THE QUEEN v. HO KI CHING AND ANOTHER

1991, No. 525
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Jones J. (delivering the judgment of the Court)

1. Mr Mackenzie-Ross, counsel appeared on behalf of Ho Ki Ching (the 1st applicant) on the instructions of the Director of Legal Aid in respect of the 1st applicant’s application for leave to appeal out of time against sentence.

2. Both applicants had been refused legal aid in respect of their applications for leave to appeal against conviction, but made applications before us for legal assistance under Article 11(2)(d) of the Bill of Rights Ordinance. However, in neither case did we consider that the interests of justice required the grant of legal assistance upon the principles enunciated in R. v. Fu Yan Criminal Appeal 490/1991, unreported, 23rd June 1992. Accordingly, the applications were refused.

3. Both applicants were convicted on the 30th October 1991 by Deputy Judge Britton in the District Court of one charge of blackmail and were sentenced to 4 years imprisonment. The 1st applicant was also convicted of doing an act tending and intended to pervert the course of justice and was sentenced to a term of 12 months imprisonment consecutive to the first charge, making a total of 5 years imprisonment. The 2nd applicant was also convicted of a charge of claiming to be a member of a triad society for which he received a sentence of 12 months imprisonment and he also pleaded guilty to using an identity card relating to another person for which he received a sentence of 6 months imprisonment. The sentence on the first two charges were ordered to run concurrently to, but consecutive to the sentence on the third charge so that he received a total of 4½ years imprisonment.

4. The facts reveal that PW1 and PW2 who are husband and wife rented a room at 62, 1/F, Nga Tsin Wai Road. The principal co-tenant was the 1st applicant’s brother whilst the 1st applicant also lived in the same building. An incident took place in 1989 that led to the imprisonment of the 1st applicant and apparently the 1st applicant believed that PW1, was responsible. On the 6th October 1990, the 1st applicant threatened PW1 which resulted in PW1 and PW2 moving to another address at 77 Ta Ku Ling Road without leaving a forwarding address. However, on the 28th October 1990, PW1 said that the 1st applicant, with five or six other men including the 2nd applicant arrived at his home where they carried out acts of harassment and menaces against him. There were also numerous telephone calls from the 1st and 2nd applicants.

5. On the 29th October, 1990, the 1st and 2nd applicants with one other man, kicked PW1’s door when the 1st applicant again accused him of being responsible for his sentence of imprisonment and made a demand for $200,000. The 2nd applicant informed PW1 either on the 29th or the 30th October 1990 that he belonged to “14”. The 2nd applicant subsequently made frequent telephone calls to PW1, and demanded $200,000 otherwise he would be chopped to death. Further acts of harassment also took place. The matter was eventually reported to the police by PW1 and the police then made arrangements for an undercover police officer PW3 to pose as a friend of PW1 to act as a negotiator in settlement discussions.

6. A meeting took place on the evening of the 3rd November 1990 at a restaurant between PW1, PW3 and the 2nd applicant when negotiations were conducted for settlement in respect of the demand that had been made. Other police officers who were in the vicinity and had been watching what was happening then arrested the 2nd applicant.

7. The 1st applicant contends that the conclusions of the trial judge were inconsistent with the evidence and that he erred when he accepted the uncorroborated evidence of the first two prosecution witnesses without giving weight to contradictions and discrepancies in the evidence so that the case had not been proved beyond all reasonable doubt. The 1st applicant, in his affirmation in support of his application for legal assistance under the Bill of Rights Ordinance, referred to R. v. Bux [1989] 1 HKLR 1 where the Court of Appeal adverted to the duties of a District Judge when giving his reasons for verdict. There is no requirement for the evidence of either of the two prosecution witnesses to be corroborated whilst it is clear that the trial judge took into consideration all the matters to which the 1st applicant has today directed his criticism. The trial judge found both PW1 and PW2 to be honest and truthful witnesses and the discrepancies which are clearly set out in his reasons for verdict were all taken into consideration.

8. The 1st applicant did not give evidence at the trial whilst the 2nd applicant gave evidence that amounted to a denial of the two offences for which he pleaded not guilty and today, he maintained his denial that he had ever met PW1 or been to the premises where the offences occurred. The evidence against both applicants was overwhelming in respect of the charge of blackmail and for the charge of claiming to be a member of a triad society.

9. The 1st applicant referred to the difference in the date relating to the fourth charge. The charge states that the date of the offence was the 25th June 1991 whereas the trial judge found that the offence had been committed on the 26th June. In fact the judge was mistaken in his reasons, for the date was correct as set out in the charge.

10. The fourth charge was concerned with the 1st applicant’s attempt to persuade the first two prosecution witnesses not to give evidence at his trial, either by using the expression “forget it” or “don’t Prosecute”. This evidence, which was accepted by the judge clearly amounted to the offence of an act tending to and intended to pervert the course of justice and we are satisfied that the applicant was properly convicted of this offence. The applications for leave to appeal against conviction are therefore dismissed.

11. In respect of the matter of sentence, so far as the 1st applicant is concerned, Mr Mackenzie-Ross submitted that the sentence of 4 years on the blackmail charge was excessive for the trial judge had placed undue emphasis on the alleged motive for the offence and failed to consider the absence of violence or damage to the victims or their property. He also made reference to the fact that the 1st applicant had, or may have had an honest but mistaken belief in making the demands. He submitted that 12 months in respect of the fourth charge which was ordered to be consecutive, was also excessive for it lacked any express threats or inducements and bore no intimidatory features. He submitted that the totality of the sentences upon the evidence was too high.

12. However, we do not agree that the sentences were excessive in the circumstances of this case. They were appropriate. We therefore refuse the application of the 1st applicant for leave to appeal against sentence out of time.