Lau Wai-kit v. The Queen
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CACC000083/1983 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION Criminal Appeal No. 83 of 1983 _________________ BETWEEN:
_________________ Coram: de Basto J. in Court Date of Judgment: 8 April 1983 ___________ JUDGMENT ___________ 1. The appellant was charged with claiming to be a member of a triad society and of making off without payment for food and drinks supplied at a restaurant. The appellant was found not guilty of resisting an officer in the execution of his duty. 2. Two witnesses were called by the Crown in support of the two offences of which the appellant was convicted. 3. The. first Crown witness was the manager of the Lung Uk Restaurant where the offences were alleged to have taken place I will refer to this witness as "the manager". The manager testified that at 9 p.m. on the 10th July 1982 a group, eventually totalling some 20 men (including the appellant), entered the restaurant. They sat at tables specified by the witness. They ordered beer and food, walked around from table to table, ran around banging tables with spoons and frightening some customers. Customers at three or four tables complained and left. The manager testified that at about midnight the appellant who was at table No.9 stood up and said "Give me the bills for all those tables" saying he would pay all those bills and pointing to tables 5, 9, 11, 28 and 35 - the appellant told the manager the men at those tables were his "younger brothers" - the manager produced the six bills totalling $917 40 (Exhibit P2 (1)-(6)). The appellant told the manager he was "the elder brother of the Wo Shing Wo". He also said he would not want to pay the bill. The manager then called the owner of the restaurant and then he, the manager, left. 4. The manager testified that on the 22nd July 1982 at about 10 p.m. he saw the owner of the restaurant talking to some police officers who were regular customers of the restaurant. At about midnight the appellant together with three men who had also been present on the evening of the 10th July entered. The manager heard a voice say "arrest Lau-kit". Then he saw a struggle between the :. appellant and three men. Subsequently the witness saw four men arrested. 5. At the trial the appellant was represented by Counsel. The cross-examination of the manager is recorded in eight type-written lines. Most of the cross-examination seems to have been directed at establishing that the owner and the appellant knew one another prior to the 10th July. It was suggested to the manager that the appellant had not referred to the Wo shing Wo and that the appellant had only agreed to pay his own share of the bill - apart from that, the manager's evidence was not challenged. 6. The learned magistrate heard and accepted the evidence of an expert in triad societies as to the various expressions alleged to have been used by the appellant on the 10th/11th July. 7. The second prosecution witness was the owner of the restaurant ("the owner"). He testified. that "at about 10 a.m." on the 11th July(Counsel appeared to agree the time should probably have read " at about 1 a.m.") he was called by the manager. He found things "very confused, people were shouting and wandering about". He sat down with the appellant - they introduced themselves - the owner asked the appellant what was wrong with the bill - the appellant did not reply but he said he was an elder brother of Wo Shing Yee and the "tor-dei" of the district - he also stated he wanted to be the "tai-cheung" of the restaurant.. The owner became afraid as he understood the appellant to mean he was "a triad bully boy" and expected employment as a bouncer and protector. The owner said he could not make a decision until he had discussed the matter with his shareholders. The appellant then gave the owner the number of his paging machine and told the owner to contact him. The appellant left without the bills being paid. The owner said he did not report the matter to the police because he was frightened of the appellant. Then the owner went on to refer to the 22nd July 1982 when the appellant and three companions came to the restaurant at about midnight. Seeing the appellant the owner said he told his friends) about what had happened on the 11th July - "they" told him to make a report to the police. He told them he was . afraid of future trouble. Then he saw one of his friends approach the appellant - the appellant pushed that friend away. The appellant called . his friends over. The police revealed their identities and he related how the appellant and his companions were arrested by the police. 8. The whole cross-examination of the owner is covered in 15 type-written lines. The cross-examination includes references to how long the owner had known the appellant, to whether the appellant had been overcharged, to the fact that the police in the restaurant on the 23rd July had been, for varying periods, regular customers at this restaurant and that the owner knew they worked in the Triad Society Bureau, that the owner neither paged the appellant nor gave the paging number to any of the police officers, that he made no report to the police as to what happened on the 11th July. The owner also said in cross-examination that he handed the bills Exhibit P2 to the police on the 23rd July. 9. A number of police officers testified, inter alia, about the incident on the 23rd July and to a statement made by the appellant. The officers, or some of them, were questioned about how long they had patronized the restaurant and their social relationship with the owner. Detective Constable4542 testified that when he was having a meal at the restaurant on the 18th July the owner had told him something of what had occurred on the 11th July - he said he had suggested to the owner that he, the owner, should make "a formal report" to the police he himself took no action. He said he had no financial interest in the restaurant and he had no part in the running of it. This was, no doubt, in response to a suggestion that he was a partner or otherwise had a financial interest in the restaurant. 10. Mr. Hemmings for the appellant made a number of points. He commented on the fact that the owner had not made a complaint on or about the 11th July despite the fact that he was friendly with police officers who were his regular customers, especially in. view of the fact that he knew that those officers worked for the Triad Society Bureau. The explanation by the owner that he was frightened, Mr. Hemmings suggested, was not borne out by the fact that, on the 18th July, he told DC 4542 about the incident on the 11th July. Mr. Hemmings also made the point that if the appellant had not been asked to comer to the restaurant by the owner via the appellant's paging machine, it was extremely strange he should turn up at the restaurant if there had been a genuine dispute about the bilks - Mr. Hemmings further commented on the strangeness of the appellant sitting down at a table (presumably with his companions) instead of first approaching either the manager or the owner. Mr. Hemmings also commented on the apparent availability of the bills when the appellant arrived -there was no evidence that the owner had had to go to his office to get those bills. Mr. Hemmings referred to the owner's evidence that he told the police officers about the incident on the 22nd July whereas one of the officers testified he had been told about the incident by the owner on the 18th July - it was extremely likely, according to Mr. Hemmings, that that officer would have mentioned what the owner had told him to his colleagues who were also regular customers of the restaurant. Mr. Hemmings also made mention that it would have been a more. "natural reaction" for the police officers to have asked the appellant to pay the bills before arresting him. Mr. Hemmings thought it add (1) that the owner apparently had the bills on him; (2) that the manager made no mention in his evidence of having joined the owner or the police officers no the 22nd July; (3) that the owner had not made any mention that he had told a police of officer on the 18th July about the incident on the 11th; and (4) that there was no explanation of why, if there had been a dispute over the bills, the appellant was not asked to pay before being arrested. Mr. Hemmings emphasized that while these points, taken in isolation, could not be regarded as weighty, their cumulative effect was such that it should have caused the learned magistrate to have doubts about the reliability of the Crown's evidence. Mr. Hemmings contended that while the magistrate may have considered the demean our of the witnesses he had failed to consider the details of the evidence by which I took him to mean the discrepancies and inherent improbabilities mentioned by counsel. Mr. Hemmings canvassed the point that if there was doubt about the evidence of what the witnesses said happened on the 22nd and 23rd July this doubt must reflect back on the credibility of the evidence relating to the 10th and 11th July. 11. Many of the discrepancies to which Mr. Hemmings referred seemed to me at any rate, as being more apparent than real and other matters which he referred to as "odd" did not at all strike me as such. To take but a couple of examples - the fact the police on the night of the 23rd July arrested the appellant rather than first asking him to pay the bills ignores the fact that the incident of the 11th July involved not only unpaid bills but primarily the appellant having mentioned being the elder brother of a triad society and the "tor-dei" of the district in which the restaurant was situated and of wanting to be the "tai-cheung" of that restaurant. The point of the manager not mentioning that on the 22nd July that he had joined or spoken to the owner or the police officers can probably be explained (1) by the fact he was not questioned on this point and (2) that he himself probably regarded that fact as unimportant. 12. The learned magistrate found the manager and the owner to be honest witnesses and he obviously believed them - the magistrate said he did not accept the appellant as a credible witness - the magistrate found the appellant's witness similarly (sic) "a singularly unbelievable witness of the truth". 13. In my view, the learned magistrate was perfectly entitled to come to the conclusion he did and beyond reasonable doubt. 14. The appeal is dismissed. Representation: Miss Ida CHEUNG Crown Counsel for Crown Mr. John HEMMINGS instructed by M/S Fan & Fan for appellant |