THE QUEEN v. WONG LAI SHEUNG

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 791 OF 1984

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BETWEEN

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JUDGMENT

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1. The Appellant appeals against her conviction on all 8 counts on the grounds first that "the conviction is erroneous in law" and second that "there is no or no sufficient evidence to support the conviction."

2. Mr. K.Y. Thong for the Appellant in his able and very full submission detailed the specific grounds on each count. It is convenient to begin first of all with his submission that P.W.1 Yip Wai-chun is a child and that it was therefore mandatory in law for the magistrate to warn himself of the danger of convicting upon the uncorroborated evidence, albeit sworn, of a child; that this the magistrate failed to do and that therefore since the prosecution case depended almost wholly upon the evidence of the first prosecution witness, the convictions must be set aside.

3. He cited in support page 204 of the fifth Edition Sir Rupert Cross' treatise on Evidence, in particular the following passage:

"It appears that the requirement of warning the jury of the danger of acting on the uncorroborated evidence of a young child is preremtory."

The learned author seems himself to have been somewhat doubtful of the strength of the proposition, in using the term "appears". That may be because the case cited as authority, R v. Cheal [1942] 1 All ER 203, concerned a sexual offence i.e. indecent assault of a boy aged 10. Besides, the boy's evidence was unsatisfactory in material respects including the crucial issue of the identity of the accused person. In this case P.W.1 was 16 years of age at the time she gave sworn evidence. I do not regard her as a young child and on this ground reject Mr. Thong's submission. There was in any event corroboration of the evidence of P.W.1 in material respects, a matter to which I shall return. And before leaving the point I should note that the magistrate found the witness "a mature and intelligent witness beyond her years".

4. To proceed to Mr. Thong's other point i.e. that there was no evidence or no sufficient evidence to support the convictions, there is no question as to the identity of the accused and in essence only two questions have to be considered. First was the defendant only joking as claimed by Mr. Thong, when she mentioned the Wo Shing Wo Triad Society? And second was she in fact seeking genuine loans?

5. The first prosecution witness' evidence on these matters is quite clear. At page 2 of his statement of findings the magistrate records his assessment of her evidence and fully accepts it. I can see no reason why he should not have done so. On the contrary he seems to me to be right both in his assessment of the first prosecution witness' evidence and in the 8 findings of fact recorded at pages 3 and 4 of his findings.

6. As regards the second prosecution witness, who was less than forthcoming and was warned by the magistrate of the offence of perjury again I think the magistrate right in concluding that she was afraid to incriminate the Appellant because of her continuing fear of the Appellant. Despite that fear she did make telling points that weigh heavily against the Appellant, her evidence not having been challenged by the defence which did not cross-examine her. The second prosecution witness was 15 years of age at the time she gave evidence. I regard her also as not being a "young child" and therefore her evidence does not require corroboration and can corroborate the evidence of the first prosecution witness.

7. And what of the Appellant's evidence? The magistrate's assessment of it is at page 3 of his findings. In substance he rejected her evidence. Again he seems right in having done so. Her story, that she heard some boys claiming to be members of Wo Shing Wo and that the fee to join was $108 and merely mentioned this to the first and second prosecution witnesses, strains credulity, as does her version of the "loans".

8. Proceeding then to the 1st count which relates to the blackmail in respect of P.W.2, Mr. Thong submits that the evidence of P.W.2 indicated no more than that the Appellant asked for a loan of $108 and that this is corroborated by the Appellant's statement to the Police; that the magistrate therefore too readily preferred the uncorroborated evidence of P.W.1 to that of P.W.2. I do not accept that a court properly directed could not reasonably have come to the magistrate's conclusion. Indeed as I have indicated, I think the magistrate did come to the right conclusion. It is clear from his findings why he accepted the evidence of P.W.1 in preference to that of the Appellant and P.W.2. But in any case my reading of the evidence of P.W.2 is that she confirms the evidence of P.W.1 in the following specific respects, that the Appellant demanded $108 from her, that the Appellant did mention "Wo Shing Wo Triad", that the $108 was asked for when the Appellant was talking about Wo Shing Wo, that the Appellant said P.W.2 was to pay $10 per week, that she gave the Appellant money, that P.W.1 also gave the Appellant money, and that she P.W.2 was afraid of the Appellant because she was saying "things" about Wo Shing Wo.  All this is overwhelming confirmation of the evidence of P.W.1 and would constitute corroboration were that necessary. With due respect to Mr. Thong, the general effect is not altered simply because the Defendant used the expression "loan". Nor do I accept Mr. Thong's submission that the evidence of P.W.2 and the Appellant are mutually corroborative. The overwhelming thrust of the evidence of P.W.2 supports the evidence of P.W.1 i.e. the prosecution case. I also do not accept that the evidence of D.W.1, that she heard the Appellant say she would repay money to Yiu (meaning P.W.1) and saw her hand over $10 to Yiu, should necessarily have affected the magistrate's decisions. Having seen and heard D.W.1, the magistrate expressly found that she was not impressive and that she seemed confused and uncertain. It is implicit in his findings that he rejected her evidence. It seems to me that he was entitled to do so, and that having done so, to make the observation that she "added nothing credible to the matter under enquiry", which observation attracted Mr. Thong's criticism.

9. Finally looking at the evidence as a whole I do not accept that the magistrate failed to attach sufficient weight to the Appellant's statement to the Police as being exculpatory and consistent with her testimony.

10. It follows that the appeal against conviction on the 1st count must fail.

11. Parallel considerations apply to the 2nd count which relates to blackmail in respect of P.W.1. The appeal against that charge too must fail.

12. As regards the 3rd count i.e. claiming to be a member of a triad society to wit Wo Shing Wo, the defence is that the Defendant was only joking. It is implicit in the magistrate's findings that he did not accept that possibility. In truth it is difficult to see how he could. It is implicit in his findings that there was mens rea on the part of the Defendant. It is therefore not necessary for me to enter into the nice question of mens rea that Mr. Thong posed in the context of Ng Chi-wah [1978] HKLR 101, Cheng Chung-wai [1980] HKLR 593 and Shing Hing-sang [1983] HKLR 1. The appeal against count 3 also must therefore fail.

13. Counts 4 to 8 relate to theft. On behalf of the Appellant it is urged that the convictions cannot stand as there is no evidence that the Appellant had dishonestly appropriated the sums loaned to her. Miss Harris for the Crown concedes that the convictions on these counts cannot be supported and suggests that the charges should have been for blackmail under section 23 of the Theft Ordinance. While the latter suggestion might be right, it seems to me that the minor "loans" constituting the subject matter of these counts were probably part of the larger amounts of $108 which are the subject of the first 2 counts. However that may be, the convictions under counts 4 to 8 cannot stand and are set aside.

14. Accordingly the appeal in respect of counts 1, 2 & 3 is dismissed and in respect of the remaining counts is allowed, the relevant convictions being set aside.

15. Mr. Thong submitted that although no appeal had been made against sentence, if the appeal was allowed against some of the counts, the overall sentence should be reduced and that the court has the power to do so. However the magistrate imposed a single order in respect of all the 8 counts. The basic findings of the magistrate in respect of the conduct of the Appellant are in no way affected by the convictions on the latter 5 counts being set aside. There is therefore in my view no justification for interfering with the magistrate's order, and I do not propose to vary it.