12. The trial judge considered this cross-examination with particular care. Indeed she sent for the transcript before coming to her decision:

"In final submission, Mr. Matthews relies on PW2's acceptance under cross-examination that he had told the police he had lied about the loan arrangement which took place outside the Tai Wing Wah Restaurant to throw into doubt whether a loan was ever made by D2. He submits the payments into D2's account may have had an innocent explanation that, foolishly, people in the past have allowed others to use their bank accounts. As D2 elected, as was his right, not to give evidence there was no explanation, innocent or otherwise.

So far as my recollection of this went, I thought PW2 denied he had said this was a lie and as Mr. Lim had not re-examined, if it was said to be a lie it was not made clear what part of it was a lie or in fact the whole occurrence of the meeting was a lie. Mr. Lim said his recollection was PW1 did not say PW2 was present at the meeting so he had not re-examined because this did not conflict with or affect PW1's credibility about the occurrence of this meeting. It was Mr. Matthews's recollection that PW1 said PW2 was present.

Because of the confusion and different recollections of the evidence, and because PW2's witness statement is not before me, I had called for the transcript of the evidence before preparing my verdict. A copy has now been provided to Mr. and Mr. Matthews.

It appears PW2 denied in court mentioning this meeting to the police at the particular interview. Mr. Matthews then read out the second question and answer of the statement taken on 12 December 1996 at 1300 hours, focusing on the lies he had previously told the police, but that after the particular question and answer were read to him to contradict his denial, he was not asked if he had given the recorded answer. This may explain why there was no re-examination. I am also satisfied PW1 did say PW2 was present at this meeting."

13. The question before this court as posed by Mr. Matthews was whether the judge's finding was flawed given that she accepted the evidence of the victim as to the meeting outside the restaurant without reference to the fact that Mui, in his evidence in chief, had indicated that no such meeting took place and despite the cross-examination of Mui which left that question unresolved. In our view it was not. The judge we have no doubt had in mind the conflicts between the evidence of the victim and Mui. The evidence of the victim which she accepted was clear and was never challenged in cross-examination. It was further given cogent support by the admitted facts. We do not consider that her failure to mention the evidence in chief of Mui lays any basis for the suggestion that she failed properly to evaluate the evidence.

14. The second ground is that the judge failed adequately or at all to consider the discrepancies between the evidence of PW1 and PW2.

15. The principal discrepancy is the one with which we have already dealt above.

16. We were referred to other suggested discrepancies. Firstly, it was suggested that the evidence leaves in doubt the identity of the person to whom the loan was made. We do not agree. There was clear evidence, if it was accepted and the judge did accept it, that the victim, through his brother-in-law, obtained a loan.

17. Secondly, it was suggested that the evidence did not establish that the applicant was the lender. Again if evidence as to the meeting outside the restaurant was accepted, and it was, it clearly established that the applicant was the lender.

18. Thirdly, there was a submission that the evidence from the victim that the meeting was in June should have left grave doubts as to his credibility as, given the dates in the admitted facts, the meeting could not have taken place in the month of June but must have been in July. The judge was, however, aware of this matter and dealt properly with it as follows:

"Mr. Matthews has further submitted on this meeting that as the last payment into D1's account was on 17 July and the first into D2's account was on the 27th of that month, the said meeting, if it took place at all, could not have been in June as PW1 has said, but must be between these dates. I agree, I think PW1 has made a mistake and this meeting took place in July, not June."

19. Mr. Matthews arguing his third ground submits that this was a case which turned on fundamental issues of credibility, particularly in view of the fact that both the victim and Mui had, in relation to matters before the court, told lies to the police in the course of the mitigation, and that the judge's decision was flawed as she failed to remind herself in any way of the clear record of the applicant. This court has held, and we repeat, that a professional judge sitting alone is not required to make specific mention of the good character of a defendant except in exceptional circumstances which did not, we are satisfied, exist in the present case.

20. There was cogent evidence against the applicant. It came from PW1 and it was given support of the strongest kind by the admitted facts. We are satisfied that the judge was right to act upon that evidence and to convict.

Representation:

Mr. A.A. Bruce, S.C. & Mr. Vincent Wong (D.P.P.) for the Respondent.

Mr. Matthews (Messrs. Ip, Kwan & Co.) for the Applicant.