HKSAR v. FONG SHUI LEUNG

IN THE COURT OF APPEAL

1997, No. 84
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was together with four other men convicted of blackmail, theft and of claiming to be members of a Triad Society and sentenced to a total of 2½ years' imprisonment. He now seeks leave to appeal against his conviction.

2. The facts were very simple and straight forward.

3. The bar tender of the B & B Pub in Waterloo Road, Kowloon gave evidence that after a prior telephone contact two men came into the bar in the evening of 24th September 1996 and demanded protection money. He said that he would have to obtain authority from his boss. A report was made to the police. Later eight plainclothes police officers attended at the bar.

4. One of the police officers posed as the owner of the bar and another one as the landlord. Five men including the Applicant entered the bar.

5. Three of the officers said that the five men sat down and the Applicant demanded protection money of HK$5,000 saying that they were members of the Shing Wo Triad Society.

6. When the "owner" pointed out that there was not much violence in the area and could the amount be reduced one of the Applicant's co-defendants said "Nothing has happened to your place. Don't you believe we are going to destroy your pub now?"

7. A police officer then gave HK$5,000 in marked notes to the Applicant and gave a prearranged signal to the other police officers whereupon all the men were arrested. H.H. Judge Surman accepted the police officers as being truthful and reliable witnesses.

8. None of the defendants gave evidence at their trial. The judge found them all guilty on all 3 counts.

9. In his grounds of appeal the Applicant complained that the judge ignored the medical evidence and the discrepancies in the evidence of the police officers.

10. Before us he said that the judge did not deal with all of the matters which were before him. He also alleged that the police officers together had tailored their evidence. He claimed that there had been material irregularities at the trial and that the judge had been biased. Also he claimed that the marked bank notes did not prove anything. Finally he referred to the fact that the judge had mistakenly referred to the Wo On Triad Society. This would appear to have been a slip of the tongue or typing error as it was an agreed fact that the Shing Wo Trial Society was a Triad Society and reference to this was made throughout the trial. Also the judge convicted on the charge.

11. The judge did not ignore the medical evidence. He considered the evidence of a doctor who examined the Applicant 3 days after the arrest and found some red marks on his body. There was no evidence from anyone that any police officer had assaulted the Applicant and the judge rightly held that the medical evidence did not take matters further.

12. So far as the discrepancies were concerned these were of a minor nature and the judge was aware of these when he made the findings he did. There is no reason whatever to suppose that the officers had tailored their evidence.

13. There is nothing in the other matters which the Applicant has raised.

14. This application is devoid of any merit and is dismissed. We order that three months of the time spent in custody will not count as part of his sentence.

15. Although there is no appeal against the sentence, we would observe that the sentences which were imposed appear to have been unduly lenient.