THE QUEEN v. YIM LOY HO AND ANOTHER

IN THE COURT OF APPEAL

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J U D G M E N T

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Hunter, J.A.:

1. On 7th March 1988 H.H. Judge Longley sitting in the District Court convicted both applicants of one charge of common assault. The charge was that on 22nd September 1986 at the Wah Fu Estate Bus Terminus they assaulted Lau Chi Shing.

2. The evidence in the court below gave rise to a simple and narrow question of fact for the trial judge to resolve. He had evidence from PW1, Lau Chi Shing, the victim of the assault, and from PW9, another bus driver who had witnessed the assault. No evidence was given by either of the applicants. The evidence given by PW1 and PW9 was consistent on the basic events. It went like this.

3. PW4 came into the rest room at the bus terminal when PW1 was reading a book. They were both members of a trade association, called the South China Bus Drivers' Association, the subscription to which was HK$200 a month. It is common ground that PW1 was late in the payment of his subscription for that month. The nature of that trade association was examined with some care in the course of trial, and as a result of the evidence that he heard, the trial judge was convinced that it had considerable triad connections. The evidence which PW1 gave was that D4 came in demanding in effect, his outstanding monthly subscription, adding that "Big Brother" had told him to collect it and that if he did not pay he would get beaten up. It is about that point that D4, the first applicant, launched into the assault complained of, with his fists. The victim defended himself so he said. That roused the first applicant's anger further because he said he was offering violence. The assault then continued and the first applicant picked up a stool. By this time, a number of the other bus drivers had intervened and were pulling them apart. It is about this time that the second applicant, D5 in the court below, entered and intervened by striking the victim a Karate-type chop with the side of his hand on the front of his throat.

4. The heart of that story was told both by PW1 anti PW9. There were some disagreements between them on the details and on the sequence of the events. These were all matters to which the judge gave most careful consideration and he gave full reasons for saying why he accepted the evidence of both these witnesses. The issue was a question of fact for him to resolve. He took everything which was relevant fully into account; believed these two witnesses; and believed that this assault happened.

5. Having listened to everything that has been said on the applicants' behalf in this court, there is nothing which give us the slightest doubt as to the correctness or propriety of these convictions.

6. The applications for leave to appeal against conviction fail, and must be dismissed.

7. Both applicants were sentenced by the judge to a term of six months' imprisonment, and both seek leave to appeal against that sentence.

8. The judge gave equally careful reasons for sentence. He referred first of all to the setting up of this trade association. He went on :-

"Although ostensibly a welfare association for bus drivers I am satisfied from the evidence in this trial that from an early stage if not its inception, it was controlled by persons with triad connections".

He then described the circumstances of the assault substantially in the same terms as I have. He went on in these terms :

"The background to this assault makes a custodial sentence inevitable. I am satisfied that both defendants, acting as instruments of those controlling the Association, sought to demonstrate that failure to comply with their demands would not be tolerated. In circumstances such as this where persons seek to enforce debts, albeit legitimate debts, by violence and intimidation they cannot expect the courts to take a lenient view of their actions".

This court wholly endorses those sentiments, and will not attempt in any way to improve upon them. The sentence imposed by the trial judge was in our view wholly justified, and these applications are likewise dismissed.