THE QUEEN v. CHENG CHUNG HAI AND ANOTHER

IN THE COURT OF APPEAL

_______________

J U D G M E N T

_______________

Silke, V -P.:

1. This is the jud gment of the Court

2. Cheng Chung Hai - "D1" - and Chan Kam Fai - "D2" appeared for trial before His Honour Judge Baily in the District Court on three charges. The first: a joint charge of blackmail, the particulars being that on 10th February 1987 at the Excelsior Hotel in Gloucester Road with a view to pain for themselves they made an unwarranted demand from Kam Kwong Tat with menaces The second and third were separate charges against D1 alone; the second that of theft of $60,000 on llth February 1987 from Kam Kwong Tat; the third that of assault occasioning actual bodily harm to Kam Kwong Tat, said to have taken place on 27th February 1937 at King Kwong Street. D1 was found guilty of the first and second charges and not guilty of the third .D2 was found guilty of the first charge.

3. They now seek leave to appeal against those convictions

4. Mr. Kam Kwong Tat is a trainer of race horses. He was a witness at the trial as were Ma Man Wo (PW19), referred to as "Ma Chai", Leung Wing Keung (Pw3), Madam Yu Ngan Tai (PW5) and two employees of the Excelsior, Lau Wing Lun (PW7) and Wu Kwok Hung (PW8) Roth D1 and D2 gave evidence

5. It was the case for the Crown that Mr. Kam had known Madam Yu from the 1960s They met each other infrequently until, in 1985, she met him at the races Attending race meetings was a hobby of hers. At that time, Mr. Kam was assistant trainer to one Roy Edwards. Edwards subsequently lost his licence and the stable which he managed was taken over by Mr. Kam first on a temporary basis and then as a fully licensed trainer.

6. It was Madam Yu's evidence that she occasionally phoned Mr. Kam for racing, tips which she received and which she would pass on to Mr. Po if she met him She at first denied ever passing directly to D1 any of those tips. She acknowledged the painful fact that most tips lose and said that Mr. Kam's tips lost more often than they won.

7. Mr. Po Man Chung who by the time of trial had left Hong Kong, introduced Madam Yu to DI in 1986 at a race meeting. Po suggested to her that D1 would like to know Mr. Kam. He had the possibility of being successful in a ballot for the right to import a private purchase race horse and Dl would like to stable that horse with Mr. Kam. Madam Yu arranged a meeting at the Excelsior Hotel to effect an introduction She went there

8. At that meeting Mr. Kam said D1 mentioned to him an arrangement he had with a jockey named Staples, now a disqualified person The basis of the arrangement was that when the odds of horses, the names of which were to be given to him by Staples, were over 10/1 D1 would buy tote tickets for the jockey; if the price was under 10/1 the tip would be considered as a gift from the jockey to Dl It was suggested that the same arrangement should be come to as between Dl and Mr. Kam. Mr. Kam thought the proposal impossible as he said most winners were under the price of 10/1 so, diplomatically, he said he would telephone D1. This he did not do

9. On 10th February 1997, Mr. Kam received a phone call from D1 asking him to meet main at the Excelsior. Mr. Kam attempted to avoid the invitation but it was his evidence that Dl spoke in a fierce voice and implied that if he did not come he would he beaten. Being scared, he agreed.

10. The meeting took place that evening at the coffee shop of the Excelsior Hotel. At one table Mr. Kam, D1, D2, Ma Chai, Madam Yu and a number of other persons were present, arriving and departing at different times. A number of young men, about twenty in all, came into the coffee shop and sat at different tables. What took place at that meeting is a matter of controversy.

11. It was agreed that, when it ended, Mr. Kam paid two bills in the sum of $556.80, one being for his own table and one being for other tables at which the young men sat, for the food and drinks consumed. The meeting lasted from about 6:30 to approximately 8:20 p.m.. When it was over the people sitting at Mr. Kam's table left. So did the young men

12. Mr. Kam went on that D1 claimed compensation from him because the tips which Dl had received on Mr. Kam's horses had lost him money. Mr. Kam said he had not gambled with D1 At that point D2 spoke up and said that- his boss, D1, and he had lost therefore Mr. Kam would have to pay Mr. Kam demurred but D1, speaking fiercely, told him to think over whether he would like to be "round or flat" by which Mr. Kam understood him to mean that he, Mr. Kam, would be beaten up He became frightened and said he would think about it

13. The compensation demanded was "a sure win" quinella to a stake value of $20,000. Mr. Kam would have to put up the stake - this was the menaced demand. Threats and foul language were used.

14. Mr. Kam, thinking it impossible to give D1 the names of two horses that would surely win, again demurred He asked for Madam Yu to come to the meeting to confirm that he had never gambled with Dl. D1 nave him Madam Yu's phone number. Mr. Kam telephoned and Madam Yu agreed to come arriving after about 10 minutes.

15. It was Mr. Kam's evidence that Madam Yu asked him if he were alright to which he replied that he was not. D1 then told her to leave waving, her away and she left.

16. When the meeting ended Mr. Kam said he maintained his refusal to pay compensation and he and Ma chai left together.

17. The first controversy in the prosecution evidence which fell to be determined by the trial judge was a difference between the, evidence of Madam Yu and Mr. Kam For Madsm Yu said that when she arrived she saw Mr. Kam talking with about six or seven people. She asked Mr. Kam if anything, was going on but was told there was nothing. When he spoke to her on the telephone Mr. Kam had not indicated that anything was amiss. However, despite this Madam Yu expressed herself as being ""scared" by the number of people coming and going and thought that there might be fight She said she was going off to play mahjong whereupon Dl said to, her:

You just put your heart, at ease, nothing will happen as long as I am here."

She left. On the following day, she asked Mr. Kam if anything had happened but he replied nothing had.

18. The second controversy was a general one which arose from the evidence of Madam Yu itself for she told different stories as to whether Mr. Kam's tips were passed on through Mr. Po to D1, as to whether Mr. Kam had told her to pass on those tips to Dl and whether she had been told by either Dl or Mr. Po that Mr. Kam's tins were unreliable

19. The third controversy, and perhaps the most important arises from the evidence given by Ma chai as to what took place at this meeting The attendance of Ma Chai had been arranged by Mr. Kam. He knew a man who ran a mahjong school and whom he called his "sworn father". He had asked that man to go to the meeting with him in case of trouble, the man could not but sent Ma Chat in his place.

20. Ma Chat's evidence was to the effect that he had gone with Mr. Kam to the coffee shop at the request of the person referred to as Mr. Kam's "sworn father" having, been told that some trouble was anticipated lie did not know the nature of that trouble when he arrived there was one person at the table. This was Dl whom he did not know at that time. He thought he heard D1 say to Mr. Kam that it did not concern him, D1, for he was just a middleman. Then four other people arrived Alone of them took part in the conversation - a conversation to which Ma chai did not pay much attention. He heard no threats and he saw no woman arriving during the course of the meeting At its conclusion, all the other person left first, and then Mr. Kam and himself. As they were leaving there was a reference by Mr. Kam to people asking him for tips and to a $20,000 bet. Ma Chai said Mr. Kam asked him to tell someone to bet the quinella. In the pursuance of his duty as "minder" Ma Chai had asked some of his own friends to go to the coffee shop in case there was trouble and he saw seven or eight of them there. As they went down the stairs to leave the restaurant, he "scolded" Mr. Kam saying that as there was no trouble why had he asked him to come.

21. A fourth controversy is the manner in which Ma Chai was presented in the Court combined with the comments made by Mr. Epan who appeared for the Crown both here and below in his final address; on the evidence Ma Chai gave and the effect of that evidence.

22. Ma Chai was called by the Crown but only for the purpose of tendering for cross-examination. Mr. Egan says that he did this out of fairness to the defence He did not consider Ma Chai to be advantageous to his case 'Ma Chai's name had been on the Summary of Facts, a practice in the District Court analagous to the names on the back of the Indictment in High Court trials. There is no duty upon the Crown to call all such witnesses. It has a duty to have those witnesses available and, if they do not intend to call them themselves, to let the defence have their statements and either offer them to the defence for cross-examination, as was done here, or to leave the defence free to make up their own minds whether they wished to call them or not. Richardson v. R ⁽¹⁾; Lemay v. R⁽²⁾; Oliva⁽³⁾; v. woodhead⁽⁴⁾; Adel Muhammed P1 Dabbah v. A.G. for Palestine⁽⁵⁾.

23. Ma Chai's evidence did not support the Crown's case In hindsight it would have been' preferable had the Crown, having very properly given to the defence Ma Chai's witness statement, left it to the defence to decide whether they wished to call him. He was not re-examined

24. One of the issues raised by Mr. Rodway, who appears for Dl in this Court Mr. Remedios, who adopted Mr. Rodway's argument, appearing for D2, is that there being no attempt to have him treated as hostile and therefore the Crown being bound by the evidence he gave, Mr. Egan in his final submission was not entitled to attack, as he did, the evidence of a witnesa whom he had not sought to challenge

25. R. v. Little⁽⁶⁾ is authority for the proposition, which surprised members of this Court, that a witness can be treated as hostile in the course of his re-examination. But that authority relates to the challenged witness having given evidence-in-chief. Then, in cross-examination differing from that in chief and counsel being given leave to cross-examine in the course of re-examination. Here Mr. Egan was in no position as was the counsel in Hari⁽⁷⁾ to cross-examine Ma Chai and he, on the face of it, simply left the issue of the evidence that witness gave for the consideration of the judge

26. The question of whether it is proper for the Crown to re-examine one of its own witnesses (which Ma's evidence was even though only tendered) so as to show that his evidence was considered unreliable was fully considered in R. v. Foxford ⁽⁸⁾.There the Crown in opening its case said it would' call two witnesses but did not do so and only tendered them for cross-examination. That cross-examination produced evidence favourable to the defence and the witnesses were then re-examined by the Crown, querying their evidence. It was held that that should not have been allowed. At 204 Lowry L.C.J. said that the re-examination was irregular because re-examination:

(1)     was only to clear up points raised in cross-examination and no new material could be introduced.

(2)     Leading questions must not be asked.

(3)     Cross-examination is not permissible:

(4)     (and this is the point fundamental here) Unless the witness has proved hostile and the Judge has granted leave, a party may not attack his own witnesses' version of what happened.

27. It would seem clear then that Mr. Egan was correct in not seeking to re-examine Ma so as to discredit him but equally we do not think that it was proper for Mr. Egan to address the Court in the manner he did at trial disparaging, and indeed inviting the trial judge to disregard, the evidence of Ma. But we accept that he was in a difficult position. We are doubtful if, in the circumstances here of a witness tendered for cross-examination, it would be proper to ask the Court to treat him as hostile for the fact that he was tendered suggests to us that the Crown had a statement from him which at the least, did not support their own case. In those circumstances, it is more preferable if the witness is offered as a witness to the defence so that the Crown can make clear in the course of his evidence they do not think him to he a witness of the truth

28. I shall return later to the submissions on the effect of Ma Chai's evidence.

29. There was further evidence by the coffee shop captain, who knew Mr. Kam by sight, that he saw him at a table with six or seven people. That he overheard a reference to tips being unreliable. That he heard foul language being used. That he heard a threat to beat up Mr. Kam. He did not think the group to he friendly. He saw ten or twenty other "coarse people" as he described them come in acknowledging Mr. Kam's group.

30. Then a security officer of the hotel said he saw two groups of people, each comprising eight or ten persons, come in. This at about half past six. His attention was drawn to them by their number and by the manner in which they were dressed. He was concerned but he did not see them do anything. When be went off duty he told his successor of his concern.

31. Of the happenings on 11th February, it was first Mr. Kam's evidence that Dl phoned him. This he changed later to he himself phoning Dl offering a buy off of $20,000. The question of whether he thought over that which had happened the previous day was raised. Mr. Kam asked how much he would have to pay. To this, D1 replied that he would call Mr. Kam back after he had discussed the matter with his brothers. There was then another phone call and Dl made a demand for $60,000 accompanied, again by the "round or flat" threat. Arrangements were made for the payment of the money.

32. Mr. Kam went with a friend, Mr. Leung, whom he had asked to accompany him as a witness. He went to his bank handed over a personal. cheque in the sum of $60,000 withdrew the proceeds in $1,000 notes which he placed in an envelope given to him by the teller.

33. Mr. Leung remained outside when this went on.

34. Mr. Kam returned to his car and showed Mr. Leung money. They then went to the rendezvous point. Mr. Leung kept in the background. Dl arrived and the envelope was handed over. This was seen by Mr. Leung. Dl said he would stable his horse with Mr. Kam, an offer which Mr. Kam refused, and D1 left. Mr. Leung said he had earlier seen money in thousand dollar notes, a large quantity, in the envelope but he did not know-.the total amount.

35. Mr. Kam reported_-none of this to the police or to the Royal Hong Kong Jockey Club at the time.

36. Then came two incidents, the first on 27th February, when Mr. Kam was beaten up, the second on 13th March when Mr. Kam's car was attacked and damaged. It was these incidents which induced Mr. Kam to report the whole matter to both the police and the Jockey Club.

37. The defence was a denial of any threat at what was a generally friendly meeting on 10th February. There was some complaint, but no more than that, at Mr. Kam's having given losing tips on which money was lost. The meeting ended amicably D2 was not present at the table all the time.

38. Of the meeting and the handing over of an envelope on 11th February Dl said that there had been an arrangement for Mr. Kam and himself to meet They did. Mr. Kam could not go to have coffee but he did have some tips for that night's race meeting for Dl. They were marked in a race booklet and the envelope which he received contained that booklet and nothing else.

39. The issue here was credibility - and the Crown relied mainly on the evidence of Mr Kam It is worthy of note that when questioned on the giving of tips, Mr. Kam told the Court that he thought this, for a trainer, to be against Jockey Club Rules. In the course of his cross-examination he said that while he could tell his owners if a horse from his stable had a chance he could not tell others. Then he qualified this saying that he could tell the owner of the horse' but not his other owners. He was not allowed to give information to friends but he did so, and in particular to Madam Yu, because he wanted to get a friend of hers to stable his horse with him. He agreed that he had as he thought, broken Jockey Club Rules in the hope of getting a horse in his stable. A short while later, he altered his stand saying that provided no money changed hands he was entitled to give information to the public.

40. The understanding of Mr. Kam was shown to be wholly inaccurate by evidence given at trial by the then Secretary of the Royal Hong, Kong Jockey Club. It was the "implicit" rule of the Club that a trainer is not forbidden to pass on information nor is he forbidden to bet. He may have an interest in a bet. Others can have a bet on his behalf. There was no limitation on persons to whom a trainer might pass information subject to the provisions of Rule 53 which said that at all tines a trainer must act in the due interests of'his owner.

41. As well as the matters of controversy I have already set out and the effect of Ma Chai's evidence there was also this rather odd evidence as to the giving of tips. Further, Mr. Kam having been cross-examined on two statements which he made, one on 3rd and the other on 13th of March, agreed, that there were discrepancies as between those two statements themselves and as between the evidence he gave in Court and their contents. In this last connection he stated that he could remember better "now than what I remembered in March".

42. The main thrust of the appeal is that in his Reasons for Verdict the trial judge has not been seen properly to evaluate the evidence nor has he been seen to resolve the controversies which arose in the course of the trial that Mr. Kam's evidence was inherently unreliable' and was inconsistent with other evidence also produced for the Crown This too was not properly considered by the trial judge

43. The main body of the trial judge's Reasons for Verdict is a recital of the evidence interspersed with certain findings. He found Mr. Kam to be a "sincere witness who was somewhat uncomfortable at being required to give evidence involving others with whom he had contact in his racing business". The judge was satisfied the meeting of 10th February could not have been a friendly one and that its purpose was, to discuss why Mr. Kam's tips had been unsuccessful thus causing loss to Dl and D2.

44. The judge accepted Mr. kam's evidence as to threats of a beating and the demand for the $20,000 "sure win" quinella - the menaces and the demand.

45. He accepted that there was a payment of $60,000 and he rejected DI's evidence as to the envelope containing merely a tips-booklet,

46. He then went on to his major finding that:

"All the ingredients necessary to establish the offence of blackmail have been proved against both Defendants, and, that consequent on that blackmail a sum of $60,000.00 was paid by Mr. Kam to D1."

47. This finding has an element of ambiguity contained in it evidenced by the use of the word "consequent". The theft was charged as something separate from the blackmail even if the evidence concerning both overlapped.

48. The failure by the trial judge to make reference to, leaving aside for a moment the matter of Ma Chai the considerable controversies which arose gives us cause for concern. The Reasons for Verdict are, with respect, clearly unsatisfactory in that respect.

49. On the matter of Ma Chai the trial judge said this:

"As Mr. KAM's witness Ma Chai turned out to be of little assistance. He was unknown to Mr. KAM having been arranged at the last minute by his 'Sworn, fathers' (sic). Also, he turned out to 'be a gambling acquaintance of D2. D2 confirms in his evidence that they left the meeting for some ten minutes and went to another table for a conversation."

50. Mr. Rodway submits that, apart from the fact that Ma. Chai was not "Mr. Kam's witness"', the trial judge failed to consider the evidence as relevant to the defence raised nor the assistance which it could have been to that defence. He failed to say whether or not he believed the witness

51. Mr. Rodway further took the point, as we have indicated, that in his final address, Mr. Egan invited the trial judge to disregard the evidence of Ma Chai without having first challenged that witness while he was in the witness box, which he could only have done by being granted leave to treat him as hositle.

52. A great many of these strictures have force. The Reasons for Verdict are neither concise nor helpful. They do not show the trial judge on their face to have clearly considered the matters which we have enumerated.

53.Chan King Man⁽⁹⁾ approved that which was said by Blair-Kerr J. In R. v. R. E. Low⁽¹⁰⁾, that a District Judge is under no obligation to set out his mental processes in full. His only statutory duty, under section 80 of the District Court Ordinance is to record a short statement of the Beasons for the Verdict. Blair-Kerr J. went on, in a passage set out in Chan Kin Man⁽⁹⁾:

"There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong the position is precisely the same as when a Judge misdirects a jury on a matter of law

54. So also on the facts if a judge does choose to review the evidence at length. To the extent which he does choose to discuss the evidence to that extent does he disclose "the mind of the jury". Because of this an Appellant Court is in a stronger position to review his conclusions than it is in regard to a jury's verdict. It is not submitted that the judge was wrong in law nor, in our view, could it he for if he were correct in his findings of fact and in his assessment of the evidence there was sufficient to support the convictions.

55. A District Judge is himself the jury and he has heard the whole of the evidence. He is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of that evidence.

Blair-Kerr J. went on:

"But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend  not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering, with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable."

56. In Leong How Seng⁽¹¹⁾, Chan King, Man⁽⁹⁾ was followed and applied with the qualification that Chan King Man⁽⁹⁾ is not a licence to refrain from stating, in as short a compass as is consistent with the complexity of the case, the reasons for the verdict reached.

57. The issue which lies for our consideration is: was there a material irregularity in the course of the reasons for verdict in the failure by the trial judge to direct himself properly in his evaluation of the evidence generally and in particular the possible effect of the evidence of Ma Chai?

58. We have come to the regretful conclusion that, even bearing in mind the words of Blair-Kerr J., the answer must be in the affirmative These matters, where credibility was so important, needed to be resolved. This applies with greater force to the Ma Chai issue. There was no specific finding as to whether the trial judge believed him or not. There was no consideration seen to be given, as it should have been, as to how, if at all, his evidence affected the defence

59. We have considered whether or not the proviso could be applied We do not take the view that the evidence was so overwhelming that a properly directed tribunal would inevitably have come to the sane conclusion it would therefore not be appropriate.

60. We grant leave, treat the hearing of the applications as the hearing of the appeals and allow the appeals.

61. We desire however to he addressed by counsel, if they wish, on the question of re-trial.

(1) [1974] 3 All E.R. 115

(2) C.C.C. Vol.102 p.1

(3) [1965] 1 W.L.R. 1028

(4) [1847] 2 C.& K. 520

(5) [1944] A.C. 156

(6) 1882-86 Vol. XV Cox 319

(7) (1932) 23 Crim. App. R. 202

(8) [1974] N.I.L.R. 181

(9) [1980] H.K.L.R. 105

(10) [1961] H.K.L.R. 13

(11) [1982] H.K.L.R. 245