THE QUEEN v. CHUNG KING CHOR AND ANOTHER

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J U D G M E N T

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Kempster, J.A. :

1. On the 5th of October last at Wan Chai District Court, Chung King Chor and Cheung Sin Ming were convicted by H.H. Judge Saied, after trial, of blackmail, contrary to section 23(1) of the Theft Ordinance. Cheung Siu Ming was also convicted of claiming to be a member of a Triad Society, contrary to section 20(2) of the Societies Ordinance. Against those convictions they seek leave to appeal.

2. The applicants were arrested by police constables just before midnight on the 8th of August 1987 outside the Wai Wai Restaurant, Kweilin Street, Kowloon, after they had been pointed out by an employee called To Shiu Woo. To Shiu Woo gave evidence to the effect that on the 3rd of that month a group of persons had come into the restaurant, consumed food and drink, and left without paying. One of them, having claimed to be called Ah Ming, had said, and I quote, "Wo Shing Wo of Shamshuipo". This amounted to an alliterative proclamation of Triad association as was common ground. To Shiu Woo went on to describe an incident which had taken place prior to the arrest of the two applicants on the 8th of August. The character called Ah Ming had come again to the restaurant with others, some in a state of inebriation, and told the witness that he was going to collect money. But in evidence To Shiu woo identified neither applicant as having being involved either in a demand with menaces or a claim to membership of a Triad society: Statements previously made by him and by another prosecution witness were tendered. They were considered by the judge and the Crown permitted to treat not only To Shiu Woo but also the proprietress of the restaurant, upon whose evidence the judge placed, apparently, no reliance, as hostile. In the course of cross examination by the Crown To Shiu Woo agreed that one of the statements which he had made, on the 9th of August, was true and we are accordingly prepared to accept for the purposes of argument that he thereby adopted as part of his evidence that part of the statement which identified the two applicants as parties to the crimes charged. However, by contrast, during cross examination on the part both of the Crown and of counsel for the applicants he continued steadfastly to deny that the applicants were involved.

3. The judge was concerned at the obvious fear of this witness and concluded, we think. that he was frightened to tell the truth. Be that as it may these convictions can only stand if there was affirmative evidence upon which safe and satisfactory verdicts of guilt could have been reached. Looking at the matter only from the point of view of the evidence of To Shiu Woo his conflicting testimony as to identification in itself suggests that the convictions were less than safe. But there is a further crucial factor in that the trial judge said in this context:

"I take into consideration .... the evidence of senior Inspector Leung as to what (To Shiu Woo) said when pointing out the two men who were arrested"

It is conceded by the Crown, very properly. that this was hearsay evidence which the judge was not entitled to take into account. We are satisfied that it was a factor which weighed In the balance when he was considering which, If any, version of To's conflicting testimony as to identification he was to accept. In the circumstances we are bound to find the convictions both unsafe and unsatisfactory.

4. We shall accede to the applications, treat this as the hearing of the appeals and direct that the convictions be quashed and the sentences set aside. The appeals are allowed accordingly.