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CACC000399/1990
| IN THE COURT OF APPEAL |
Criminal Appeal
No. 399 of 1990 |
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BETWEEN
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THE QUEEN |
Respondent |
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AND
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LEE CHE KEUNG |
2nd Appellant |
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Coram: Hon. Silke, VP, Power, JA & Bewley, J. in Court
Date of hearing: 21 December 1990
Date of delivery of judgment: 21 December 1990
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JUDGMENT OF THE COURT
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Bewley J.
1. The applicant was convicted of robbery and blackmail on 6th August, 1990, by Deputy Judge To in the District Court.
2. His co-defendant sought leave to appeal against sentence out of time but this has been abandoned. This applicant applies for leave to appeal against conviction on the 2nd charge of blackmail only.
3. The robbery occurred on 29th November, 1989. When the applicant was arrested on 8th February, 1990, a blank cheque was found on him bearing the words "LUK Ming-fai was caught by me for sodomy at Pak Hoi Street public lavatory".
4. Mr. Luk was traced by the police and gave a bizarre account, which he repeated in court, of how an attempt to bugger him had been made in the lavatory by an Indian man on 28th January. He said that the applicant entered the lavatory, saw what was happening, punched the Indian and chased him out. He punched and slapped Mr. Luk and introduced himself as a 'Yau Ma Ti foki'. He asked for his personal particulars and Mr. Luk provided them because he thought that the applicant. was a CID officer. He took him to a park nearby for a talk and asked for Mr. Luk's wife's name and address. Mr. Luk wrote these particulars and two telephone numbers on a betting slip, which he gave to the applicant.
5. The applicant then asked Mr. Luk for a blank piece of paper and Mr. Luk gave him a blank cheque, on which the applicant wrote the characters that now appear. Mr. Luk said he was cooperative because he did not want his wife to find out about the incident.
6. On 5th February the applicant phoned Mr. Luk and made an appointment to meet him for tea next day.
7. Next day, in the Washington Restaurant, the applicant introduced Mr. Luk to a man he called his superior - Lam Sir. Lam Sir said that Mr. Luk's wife and children had to be medically examined as a precaution against AIDs. If they went to hospital, they would be detained for three months, but Mr. Luk could take them to a private doctor, provided he paid a $3,000 registration fee. The applicant added: "Fix it."
8. Mr. Luk promised to pay $1,000 next day and the balance on his pay day and he asked the applicant to phone him the following day. Mr. Luk suspected that they were not police officers and that they were blackmailing him, but he was willing to pay up to avoid his wife learning about the incident. He wanted to end the matter, even though he knew that they were bluffing about putting his family in hospital.
9. On 8th February Mr. Luk was contacted by the police on the applicant's arrest and at an identification parade on 14 February he identified the applicant.
10. The applicant made a cautioned statement to the police, retracted at trial, in which he confessed to both offences.
11. After a hearing on the voire dire, in which the applicant gave evidence, the deputy judge found that the cautioned statement was made voluntarily and admitted it in evidence. The applicant did not give evidence or call witnesses on the general issue.
12. The deputy judge found that Mr. Luk was an honest and credible witness. He was satisfied that there was no medical service to be performed and that the $3,000 was payment for not revealing the incident to Mr. Luk's wife.
13. The applicant, in his grounds of appeal, complains that Mr. Luk's evidence is untrue and that the deputy judge was wrongly concerned about 'the facts', meaning, I think, the incident in the toilet. That, however, went to the heart of this matter. The applicant has repeated before us that Mr. Luk's evidence was false and says that, if he had blackmailed him, he would have phoned him on the 7th June as arranged and collected the money, and also that he would have used the cheque itself as a direct means of blackmail.
14. He says that. in fact they became friends and the $1,000 was to be a loan from Mr. Luk to the applicant. He says the conversation in the restaurant was a joke between friends. There was, of course, no evidence to this effect in the court below.
15. It was a matter of credibility for the judge and in our view he was entitled to accept the evidence of Mr. Luk. Having done so, he was also entitled to find on the facts that the applicant was party to Lam Sir's unwarranted demand for $3,000.
16. He was therefore properly convicted and we refuse his application.
(W.J. Silke)
Justice of Appeal |
(N.P. Power)
Justice of Appeal |
(E. de B. Bewley)
Judge of the High Court |
Representation:
Mr. A.E. Schapel, Crown Counsel, for Respondent
2nd Respondent, LEE Che-keung present unrepresented.
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