R. v. YEUNG KAM KUEN

IN THE COURT OF APPEAL

1996, No.315
(Criminal)

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

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

J U D G M E N T

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

Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced three charges - indecent assault, false imprisonment and blackmail. They all occurred on 19th December and the particulars of the charges stated that the victim, Tsang Yee-mei, was indecently assaulted, unlawfully imprisoned and then blackmailed for $100,000.

2. The facts upon which the Crown relied are set out in the Reasons for Verdict of Judge H.C. Wong who tried the matter in the District Court. She said:

"In this case, the prosecution called the victim who is 15-year-old Tsang Yee-mei, PW1, to give evidence. She said she was, on the night of 18 December 1995, on the way home at about 10 pm, when she saw the defendant whom she had known for two weeks at the time. He was with three other men. The defendant asked her to join him for a chat and she agreed, and she went with the defendant and the other three men to the vegetable station at Ng Ka Tsuen and chatted there. As it was getting cold, PW1 went with the four men to a village stone hut (or stone house) near the vegetable station and continued to chat with the defendant."

The three friends left and she found herself alone with the applicant. He then attempted to touch her breast, she resisted and shouted and when he put his hand over her mouth she bit his finger. Thereafter he became angry and used adhesive tape to tie up her hands and covered her mouth with adhesive tape. He demanded $100,000 compensation because she had bitten his finger and later she fell asleep as did he. In the morning when they woke up he took her to another village house not far away and there he used electric wire to tie her hands and to tie her to bed. He then gagged her with a piece of cloth but she managed to spit this out. He then assaulted her by slapping and again demanded $100,000 to which she replied that a bite did not warrant such an amount but he nevertheless repeated the demand. He also threatened to do something to her younger sister and told her to hand over the money at 5 p.m. that day at Chung Yuen Store. She agreed and was then released and, having left the scene, saw a store nearby from which she made a telephone call to her father. She was telephoned by the applicant at about 2 p.m. and again reminded to bring the money at 5 p.m.

3. The father gave evidence confirming that his daughter had rung him and that he had informed the police.

4. The police waited at the store but no one turned up. The police later searched both huts and found adhesive tape, electric wire and other articles which were consistent with the victim's account.

5. At trial the applicant gave no evidence. The trial judge was satisfied that the victim was an honest witness. She said:

"I find PW1 to be an honest witness on the whole. There may have been some discrepancies in her evidence, particularly being the time she spent chatting with the defendant, and given there has been a lapse of over four months, I accept that there may be areas of discrepancies that can be explained by the lapse of time. These however, do not reduce the credibility of her evidence. This was, for PW1, a 15-year-old girl, an incident that had to her, initially, been a meeting of idle chit-chat, which had turned into a sinister incident involving false imprisonment and blackmail. PW1 was bound and gagged and then blackmailed. She was kept falsely imprisoned and was not allowed to leave until she agreed to pay a compensation of $100,000. Although the blackmail did not materialise, in that no money was ever changed hands at the end, nevertheless, the unwarranted demand was made and this was made on more than one occasion.

I accept the evidence of PW1 on what had happened. On her evidence, and on the evidence of the exhibits seized by the police at the two stone houses, I am satisfied that the charge of false imprisonment has been proved beyond all reasonable doubt. I find that PW1 was unlawfully detained against her will by the defendant at the time.

I also find that the defendant had made an unwarranted demand of $100,000 from PW1 and I am, therefore, satisfied beyond all reasonable doubt that the defendant is guilty of the charge of Blackmail.

As to the 1st charge of indecent assault, I am not satisfied from the evidence adduced at the trial that this offence had taken place on all the evidence before me, I find I have to acquit the defendant of this charge."

6. The applicant was sentenced to be detained in a training centre and he now seeks leave to appeal against both convictions and sentence.

7. In his written grounds he submits that the victim and her boyfriend, with whom he says he had quarrelled, could have fabricated the whole matter and could have planted the evidence that the police found. He points to discrepancies which he says occurred between the evidence of the police officer and of the victim as to the making of the telephone call to her father. He also asks this court to have regard to discrepancies which, he says, existed in the evidence of the victim as to the time of the occurrence of the offences. He further complains of the failure of the police properly to investigate the matter and in particular of their failure to locate any of the other three males who were said to have been present at the time when he and the victim first met. Finally he contends that the police were failing in their duty as they did not commence their investigation immediately upon the matter being reported but waited some two hours before doing so.

8. He has today raised 12 matters which he says were prepared by his family. These were, for the most part, variations of the above and were otherwise no more than matters of self serving conjecture which he contends the court should have taken into account in his favour. All of the above were matters of fact which were, if raised, for the determination of the trial judge. A number were clearly resolved against the applicant by the judge when she gave her reasons. Those others being matters of fact which were never raised at trial cannot now be relied upon before this court. The only matter that calls for this court's consideration is whether it is satisfied that the judge demonstrated that she was mindful of the discrepancies in the evidence of the victim and was, nonetheless, prepared to accept it. The applicant, as we have said, was silent when he might have given evidence in his defence. This, of course, did not in any way indicate guilt but did leave the court with only one version of what had occurred. The judge was, in our view not surprisingly, given the police evidence of the finding of the exhibits, satisfied that that was a credible version. Nothing raised in any way calls into question the propriety of the conviction.

9. We turn then to sentence. The Probation, Training Centre and Assessment Panel Reports which we have read indicate that the judge was clearly right to order that the applicant be detained in a training centre. The order was an entirely appropriate one.

10. The application for leave to appeal against sentence must also, therefore, be refused.