THE QUEEN v. LAM WAI MING AND OTHERS

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JUDGMENT

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Penlington, J.:

1. The applicants were charged with two charges of blackmail in the District Court. They were convicted on one of those charges and seek leave to appeal against that conviction.

2. His Honour Judge Sharwood having heard the evidence relating to the 1st charge against the applicants found that it was not sufficient to support a conviction and they were acquitted on that charge. The 2nd charge related to an alleged demand for money with menaces from a Mr. Wong Hong Pang who was building a house in Yuen Long. His evidence was that on the 9th of June, three men having come to the site and spoken to his workers, returned shortly afterwards and told him that he had to get permission from them to build a house and asked him to pay them "tea money". He offered them a small sum but they said chat it was not enough. They then left.

3. Some time later they returned, and on this occasion were accompanied by a man whom they referred to as "big brother". Mr. Wong had a conversation with the fourth man who, without any justification demanded money from him. Again Mr. Wong offered a small sum but the fourth man said that he required $3,000 and that if it was not paid the construction could not be completed.

4. The trial judge came to the conclusion, and since Mr. Wong  was not cross examined, it seems to be an inescapable conclusion, that there had been an unjustified demand for money with menaces. He was also quite satisfied that all four persons who were then present were part of tile common enterprise to demand money. As he said, the only issue was whether the four applicants could be shown, beyond reasonable doubt, to be members of that group.

5. The Grown relied on identification evidence given by a sergeant who said that, in the presence of the applicants, Mr. Wong had identified them as the men who had come demanding money. However, when he gave evidence, Mr. Wong said that at the time he spoke to the police he could not see the four men who had demanded money from him. He said that he saw the "back of persons, who it seemed were the persons who had been to my site" and that they were together with the police. But he denied saying anything to the police in the presence of these four persons. The trial judge found that Mr. Wong was a very frightened witness and regarded him as a "somewhat pitiful figure". However, that was the evidence from Mr. Wong that the judge had to consider.

6. Mr. Wong's son, Wong Yuk Tung, testified that he also was present at the time of the demand and that the four persons who were in the dock "seemed to be the people who had come to the site". Again, however, there was certainly not such identification evidence from him as, standing alone, would be sufficient to justify a conviction.

7. Each of the applicants made a cautioned statement. D1 stated that in relation to the events of that afternoon, after having tea with D2 and D4, the three of them went to D3's house and that D3 "met several site proprietors and talked to them". D1 could not hear very clearly what was said, but D3 then said he had some matters to attend to do and left with D2. D1 and D4 waited for a while and, having then gone to look for them, found that they had been arrested.

8. D2 said in his statement that on that afternoon, after having had tea with the other three they went and had a conversation with a site foreman, a Mr. Chan. Chan told them that somebody had caused damage to a curb while constructing a house and that they were to make enquiries about it. As a consequence the four applicants went to the site where D3 spoke to the man who was alleged to have caused the damage. According to D2, however, he could not hear what was said.

9. In his statement D3 said that he and the other three applicants had gone to a site where a man was building a house and had talked to a Mr. Wong. They told Mr. Wong that he had caused damage to the village road ad that ditch repairs had to be made before the work could be completed. They then made a request for compensation for the damage that had been done. He denied having committed blackmail.

10. In his statement to the police D4 said that he was together with the other three and that they had one to where other persons were building a house. On discovering that these others had damaged a stone embankment of the village road, D3 asked them to pay compensation. D4 went on to say "I had nothing to do with it".

11. The judge decided as a matter of fact, and there was ample evidence for him to do so, that the four applicants were together when the demands were made, that the demands were both unjustified and accompanied with menaces and that all four were members of a common enterprise to blackmail. We are satisfied that each of the applicants, considered separately, quite clearly identified himself as one of the four men.

12. The trial judge said that he accepted the evidence of identification by the police sergeant. There is certainly some doubt as to whether he was entitled to do so. R. v. Osborne & Virtue ⁽¹⁾ is authority that if a witness is unable to make an identification in court and cannot remember having done so on a previous occasion, evidence can be called to show that he did make such an identification. That decision has been criticised by various academic writers as being contrary to R. v. Christie, ⁽²⁾ and it does not find favour with the editors of Archbold. As Mr. Cross for the Crown very fairly points out, the facts of the present case go considerably further than those in Osborne end Virtue ⁽¹⁾, because here we have a witness who denied making any identification at all. We have the gravest doubt as to whether under such circumstances evidence of a previous identification would be admissible. However, we do not consider that it is necessary to deal with this point, interesting though it might be, as we are satisfied that there was ample evidence in the statement made by each applicant that he was a member of the group whom other witnesses had testified had made the demand on Mr. Wong, and that each was part of a common enterprise. The trial judge also said that even without the identification evidence given by the sergeant, there was sufficient for him to be satisfied beyond reasonable doubt of the guilt of all the accused. The applications for leave to appeal against conviction are therefore refused.

13. Mr. Polson has also applied for leave to appeal against sentence out of time. The applicants have at all times been legally represented and no satisfactory reason has been given for their failure to file their appeals within time. We do not see any merit in this application which is also refused.

(1)    (1973) 1 Q. B. 678

(2)    (1914) 10 C.A.R. 141