THE QUEEN v. CHOW FAT-KAI (D1) AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO 764 OF 1988

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REASONS FOR JUDGMENT

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1. On the 27th July 1988 the three appellants were convicted of a number of offences in the North Kowloon Magistrates Court and sentenced to terms of imprisonment. The 1st and 2nd appellants were both convicted after, trial of (A) Robbery, (B) Assault occasioning actual bodily harm, and (C) Blackmail. The 3rd appellant was convicted of only robbery and blackmail. They all appealed against their convictions on the ground that in all the circumstances the convictions against the appellants were unsafe and unsatisfactory.

2. The case was somewhat unusual in that the victim (PW1) and the alleged robbers were in fact friends who had known each other for over half a year. The 3rd appellant had in fact lived with the prosecution witness. All three accused had been convicted on the evidence of this one prosecution witnesss who was the only witness called by the Crown. Furthermore, the evidence of this witness was full of contradictions and inconsistences on numerous matters.

3. It was the case of the appellants that his evidence in fact was so contradictory and so full of inconsistences as to make their convictions unsafe and unsatisfactory. Futhermore, it was clear from his evidence that he said he was unsure about many significant features in the version he put before the court. It was the case of the appellants that the learned magistrate erred in that he placed too much or undue weight on the evidence of PW1, in that he faired to give any or any sufficient consideration to the contradictions and inconsistences which were then particularised in the grounds or appeal. In so far as the 2nd appellant was concerned it was contended that the learned magistrate erred in finding that the 2nd appellant was willing to assist and was a party to the joint enterprise when the evidence showed that the 2nd appellant was merely present.

4. Mr Tsang, who appeared for the appellants, drew my attention to numerous of discrepancies.

5. First the prosecution witness said in chief that the 1st defendant assaulted him after saying that he (the prosecution witness) had taken a long time to open the door. He referred to the following passage on page 13 of the appeal record :

"Hak Chai said I"d taken a long time to open the door so he punched me on the right chest and my stomach".

However, at the page 19 of the record in re-examination, the witness said :

"No defendant said I'd Relayed opening door. I said that because door was locked for a long time. It was 3 am and this was my feeling. I have to think. Hak Char said this is late. He said so late and then beat me. But in my own mind I don't understand why."

Secondly at pave 13 the witness said :

"I remember he asked me for money. He said he had to ask for money in order to invite his brothers or friends to drink tea."

and later returned to this subject on page 14 of the appeal record when he said :

"There was no discussion about business. They said if they got that sum of money, $540, they would take their brothers for tea."

However, Mr Tsang argued this was completely retracted by the witness at page 17 when he said in reply to the question :

"Q : Demand for $5,400 was to treat their brothers to tea?

A : That is only my feeling. I wasn't said."

Because of these inconsistencies, he complained of the magistrate's forth finding at page 30 of the record :

"Thus I found that D3 had, by reason of his familiarity with PW1, gained entry to the premises of PW1 without revealing to him the presence of Dl, D2 or the said Ah ming. Immediately upon the entry of all four men and upon a mere excuse that PW1 had been slow in opening the door, PW1 was struck in the chest and abdomen by Dl in the presence of D2 and D3 with such force that PW1 slumped to a squatting position in pain so that he was dizzy and afraid of the further use of force ........"

6. Mr Tsang complained that the magistrate accepted the evidence of the prosecution witness without considering that under cross-examination and re-examination he had retracted much of what he had said. Furthermore, he argued that it was the duty of the magistrate to deal with the discrepancies.

7. Mr Tsang also contended that PW1's evidence was contradicted by the version he had given to the police the next day after the incident. He referred again to the passage on page.14 :

"There was no discussion about business. They said if they got that sum of money, $540, they would take their brothers for tea".

8. Mr Tsang complained that this was completely retracted under cross-examination at page 18 when the witness, in answer to questions, said :

"Q : Allegations given to police at time were : You were beaten up by defendants who demanded $5,400 otherwise you would not be able to carry on your business?

A : Yes.

Q : So assault and demand for money was connected with business of your boss?

A : I'm not clear.

Q : That was mentioned to police?

A : Did I say to police money was connected with business.

Q : You told police assault and demand was connected with business?

A : I agree.

9. Thus, said Mr Tsang, his evidence was either a lie or grossly exaggerated and misleading.

10. Furthermore, at page 14, the prosecution witness said that the 3rd defendant had taken the money from him in a clear and unambiguous answer to the question as to who took the money from him. But under cross-examination, he gave the following answers on this subject :

"Q : You said D3 took the money from you?

A . Yes.

Q : You told police it was D1?

A : I remember I told police that but it was in fact D3."

11. Thus, said Mr Tsang, PW1's evidence was so confusing with regard to the incident, that it would be dangerous to rely on his evidence.  He also pointed out that the witness admitted that he was dizzy and was in great pain at the time of the incident, he could not remember the details about a whole lot of things. At page 14 he said in chief :

"I'm not clear about them asking for money. I can't remember any more about this."

He wasn's even sure whether he took out the money or whether the robbers took the money from him. At page 14 he said :

"Money was in my wallet and wallet was sticking out from my trousers pocket. Someone said your wallet is so big how come there is no money and I opened my wallet and someone took $360 from wallet - I can't say who - I can't say whether I took money out or some other person. I then put the money on the counter. I can't remember who took wallet out from pocket. May be me or someone else. I cannot remember because I was hit and my mind was not clear. When the money was taken the 4 of them were there. Ah Hoi and Hak Chai spoke to me. I don't know about the others".

At page 15, he was asked the question "When they left they say anything?", and he replied with the following answer :

"I forget many things. I still felt pain over my body. My chest. I will tell whatever I can remember. I have told the Court all I can remember I have forgotten many things".

12. Mr Tsang argued that PW1 was not even clear about why money was handed over, at page 15 he said in answer to the question "Did you give the money willingly" .

"It's difficult to answer your question.   I did not owe anyone any money and it's not unusual for people who don't have money for meals to borrow it from others.  He did not say he wanted to borrow money from me".

And later he said :

"I owed them no money. I gave them money because I thought they didn't have money to live and if I helped them then one day they would help me."

At page 16, the witness said :

"I saw doctor. A Chinese bone-setter on 12 and Caritas Medical Centre on 13 May. I told my boss I was hit and could not work. I did not report case to police on 12 because I thought incident was because my friend did not have enought money to live".

And later he said :

"I reported case because LAI Chan-tung (the brother of the 3rd appellant) had a grudge against my boss. After I reported to police my boss instructed me to get LAM Chan-tung involved in case and said I should say LAM had told them to hit me but he wasn't there so I didn't."

At page 17, the following questions and answers appeared on the record :

"Q : You assaulted because accused of having come to door slowly?

A : Yes.

Q : That's the only reason you beaten?

A : Yes.

Thus, said Mr Tsang, if force was not applied to obtain the money, there could he no robbery. At pave 18, in answer to the question "Today, you've said money was for living and you were giving money as a friend?". He gave the answer "Yes". On page 19, in answer to the question "Ho threats to obtain money?" he replied "I agree a little bit about that in my mind." Mr Tsang complained that the magistrate did not deal with these inconsistencies in his Statement of Findings and that there was no basis for the magistrate to come to the finding that the parting of the money was only as a result of the assault. That was, he submitted, pure speculation. Mr Tsang also argued that the witness had admitted that his own evidence was exaggerated when he was asked the question "You've been used by boss to drag a rival company into it and exaggerated?", answer "I agree."

13. So far as the 2nd appellant is concerned, he argued that there was no evidence to suggest that the 2nd appellant had done anything other than to he present at the time, which was not so extraordinary in vie of the fact that they were friends.

14. Mr Halley for the Crown supported the magistrate decision on the basis that the inconsistencies were all of a minor nature. So far as the 2nd appellant is concerned, he argued that the common intention was shown by the circumstances, bearing in mind the time of the day, what happened in the flat, etc.

15. I allowed the appeal and set aside the convictions on the basis that the evidence of this one prosecution witness was so full of contradictions and inconsistencies that the convictions were unsafe and unsatisfactory.