THE QUEEN v. FUNG YIN NAM

IN THE COURT OF APPEAL

1988, No. 3

(Criminal)

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J U D G M E N T

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Silke, V.P.:

1. Two persons appeared for trial in the District Court before His Honour Judge Longley on a Charge Sheet containing 11 charges.

2. They were Fung Yin Nam the - Applicant" - and Madam Lau Pui Ping "D2". The Applicant was convicted upon four of the charges: Charge 4, Lending money at an excessive rate of interest; Charge 7, criminal intimidation; Charge 10, bookmaking contrary to section 7(1)(a) of the Gambling Ordinance, and Charge 11 also a charge of bookmaking. The 4th, 10th and 11th charges were Joint with D2.

3. The Applicant sought leave to appeal against his convictions and, in the alternative, the sentences, passed upon him. At the conclusion of the hearing, we dismissed both applications and stated we would give our reasons later. This we now do.

4. The Applicant was at the relevant time a sergeant in the Royal long Kong Police Force. The main prosecution evidence came from Wu Chi Hung (PW1), a taxi-driver, to whom the loans were said to have been made, the intimidation offered and who spoke to the bookmaking charges.

5. Wu's evidence concerned his acquaintanceship with D2 which spanned a number of years and a meeting, between himself and herself which took place in the building in which they both lived in September 1986. During that meeting D2 suggested to Wu that could earn extra money by lending out cash to his fellow taxi-drivers at exorbitant rates of interest. The money was to come from D2 who would charge Wu at the rate of $2,000 per month interest on a loan of $10,000. Then Wu, on the loans made to his fellow drivers, would charge at a rate of $3,000 per month for each $10,000 loan.

6. Wu's greed was aroused. He sounded out some of his fellow drivers and came to the conclusion that there was a market for his services. He paged D2 and a meeting was arranged for the 22nd September 1986 at the King's Palace Restaurant in Ngau Tau Kok. Wu attended that meeting, with Chiu Yu To, a fellow taxi-driver and who was PW5 at trial. D2 was accompanied by the Applicant. A request for an initial loan of $20,000 was made by Wu. He was told by D2 that she was not the boss but that Dl, whose nickname was "Nam Kor", was D1 told Wu that he would lend the money to him but with D2 acting, as a guarantor. There was evidence that D2 was the Applicant's mistress. On the loan of $20,000 interest of $1,340, rounded up, was to be paid every ten days. The first installment of that interest was due immediately. Dl gave Wu $16,660 in cash and a cheque in the sum of $2,000 drawn on his own brink account and which subsequently passed through Wu's account. Wu was required to give the Applicant a cheque for $20,000 with the payee's name blank. This cheque was never found. We was also required to give the Applicant four cheques each in the sum of $1,340 and each with the payee's name left blank. They were dated consecutively: the 2nd of October, the 12th of October, the 2nd of November and the 12th of November.

7. It was arranged that there would be a further meeting in October. That took place on the 2nd in the Golden Taiwan Restaurant in Granville Road. The same parties were present. The interest due upon that day was paid by Wu. There was a discussion about bookmaking.

8. The bookmaking suggestion was that if Wu and his friend Chiu introduced punters they could received $50 on all bets exceeding $1,000 in value. They were told by both the Applicant and D2 that they would have to be responsible for the debts of persons who defaulted on bets placed through them. It was at this meeting that Wit first became aware that the Applicant was a police officer.

9. Wu, Chiu, Mr Tse Sik and others did place bets by telephoning a number which was answered by D2.

10. The next interest installment was due on 12th October. Wu had insufficent funds to pay. He met the Applicant and D2 at the King's Palace Restaurant. The Applicant offered Wu a further loan of $10,000 but from this was to he deducted the four interest installments as covered by the four cheques which were issued in the sums of $1,340. This was done and Wu received $4,640 in cash. In return he was required to give a cheque for $30,000 together with a cheque for $2,000 as interest on $30,000. They agreed that a loan of $30,000 would be deemed to have been made to Wu as of 12th October.

11. Another meeting, took place on either 13th or 14th of October at the Genghis Khan Restaurant. Both D1 and P2 were present and they asked Wu to repay the principal and the interest upon a daily basis as they were in financial difficulty. The suggested rate was $400 Per day. Wu agreed.

12. Subsequently Wu realised he could not meet these payments. As a result, on 20th October, he wrote a letter addressed to both D1 and D2 and delivered it to D2 by hand. He suggested a scheme of repayment over a 10-month period. D2 did not think this was feasible but stated she would give the letter to D1. When the Applicant was arrested on 10th November, this letter was found in the glove compartment of his car.

13. On 27th October, Wu told D2 he could not make any interest payment. The parties met on 23rd October at the Golden Taiwan Restaurant with Wu asking for time. A fresh schedule of repayment was agreed to. Wu considering that as the Applicant was a police officer, he had little choice but to agree despite his lack of understanding of the figures involved.

14. In order to make payment, Wu's then girlfriend, Miss Yeung Hoi Tong, "PW2" at trial, took up employment as a dancing hostess. This permitted her to get a loan from her employers. The fact of this loan being made was spoken to by one of those employers. Part of it was used to pay for the fuel for Wu's taxi and the rest was handed over, on 29th October at about four o'clock in the morning, to the Applicant in the presence of D2 at the Golden Taiwan Restaurant.

15. Wu was still in financial difficulties. At a meeting on 30th October in the Hsin Kwang Restaurant between himself, the Applicant and D2 he told the Applicant that, while he could pay the interest due on 2nd November, he could not manage to keep to the repayment schedule agreed on 23rd October. The Applicant then told Wu not to fool around and that it would be very easy for the Applicant, should Wu try to run away, to take out an unsolved case and file Papers claiming that Wu was the offender. He told Wu that Wu would then be placed on a wanted list and, once arrested, the Applicant had no worries that Wu would be forced to admit the offence. As an alternative, if this plan did not succeed, Wu's girlfriend would be sold into prostitution in order to recover the moneys due.

16. At that meeting it was further suggested that Wu should by way of hire-purchase acquire a television set and a video recorder. These would then be handed over to the Applicant to help reduce the debt.

17. Wu said that he was now so worried that he had a discussion with his girlfriend about suicide. They resiled from so drastic step and instead made a report to the Independent Commission Against Corruption - this on 7th November.

18. Upon the instructions of officers of the Commission a meeting between Wu, his girlfriend, the Applicant and D2 was arranged. This was taped and the tape was produced in evidence. At that meeting, Wu handed $2,400 in marked notes to the Applicant and received in return three of the four cheques which had been made out in the sum of $1,340.

19. On 9th November a telephone conversation took place between Wu and D2. A further meeting between the Applicant, D2 and Wu took place at the Golden Taiwan Restaurant on 10th November. Both were recorded and the tapes produced at trial. A further $2,800 in marked notes was handed to D1 by D2. Both the Applicant and D2 were then arrested.

20. On arrest, the marked $2,800 which had just be handed to him, was found on the Applicant. Also found were two of the notes which came from the marked $2,400 paid to him on 7th November. When the Applicant's home was searched, there were found three of those 7th November notes.

21. In the Applicant's car, as well as the letter to which we have referred, was found the cheque for $30,000 drawn by Wu and handed over on 12th October and, on the rear seat, a diary which contained the particulars of the loan to Wu.

22. Without setting them out in any detail, the tape recordings of the meeting of 7th and 10th November clearly implicated the Applicant.

23. In relation to the bookmaking charges. There was also found on the Applicant at the time of his arrest a record of bets made relating to races at Shatin on 9th November. In the boot of his car a betting record was discovered Relating to bets on the races at Happy Valley on 5th November 1986.

24. Mr Sedgwick, with him Mr. K.K. Yuen, who appears for the Applicant in this Court, has emphasised to us that the main evidence here came from the witness Wu. He submitted that the trial judge failed properly to consider in his assessment of that witness his nature.

25. Wu most certainly had flaws. He was gullible, greedy and prepared to engage in illegal transactions: He was a witness with an immunity. While under the protection of the Independent Commission, he had received moneys intended for use in the course of the investigations which he then stole and he as a result was convicted of two counts of theft.

26. Wu's ex-girlfriend gave evidence as to the possibility of his lying, to save himself.

27. The trial judge in his careful assessment of Wu took all these factors into account. He was fully cognizant of the fact that he had to be satisfied not only of Wu's honesty as a witness but also of his reliability and his accuracy before he could place any reliance upon the evidence he gave. Of Wu he said:

"In so far as Wu's honesty is concerned, having observed him giving evidence over a number od days, I am satisfied that he was honestly endeavouring to tell the Court what had transpired in his dealings with both defendants. Nothing in the subsequent evidence adduced in the trial, including the evidence of D1 (the Applicant), caused me to doubt my impression when he gave evidence that he was seeking, to tell the truth about these matters."

28. Mr Sedgwick suggests that the evidence relating, to first of all the $20,000 cheque on 22nd September and then the later cheque for $30,000, and of the manner in which these were given, suggests unreliability such as to make. Wu a witness incapable of belief. In addition, Mr Sedgwick suggests that by saying that the $2,000 cheque given by the Applicant on 22nd September was something, which confirms Wu's evidence, the trial Judge was in error for, first of all, one would not expect an experienced police officer to lay himself quite so open by the giving of his own cheque if there were such an illegal transactions in progress. Secondly, the existence of this cheque was not evidence which confirmed that of Wu at all but was, if anything merely consistent with it and it was equally consistent with the evidence given by the Applicant at trial that he had simply given a cheque to his mistress D2 who wanted some money at the time when he had no cash upon him. This latter explanation was disbelieved by the trial judge.

29. In the course of cross-examination by counsel then appearing for D2, who herself did not give evidence at trial, various suggestions were made as to the cheques for $30,000 and the interest payments of $1, 340 being consistent with in reality a loan of $30,000 with interest repayable over ten months at that rate and well within the parameters of interest permitted by the Money Lenders Ordinance. But these were flatly denied by Wu and were unsupported by any evidence. There the matter rested.

30. It was further suggested that ,the trial judge should have placed no weigh upon the contents of the diary found in the. Applicant's car setting put the details of the loans to Wu, there being no evidence to show who made the particular entries in that diary. Further in the light of the evidence of the Applicant to the effect that D2 used his car on frequent occasions and had a key to it, no adverse inference should have been drawn.

31. In relation to the criminal intimidation charge Mr Sedgwick again emphasises and relies upon the frailties of the witness Wu and repeats his submission that the trial judge was wrong to place reliance upon him. It is in this connection interesting to note a question put, and an answer given, in cross-examination of Wu by the then counsel for the Applicant:

"Q. What he said was that if he wanted to he could frame you not that he would frame you.

A. It was not meant in the way you put it. What he meant was that he was throwing his weight around making use of his status. If I did not do so he could frame me up."

32. The same issue in relation to Wu's credibility, was carried over to the bookmaking charges. In addition,it is Mr Sedgwick's submission that there was insufficient evidence to establish that the Applicant was guilty of bookmaking contrary to section 7(1)(a) of the Gambling Ordinance as opposed to assisting another person in bookmaking, an offence contrary to section 7(1)(c) of that Ordinance - a point with which we shall deal in a moment.

33. The trial judge, having both seen and heard Wu and having very carefully assessed his honesty and credibility, believed him. He neither neglected to consider that which he should nor took into consideration that which he should not. He was aware of the gulliblity of Wu and that he was giving evidence some considerable time after the events had taken place. He was aware of the apparent differences as between Wu's evidence in the box and the statements he made to the Independent Commission. He was of the view that Wu at times did not fully understand either the terms or the implications of the repayment arrangements being forced upon him by the Applicant. Nothing that Mr Sedgwick has submitted to us causes us to think that the trial judge's approach to the evidence or assessment of the witness was open to criticism in any way. There are no grounds to warrant our interference.

34. That being said, Counts 4 and 7 were fully made out as were Counts 10 and 11 subject to the technical point taken by Mr Sedgwick.

35. Mr Sedgwick has drawn our attention to three decisions in Magisterial Appeals. The first: R. v Poon Sze Tak⁽¹⁾, a decision of Penlington J Second: R v Fung Sik Chung⁽²⁾, a decision of O'Connor J and lastly: R. v Lam Kin Yim⁽3), a decision of Hooper J.. All three decisions were to the effect that because of the peculiarities in the wording of s.7 of the Gambling, Ordinance which in its sub-section (1)(a) deal with the offence of bookmaking and in its sub-section (1)(c) the offence of assisting, in bookmaking, which last needs the sanction of the Attorney General - a person whom the evidence shows to be an aider and abettor of bookmaking but who was charged with the offence under s.7(1)(a) cannot he convicted of that offence. It is not possible for a trial court to amend a charge under s.7(1)(a) to one under s.7(1)(c) because of the necessity for the Attorney General's consent.

36. Those cases were mainly concerned with what might be termed the run of the mill raid on a premises where a number of persons are found together with betting slips. The Gambling Ordinance in its sub-section 2 defines "bookmaking" as:

"(meaning) the soliciting, receiving or negotiating of a bet by way of trade or business, whether personally or by letter, telephone, telegram or by any other means;"

37. Without considering the correctness of the decisions to which we have been referred such consideration being unnecessary, the evidence of Wu combined with that of the finding of the betting slips relating to bets received on 5th and 9th November 1986 is in our view, as it was in the view of the trial judge, more than sufficient to show that the Applicant solicited and received bets. It may be that others were involved in the enterprise. But it was the Applicant who solicited the business from Wu and Wu's friends. It was D2 who actually took the bets when they were placed. She was also a party to the solicitation Bets were shown to have been received, not necessarily from Wu or his friends, in relation to the two race meetings on 5th and 9th November. There was ample evidence upon which the trial judge could come to the conclusions he did.

Sentence

38. The Applicant received a sentence of 9 months on Charge 4, 1 year consecutive on Charge 7 and concurrent sentences of 9 months each upon the 10th and 11th Charges those sentences consecutive to that imposed on Count 4 and Count 7 giving a total of 2½ years.

39. It is Mr. Sedgwick's contention that as the money lending and the criminal intimidation charges were so intermingled that concurrent sentences should have been passed - he does not seek to contest the individual sentence of 1 year on Charge 7. Further that the sentences on the bookmaking charges are out of line with the normal sentences passed for offences of like nature.

40. But all these offences were committed by a police officer - a sergeant - with 27 years service. He grossly abused his position by using, it to effect his illegality. Judge Longley clearly viewed the matter in this light. A particular aggravating factor were the threats, made all the more potent by the office he held.

41. We take the view that were we the sentencing court the terms of imprisonment on Charges 4 and 7 might well have been higher.

42. The bookmaking sentences on the other hand, viewed in isolation, appear on the high side. But the trial judge was in our view approaching the matter on a totality basis. We think he was right to impose the overall sentence that he did, bearing in mind all the factors in mitigation draw to his, and to our, attention. The quantum of that sentence was in no way excessive.

(1) Cr. App. No. 1012 of 1983

(2) [1985] H.K.L.R. 387

(3) Cr. App. No. 175 of 1985