Ma Shui Lam v. The Queen
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CACC000123/1980
----------------- Coram: Li, J.A., Power & Barker, JJ. Date of Judgment: 14th July, 1980 ----------------- JUDGMENT ----------------- Li, J.A.: 1. This is an application for leave to appeal against conviction. The applicant was convicted of the offence of demanding with menaces. It was alleged that on the 17th December, 1978 he together with other persons with a view to gain for themselves made an unwarranted demand of $11,600 from one LAW Cheuk. LAW Cheuk was at the material time the owner of a dance hall nightclub. 2. The background giving rise to this charge was that on the night of the 16th December the applicant, having patronized the nightclub, wanted to sign for the bill. He was refused. That sparked off his anger. The prosecution case was that on the following night the applicant together with some 40 persons went to the nightclub, occupied a large number of tables, made noise, used vulgar language, all called for the same dance hostess one at the same time, spent very little money and stayed there for hours. From time to time this group of people occupying separate tables went up to the applicant to have conversation - appearing to seek instructions. In short, they made themselves a thorough nuisance that evening. This attracted the notice of the management. The owner, LAW Cheuk, finally had a word with the applicant in the owner's office. It was in the office that the applicant first demanded a sum of $10,000 before he would withdraw his men. Later, when two or three of his friends joined him, he revised his demand to that of $11,600. That was the gist of the prosecution evidence. 3. The defence in the case was that the group of people who went to the nightclub and made a nuisance on that particular evening had no connection with the applicant whatsoever. Two police detective constables were originally accused with the applicant. They were subsequently acquitted on the ground that there was insufficient evidence against the 2 constables. They both gave evidence on behalf of the applicant. Their evidence was that no such demand was made in their presence and that at all material times, when the demand was alleged to have been made, they were with the applicant as well as the owner of the nightclub. They said that the reason why they were present and intervened was not that they were friends of the applicant or they knew the applicant but because they heard that the applicant was talking to one of the managers in a loud voice. They were not on duty at that time. There was nothing more than a conversation in a loud voice in a nightclub. The two of them took upon themselves to investigate the matter. That explained their presence at the time of the complaint. There were two more witnesses for the defence. They were business partners of the applicant who testified that nothing had happened. Despite the defence evidence and the learned trial judge, having considered very carefully and analysed the evidence in detail, convicted the applicant. Hence this appeal. 4. The grounds of appeal are set out in detail at page II and III of the transcript of the appeal file. I do not intend to repeat them in detail. The complaint is that there are discrepancies in the prosecution witnesses' evidence that they were lying about a certain Sergeant Leung who was supposed to have been present in the course of the discussion between the applicant and the owner. There is also a discrepancy whether the second demand was made on the same evening or on the following day. It is alleged that the evidence of the defence had not been given due weight. Learned counsel for the applicant is not the same counsel who appeared in the court below. The grounds of appeal are not drafted by him. Having considered what learned counsel for the applicant has to say before us, and having regard to the grounds of appeal it is proper on the part of the counsel for the applicant to dissociate himself from the word "lied" or "lying" set out in the first three grounds of appeal. That, we feel, is a presumptuous remark suggesting that the court below was completely wrong in having not adjudged the prosecution witnesses as lying. 5. We have considered carefully the records as well as the reasons for verdict. We feel that it is a very thorough and carefully considered judgment. We are entirely in agreement with her analysis in the present case. We have no reason to interfere with her judgment as to which witness she should believe and which she should not. She had carefully considered the discrepancies that occurred in the evidence of the prosecution witnesses. She has also considered the question of the presence and absence of Sergeant Leung as alleged by the defence. She has also noted the denial of the prosecution witnesses as to Sergeant Leung's presence. We feel that we have no justification to interfere with the learned trial judge's decision and conclusion. 6. Perhaps we may add at the end of the hearing when the learned trial judge reached the decision and found the applicant guilty as charged learned counsel for the defence in the court below had the effrontery to say that he was amazed by that verdict and at a loss as to what to say to mitigate. He asked the court to bear in mind the 1st accused so far led a clean life. That sort of remark is, in our opinion, quite improper. In fact we are amazed by the counsel's expression of amazement in the court below. Having said so much we feel that, for the reasons aforesaid, leave to appeal against conviction must be refused. Representation: A.W. Sedgwick (Ip, Ku & Stoppa) for appellant. J.P. Chandler for the Crown/Respondent. |