The Queen v. Hui Lap Keung and Others

CACC000123/1988

Headnote: District APPEAL COMMITTEEons on compliance with section 80 Cap. 336.

IN THE COURT OF APPEAL

BETWEEN

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Coram: Cons, Silke, & Fuad, VV.-P.

Date of Hearing: 31st August 1988

Date of Judgment: 9th September 1988

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J U D G M E N T

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Silke, V. P.:

1. Hui Lap Keung - "D1" -, Yip Lin Mau - "D2" and Lee Kwok Leung - "D3" - appeared for trial in the District Court before His Honour Judge Cameron on two charges of blackmail. Both were said to have taken place on 23rd September 1987 and the first related to an unwarranted demand of $8,000 from Madam Tsoi Chi Ling: the second, a similar demand from Miss Kwok Pui Kam.

2. All three Applicants now seek leave to appeal' against their conviction. All three received the same sentence of 3 years' imprisonment on each count concurrent. D2 and D3, should it be necessary, seek leave to appeal against their sentences.

3. Kwok Man Run was a gambler. He went to Macau on 15th September and by one o'clock on the morning, of 21st September he had lost all his money. He was approached with the suggestion of a loan by one Ah Fung. Ah Fung introduced him to Dl and D2 who gave a loan of $3,000. Ah Fung received 10% commission. Kwok returned to the tables in the company of the other three and lost. He, unsuccessfully, asked for a loan from a friend in order to repay D1 and D2. He then telephoned his sister, Miss Kwok Hui Kam, who was in Hong Kong and asked her to deposit $3,500 in one of his bank accounts. D1 also spoke to Miss Kwok. She was unable to meet the request as she did not have the money.

4. Kwok promised to repay Dl on that same evening. He went to a bank in Macau from which he withdrew $1,040. With this he went back to the tables and lost again. He then slept for a considerable period of time.

5. D3 was known to Kwok and early in the morning of 23rd September he rang him to obtain a loan. He received $3,000, less $200 immediately deducted by D3. At two o'clock that morning Kwok, D3 and a man, Ah Tak, went to the casino in the Oriental Hotel and lost yet again. He then asked D3 for more money but D3 required some form of deposit in a bank in Macau.

6. Kwok then rang his mother, Madam Tsoi Chi Ling, to ask her to get Miss Kwok, the sister, to put $3,500 into his own account and 54,000 into D3's account. To effect this last, D3 gave Kwok his Bank of China card and Kwok in turn gave the account number to his mother who then wrote it doom on a piece of paper. That piece of paper was produced at trial.

7. Shortly after this, D3 introduced Kwok to a man called Ah So whom he described as his boss. A further loan of $3,000 was made. Kwok returned to the casino with D3, Ah So and Ah Tak and this time he actually won $8,000. Of this he gave $5,000 to Ah So in part payment of the loans already made. He continued to gamble and lost the balance of his winnings.

8. As the party were leaving the casino they ran into D1 and D2. D1 asked about repayment. Kwok could not pay. The two groups then discussed the matter and Kwok was taken to a room in the Hotel Grande, a room, the group rented in his name.  Dl remained downstairs in the hotel hut D2, D3, Ah So and Ah Tak went up with Kwok.

9. His position was discussed. He was asked for the telephone number of his sister's work place and he gave a number which proved incorrect. He was then assaulted by the four men, an assault which left him bleeding from the back of the head. He eventually remembered the correct number and a telephone call was made to Miss Kwok in the course of which both Kwok and Ah So spoke to her. She was again asked to deposit money in Kwok's account and she was told of his "bleeding head".

10. Kwok then rang his mother and made a similar request. She was told of his condition and both Ah So and D2 spoke to her

11. In the course of the evening, many phone calls were made to both the mother and the sister in Hong Kong. In the course of these, D1 - who had by this time come to the new room where Kwok had been taken - D2, D3 and Ah So all spoke to each of them and made threats. Kwok would be harmed and further he would he killed.

12. Eventually it was agreed that D1, D2 and D3 would return to Hong Kong with Kwok and go to the mother's place to collect the money due. They did return and, the mother having made a report to the police, when they arrived at her home they were arrested.

13. The evidence which I have recited came from Kwok, his mother and his sister. Cross-examination was cursory and indeed there was no cross-examination at all on behalf of D3.

14. Found on D1 upon his arrest was an I.O.U. signed by Kwok relating to the sum due and bills for the telephone calls made from the hotel to Hone Kong. D3's banker's card was found upon him. Also found in possession of D3 was a further I.O.U.. Medical Reports were produced as to the injuries suffered by Kwok.

15. In the course of the trial there was introduced into evidence without contest cautioned statements from each of D1, D2 and D3. All three were represented. None of them gave evidence nor did they seek to call any witnesses.

16. The only live issue at trial was: Were the demands made with menaces: no real issue was taken as to the making of the loans.

17. Immediately upon the conclusion of the trial, the trial judge gave his reasons for finding the Applicants guilty saying this:

"The main witnesses PW4 [Kwok], PW5 [Miss Kwok] and PW6 [Madam Tsoi Chi Ling] generally gave their evidence clearly and well and were not discredited in cross-examination. On their evidence together with the documentary evidence in this case I am satisfied beyond reasonable doubt that all 3 Defendants are guilty in respect of both Counts."

18. Section 80 of the District Court Ordinance Cap. 336 provides that:

"Before pronouncing, judgment, a Judge shall record his verdict and, at the same time or so soon thereafter as may be shall also place on record a short statement of the reasons for the verdict."

19. Presumably in intended compliance therewith the judge subsequently entered on the record a ten page document headed "Decision". As to the actual reasons for his verdict it hardly takes us further than he recorded at the time, but we accept that some discussion of the evidence, and where appropriate, reference to unusual features of the case, is usual and to be expected in a well drawn "Reasons for Verdict". What is not usual or to be expected are two "Reasons for Verdict", and we would not wish to encourage that as a practice. Difficulties would for example arise if there were any inconsistency. In our view the best course is to make public, and place on the record, all that needs to be said in the particular instance at the time of the verdict. But if that is not possible the judge should, in the first instance, confine himself to the verdict alone.

20. Be that as it may, Mr. Grounds, who appears for the Applicants in this Court, takes three main points. First, that the trial judge failed to be seen to direct himself that the cautioned statements made by the Applicants re admissible only again the individual maker and not against the other Applicants; second: the at the trial judge then fell into the error of in fact using, matters in the statement of the individual as evidence against the others; third that: the trial, judge failed to be seen to direct himself that he must give separate consideration to the case of each of the Applicants. These overlap.

21. The format the "Decision" took was: to set out the dramatis personae: to make reference to a submission of no case based solely on a point of jurisdiction and a separate submission made on behalf of D3 that the prosecution had failed to establish an unwarranted demand: then that all the Applicants remained silent and finally, his finding of guilty against all three.

In a lengthy passage which started with the words:

"I found the following facts admitted or proved."

he went through what clearly was the evidence of the main prosecution witnesses and followed this up by a reference to the cautioned statements. That portion starts off with the phrase:

"Many of the above facts were admitted to by D1, D2 & D3 in their cautioned statements."

22. Then he recited the contents of those cautioned statements.

23. Next he went on to refer to "the exhibits produced" - the Medical Reports, the telephone bills, the I.O.U.s and the piece of paper with D3's account number on it.

24. He then dealt in full with the submissions in respect of jurisdiction and the particular submission made on D3's behalf as to the prosecution's failure to prove the menaces. He concluded, and Mr. Grounds has placed particular emphasis on this passage:

" PW4, PW15 and PW6 gave their evidence clearly and well They were cross-examined by Mr. Au for D1 and D2 but not by Mr. Yeung for D3 who did not cross-examine any of the prosecution witnesses. PW4, PW5 and PW6 were not discredited by Mr. Au's cross-examination. What inconsistences there were (sic) of a minor nature. Their evidence to a large extent was supported by the cautioned statements of the Defendants and by the other exhibits that were produced.

On consideration of all the evidence both oral and documentary I was satisfled beyond reasonable doubt that all 3 Defendants were guilty on both counts." (Emphasis supplied)

25. The use of the word documentary is stressed by Mr. Grounds, the same word having been used in the first Reasons for Verdict given at the end of the trial - the there expression being documentary evidence".

26. It is correct that nowhere appears any reference to the statement of one individual as not being evidence against any other; nor to the fact that the judge considered the case against each of the defendants separately.

27. As to what a reasons, for verdict should contain Mr. Grounds, seeks assistance from Lam Tin Chung v. The Queen [1970] H. K. L. R. 105. But this decision has clearly been overtaken by Chan Kin Man & Others v. The Queen [1970] H.K.L.R. 105. Further in Shek Abdul Rahman Bux & Others v. The Queen, Criminal Appeal No. 756 of 1981 (unreported), Sir Denys Roberts, C. J., in delivering the Judgment of the Court, set out that which is now the law where a District Judge fails to set out certain elementary rules of law in the, course of those Reasons. At page 8 of the Report, he said this the issue there being a failure by the trial judge to bring together the evidence as related to each defendant separately.

"It is correct that the judge did not indicate that be realized that it was his duty to consider the case for and against each defendant separately. But we do not think that it should be incumbent upon a district judge to set out such an elementary rule in this judgment. Unless it is clear that be did not follow this rule, it should be assumed that he did."

28. We must therefore assume that the judge did have the rules in mind unless it be shown clearly to us that he failed to treat the matters complained of in the manner he should.

29. However, when a District Judge fails to be seen to give himself essential directions, however elementary they may be, an appellate court will naturally scrutinize that which he does say in his Reasons for Verdict with particular care.

30. Here, we have anxiously considered the complained of references to the "documentary" evidence and the sentence "their evidence to a large extent was supported by the cautioned statements of the defendants .....". Mr. Grounds, in his concise and helpful submission, has used that the method of recital of the cautioned statements, in which each of the Applicants inevitably made reference to one or other of his co-defendants, and the two matters to which we have just made reference combined are sufficient cause such disquiet in this Court that it should find the convictions to be unsafe and unsatisfactory.

31. It should be noted however that the statement of D1 while accepting that demands were made denied any menaces though it indicated he knew of an assault upon Kwok. D2 admitted assaulting Kwok: D3 made no menaces admission at all.

32. If the trial judge had made it clear, when he made the complained of references and used the expressions he did, that the cautioned statements supported the facts of loans being made and nothing more then there could have been no quarrel. The evidence of Kwok, his sister and his mother, in the absence of any contest, and there really was none, was more than sufficient to ground the conviction. We think that where the trial judge set out the details of the cautioned statements he was doing no less and no more than reciting matters which were in evidence before him. We are not persuaded that the somewhat unfortunate phraseology to which we have been referred - and which certainly pave colour to Mr. Grounds' submissions - was indicative of the trial judge falling into error. The verdict stood or fell on the existence of menaces. The evidence, leaving aside anything contained in the cautioned statements, clearly implicated individually each of the Applicants in the offering of the menaces which culminated in the journey to Hong Kong and their presence at Madam Tsoi's residence.

33. Being not so persuaded we do not think these convictions to be either unsafe or unsatisfactory. The application for leave to appeal against conviction by all three Applicants is dismissed.

Representation:

Christopher Grounds, Esq. (D.L.A.) for all Applicants on conviction.

D2, D3 - in person on sentence.

I.G. Cross, Esq. for Crown/Respondent.