THE QUEEN v. CHEUNG YUEN MING

________________

-----------------------

J U D G M E N T

-----------------------

Barnes, J.:

1. The Applicant pleaded guilty before his Honour Judge wesley Wong in the District Court to two charges of unlawful sexual intercourse with a girl under 16 and was found guilty, after trial, on a charge of blackmail. In respect of the unlawful sexual intercourse convictions he was sentenced to imprisonment for 1 year on each and in respect of the blackmail conviction he was sentenced to imprisonment for 2 years. All sentences were ordered to be served consecutively making the overall effective period, imprisonment for 4 years.

2. He now applies for leave to appeal against the blackmail conviction and all three sentences.

3. The principal witness for the prosecution on the blackmail charge was one of the two 14 year old girls with whom he admitted committing the offence of unlawful sexual intercourse. Her evidence was that a couple of weeks after that offence was committed, she in the company of the other 14 year old girl named Hong met the Applicant in a public park, her evidence in chier as to what happened was as follows:-

"In the park we met the Defendant. He took out a bundle of photos. I did not examine the photos carefully. After that Defendant asked me to give him money and said if I do not pay him he would put the photos everywhere in Cheung Hong Estate. Defendant didn't tell me what those photos were. My understanding was that the purpose of posting the photos was to let everyone know of my sex with him. Those photos were taken while we were having sex. Hong told me this over the phone. After the Defendant told me to pay him money I was scared I pald him money." (Emphasis supplied)

4. In answer to questions from the Court, she said that there was no camera taken to the cockloft of the flat where the sexual intercourse took place and that no one in the flat had a camera. When asked whether photographs could have been taken, she said "it could or could not". When she was asked by the Court what sort of photographs she had seen, she said "I couldn't see clearly, I saw some images of person. I don't know what sort of posture". She was later asked to pay for negatives which again she did.

5. The evidence of Miss Hong was that it was the Complainant who told her about the photos and negatives of sex activities and of the Applicant's demand for payment of $500 in respect of them. The learned trial judge said that he was doubtrul about the evidence of Miss Hong because she had not told the whole truth, but he accepted the evidence of the Complainant and convicted the Applicant.

6. The Applicant was represented at the trial but is unrepresented before us, and has drafted his own grounds of appeal. There is no substance at all in his first ground because it relates to a cautioned statement which was ruled to be inadmissible. His other grounds call for consideration as they allege in effect that had the trial judge given proper consideration to the evidence, he would not have convicted.

7. In his Reasons for Verdict, the learned trial judge recited the evidence of the Complainant mentioned earlier, said he accepted it totally noted that the Applicant had failed to give or call any witnesses to give evidence, and said that there was "no evidence to contradict the evidence of the vietim. He then went on to say this:-

"I found that the accused had made use of the innocence of the victim, after havingsex with her, extorted money from her by showing to her a bundle of photographs claiming to be photographs taken while they were having sex. The victim was afraid that he might place the photographs in the estate she lives.

For reasons above I am satisfied beyond reasonable doubt that the case of blackmall had been proved." (Emphasis supplied).

8. In that passage, the learned judge misdirected himself as there was no admissible evidence that the Applicant had ever made any such claim in relation to the photographs. The only reference to the nature of the photographs was by way of the inadmissiable nearsay evidence given by Hong.

9. As that misdirection occurred in relation to a finding that the element of menaces had been established. As the learned judge also fulled to evaluate properly the evidence relevant to this issue I think that there is substance in these grounds of complaint. In those circumstances, I think that the conviction is unsafe and unsatisfactor. I would, therefore, give leave to the Applicant to appeal against the conviction treat his application as the appeal allow the appeal and quash the conviction and sentence.

Silke, Ag. C.J.,

10. I am in agreement with the conclusions reached by my Lord Mr. Justice Barnes and his reasoning therefor. I, too, would allow this appeal.

11. But before this Court leaves the matter some reference to the unsatisfactory nature of the Reasons for Verdict must be made.

12. Twice in the recent past, this Court has condemned the practice of Judges of the District Court rendering two separate Reasons for Verdict. Section 80 of the District Court Ordinance, Cap. 336 reads:

"Before pronouncing judgment, a judge shall recorded 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."

13. We have had the benefit of the transcript in this particular application. At the conclusion of the trial the judge gave what the record describes as an "Oral Verdict". This, in short compass, makes reference to the witnesses whose evidence he accepted, those whom he rejected and his findings. He concluded by saying: "I will elaborate on my findings should there be an appeal".

14. He later made out a more complete Reasons for Verdict, a certified copy of which is dated the 22nd March 1989. The verdict had been rendered on the 21st February 1989. As the later Reasons are undated we are not aware when they were actually prepared. Those reasons contained the misdirections, both as to fact and as to law, which, as my Lord has said in the judgment just delivered, indicate a failure to properly evaluate the evidence.

15. It cannot be too strongly emphasized that while section 80 remains as it is, a Judge of the District Court is required to observe its terms and, either at the same time as recording his verdict or so soon thereafter as may be, there must be placed on record a short statement for his Reasons for Verdict and "so soon thereafter as may be" does not mean waiting for an application for leave to appeal. The better practice is to let the man who has been convicted know why he has been so convicted at the time that takes place, for a conviction may well lead to a long period or incarceration in prison. But whichever course is taken the statutory provisions of section 80 should be borne in mind.

Fuad, V.P.:

16. I agree with both the judgments just delivered.

Sentence

barnes, J.:

17. The Applicant applies for leave to appeal against the sentences imposed in respect of his convictions on two charges of unlawful intercourse with a girl under 16 years of age. He pleaded guilty to each offence. The girls at the time were just over the age of 14 years and the Applicant was 28 years of age. He had a criminal record indicating that he had been before the Court on five previous occasions but none of those convictions related to an offence of a sexual nature. Before us he complains that counsel who represented him in the Court below did not mitigate on his benalf. The record shows, however, that his counsel did put before the learned trial judge the matters which the Applicant has repeated before us.

18. The Applicant contends that the sentences, having been ordered to run consecutively are in total excessive. Having regard to the Applicant's age and the age of the girls, we think that each sentence was the appropriate sentence. They were two separate incidents involving two girls. We agree with the order which the learned judge made that the sentences should be served consecutively. We see no merit in the application and it is refused.