R. v. YIP CHUNG KUEN

IN THE COURT OF APPEAL

1995, No.202
(Criminal)

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J U D G M E N T

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

1. The applicant pleaded not guilty to seven charges: two of s17 wounding (charges 1 and 2), one of money lending at an excessive rate (charge 3), one of claiming membership of a triad society (charge 4), one of blackmail (charge 5); one of criminal damage (charge 6); and one of trafficking in dangerous drugs (charge 7). He, at a late stage, pleaded guilty to the 6th charge, criminal damage, and was, after trial, found guilty of two lesser alternative s.19 wounding charges. He was found guilty also on the triad society charge.

2. The charges arose out of a money lending transaction between a Madam Aw and the applicant, threats said to have been uttered by the applicant in relation thereto and assaults on Madam Aw's husband and his friend said to have been engineered by the applicant.

3. The evidence came from a Madam Aw, from her husband and from the friend of the husband. Madam Aw and her husband were not satisfactory witnesses. She gave varying accounts to the police of what she said had occurred and the judge was far from impressed with her demeanour. In the outcome he was left in such doubt that he was not prepared to convict upon the basis of her evidence alone. As it was upon her evidence alone that the Crown relied in relation to charge 3, lending at excessive rate, and charge 7, trafficking in dangerous drugs, the applicant was found not guilty on both of those charges.

4. The judge was then left with the two wounding charges, the triad society charge and the blackmail charge.

5. The judge convicted on charge 4, claiming membership of the triad society, but when so doing was careful to take into account all of the evidence and, in particular, the unsatisfactory features of the evidence of Madam Aw and her husband. As regards the husband he said:

"I have carefully considered the possibility of PW2 exaggerating his evidence in respect of the defendants culpability in this offence and in respect of the facts surrounding the whole of the circumstances of the case."

He found the applicant not guilty on charge 5, the blackmail charge, because he had what we described as "a small doubt" as to whether the statement by the applicant that he was a triad member could, in the circumstances, be properly regarded as a threat or menace. He did not convict on the two original wounding charges, as we have already indicated, but was satisfied as to guilt of s.19 offences. It is not necessary, as the matter does not arise in this application, to canvass the reasons why that was done.

6. When convicting under s.19, the trial judge said:

"I have come to the conclusion that there is a small possibility that in his evidence PW2 (the husband) was exaggerating the involvement of the Defendant in the assault and that the defendant may not have been present. I have already said I approach the evidence of PW2 with some caution."

7. Challenge is made today to the convictions recorded on charges 1 and 2 and charge 4. Mr. Kwok, who appears for the applicants, submits that the evidence which was essential to those convictions came from the husband who he says the trial judge considered might have been exaggerating. It is his submission that, given his own finding, had the trial judge properly applied his mind to the evidence, he must in the end have been left in doubt overall as to the reliability of the husband. Having examined the passages in which reference to exaggeration by the husband is made, we are satisfied that the trial judge was, when refusing to act upon what he thought might be exaggerations, doing no more than indicating that he was giving the benefit of the doubt in that regard to the applicant. He was, we are satisfied, clearly not making any finding which must have forced him to a conclusion of general untruthfulness on the part of the husband. In his findings he traversed the evidence at very considerable length and was meticulous in his assessment of it. He said finally as regards to the two wounding charges:

"At the end of the day however I cannot help but draw the inference that the defendant, at the very least organised a group of individuals to assault PW2. It is the only reasonable inference I can draw."

We are satisfied that he was entitled to draw such an inference and that there is nothing to make the conviction either unsafe or unsatisfactory.