THE QUEEN v. CHUI KAU AND OTHERS

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JUDGMENT

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Bewley, J.

1. This is the judgment of the Court.

2. On the 19th September 1990, in the District Court, the three applicants and two others were convicted by Judge Wilson on two charges of assault occasioning actual bodily harm and on two charges of false imprisonment. The 1st and 3rd applicants, who were the 1st and 5th defendants at trial and are brothers, had clear records and were sentenced to nine months imprisonment concurrent on each charge. The 2nd applicant (the 2nd defendant) had five previous convictions. He was sentenced to two years imprisonment concurrent on each charge. All three applicants seek leave to appeal against conviction and the 2nd applicant also seeks leave to appeal against sentence.

3. It was not in dispute that the 1st and 3rd applicants were well-known to Cheung Koon Po, the victim in the 1st and 3rd charges. The 3rd applicant or his uncle had lent money to Cheung and the 3rd applicant was pressing for repayment.

4. According to Cheung the money had been lent for the purpose of a cigarette smuggling venture but the cigarettes had been lost at sea in a typhoon. The 3rd applicant maintained that it had been lent in respect of a legitimate fishing venture. The judge did not feel it necessary to resolve this conflict.

5. Cheung was the owner of a Chinese registered fishing vessel, which he said had been moored in Shaukiwan on the 16th' April 1990; it had a crew of seven, including the 2nd victim, Cheng Sze Cheng, the engineer. Both Cheung and Cheng gave evidence and said that 10 to 20 men including the applicants suddenly boarded the vessel that evening and attacked the crew. The two victims were beaten and bundled ashore to a waiting car. The 3rd applicant appeared to be the leader. He pointed out the victims to the others and generally gave directions. He, however, did not board the car.

6. Four of the attackers, including the 1st and 2nd applicants, drove the victims to the New Territories. The 1st applicant was driving and the victims were imprisoned in the back seat between two of the other defendants.  During the journey there was a discussion on a mobile telephone concerning their destination.

7. When they reached Kwai Chung Cheung saw several police officers dealing with a traffic accident and he leant forward and pulled the steering wheel. The car swerved and came to a halt against some roadworks. Cheung struggled with the defendants and managed to climb into the front seat, open the driver's door and roll out.

8. PC13545 said he was directing traffic in Kwai Chung Road when he saw a minor accident involving the applicants' car, Cheung emerged from this car and ran towards him shouting for help. He crossed the busy street narrowly avoiding the traffic; he was holding his head and bleeding from the mouth. The PC took Cheung back to the car, which had been immobilised by the roadworks. Four men were standing beside the car but Cheng was sitting in the rear seat banging on the window. All six men, including the 1st and 2nd applicants, were taken to the police station.

9. DC10615 said that at 3:30 a.m. next morning he went with the victims in a police launch to the Shaukiwan Typhoon Shelter but he could not find their boat. He gave hearsay evidence that he had discovered from the shipping agents that they boat had returned to China.

10. DC13684 said he arrested the 3rd applicant on the 23rd April at a doctor's clinic. The back of his hand was red and swollen; he said he had fallen in the street.

11. Medical evidence was given by the doctor who examined the victims that evening. Cheung was suffering from abrasions on his left upper lip, the right side of his head and his left arm and scapula. He also had tenderness on the left side of his face and chest. Cheng had abrasions on his back ;and the back of his neck and on one finger. He also felt tenderness on the front of his chest. None of these were serious injuries.

12. The 3rd applicant was the only defendant to give evidence. He said he had arranged a meeting with Cheung at a Shaukiwan restaurant but this was changed to a Tsuen Wan restaurant. His brother and the other defendants were also to attend the dinner. There were too many for one car and it was arranged that he himself would follow later. The victims boarded the car quite willingly together with the other four defendants. No assault took place.

13. The 1st applicant made two cautioned statements which were unchallenged and were admitted in evidence. In the first statement he admitted driving the car but he said he did not know his passengers and he did not know where in Tsuen Wan they intended to go or why.

14. In the second statement he said that his brother had told him to take his friends for a ride, he did not know them. The passengers told him to go to Tsuen Wan and that the 3rd applicant would follow and would give instructions on his mobile phone.

15. The judge accepted the evidence of the two victims, which he found to be clear, unshaken and consistent and supported by the police evidence. The 1st applicant's cautioned statements and the evidence of the 3rd applicant he found absurd.

16. The judge considered the failure of the victims to complain to the toll collector at the tunnel, but he was satisfied that it was reasonable for them to say nothing in view of the fact that they were frightened and outnumbered.

17. It was put to Cheung in cross-examination that he had been visited by a man called Wong Kin Tung in the Victoria Reception Centre. This he denied. The defence then produced the visitor's record, which showed that out of 32 visits five had been made by a man of this name. The judge found that Cheung may have made a mistake about the name, but that in any event it was not a matter that affected his credibility.

18. The sole ground of appeal is that the evidence of Cheung is materially false. Mr Hemmings, who appears for the applicants, asked the court to consider under section 83V (1) (a) of the Criminal Procedure Ordinance, a letter purportedly written in China by Cheung. That section provides :-

19. Mr Saw, for the respondent, opposed the application on the grounds that the letter had not been authenticated and was, in his words, merely a piece of paper.

20. The letter purportedly signed by Cheung is a confession that his evidence in the case was wholly untrue. He said that the police had invited him to incriminate the defendants under threat of being prosecuted as an illegal immigrant. He did so because he felt he had no choice. His physical injuries had been caused, he said, when he fell out of the car.

21. This letter is exhibited to the affidavit of the applicants' solicitor, who deposes that, on or about the 22nd January this year, the family members of the Chui brothers came to his office and delivered to him a letter in Chinese apparently signed by Cheung which he himself then translated.

22. Refusing the application we felt that the a provenance of the letter was unsatisfactory, that it was likely to be unreliable and we were not satisfied that it was in the interests of justice that we should consider it under section 83V (1) (a).

23. The trial judge was faced with a factual issue. He was satisfied that the victims, whose evidence tallied very closely, were telling the truth. Their evidence was corroborated by the police, who had no motive not to tell the truth. There was no explanation for Cheng's injuries; it was not suggested that he had fallen from the ear. The cautioned statements of the 1st applicant were patently absurd, as the magistrate found, and he did not accept the 3rd applicant's evidence.

24. We were satisfied that the judge came to the correct conclusion and we refused the application for leave to appeal against conviction.

25. We allowed the 2nd applicant's application for leave to appeal against sentence and we now give our reasons.

26. The judge gave no reasons for imposing a sentence more than double that passed on the other applicants. Clearly he took into account, and rightly so, the fact that the 1st and 3rd applicants were men of good character while the 2nd applicant has five previous convictions. We think he may also have taken into account the fact that this dispute did not involve the 2nd applicant and that he may, to put it crudely, have been hired as a "heavy". That, however, in our judgment does not justify the discrepancy between the sentences imposed on the 2nd applicant and the other sentences. We are mindful, as Mr Saw reminded us, that disparity alone is no grounds for interfering with a sentence but we feel in this case that the sentence of two years is too high.

27. We allowed the application, quashed the sentences and substituted therefor concurrent sentences of one year imprisonment. We also confirmed the order of the judge that the sentences will take effect on the expiration of the sentence now being served by the 2nd applicant.