HKSAR v. TANG YU HUNG

HCMA362 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.362 OF 1998

(ON APPEAL FROM NKCC 5046 OF 1997)

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J U D G M E N T

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1. This is an appeal against conviction. Appellant was convicted of blackmail and claiming to be a member of triad society, and was given 9 months and 6 months respectively to run concurrently.

2. It is the duty of a Magistrate by his Statement of Findings to give reasons or at least some indication of how difficulties in evidence had been resolved. This is to enable an appellate court to decide whether he was correct or incorrect. In this case, there were difficulties with the evidence of the first prosecution witness. It was not simply a matter of whether the Learned Magistrate accepted his evidence because of his demeanour. Most noticeably was PW1's evidence that after the threat in August, he went to make a complaint about it to the police. It was not a complaint about tenancy matters but a complaint of threat to the police which was ignored. If indeed, this was the situation then it would have been a dereliction of duty on the part of the police. Evidence ought to have been adduced to prove that. Yet no such evidence was called and the Learned Magistrate just accepted that as if it was something which happened commonly.

3. Another is the fact that according to PW1, his son and his wife had to move to China because of the threat. The threat was not made according to PW1 until 12th August. Yet according to himself, he said that his son moved to China in July. This must be evidence which throws into doubt whether there was in fact such a threat or at the very least raise doubt as to whether PW1 was truthful about when and why his son moved to China.

4. There are further matters, for example, the discrepancies which are material between PW1's witness statement and his testimony in Court. As Mr. To fairly conceded, none of these matters were dealt with by the Learned Magistrate in his findings. Mr. To also rightly conceded that the convictions must stand or fall together.

5. In the circumstances, I am left with a lurking doubt as to whether the Appellant is guilty on the evidence of any of these offences. Unless the material difficulties which go directly to the threat are satisfactorily resolved, the convictions must be unsafe and unsatisfactory.

6. In the circumstances, I reverse the Learned Magistrate's verdicts on the two offences, allow the Appellant's appeal against conviction, quash the convictions and set aside the term of imprisonment.