R. v. FONG KIT & OTHERS

IN THE COURT OF APPEAL

1995, No.72

(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. There are three applicants before us today. The 1st applicant faced a charge of arson and a charge of conspiracy to blackmail. The 2nd and 3rd applicants faced only the latter charge. Each was convicted after trial in the District Court before Deputy Judge Leung of the offences with which he was charged and each now appeals against those convictions.

2. The particulars of the arson charge were that Fong Kit, the 1st applicant, at the New Yaumatei Public Cargo Working Area ("the Working Area"), with other persons unknown, without law excuse damaged by fire property belonging to the Kin Luen Company intending to damage the property. The second charge, the conspiracy charge, named all three applicants and alleged that on divers dates in September 1993, they had conspired with persons unknown with a view to gain for themselves to make unwarranted demands with menaces to persons in the Working Area.

3. It was the Crown case, as regards the arson charge, that on 19th October 1993 two cargo vessels carrying goods, the transportation of which was arranged by the Kin Luen Company, arrived at the Working Area. The goods were unloaded and left in an open space. Their value was $1.9 m.

4. At around 4 a.m. on 20th October a witness, PW5, sleeping outside the Working Area heard an explosion and reported the fire. There was evidence from other witnesses, PW1 and PW5, who saw, at one stage or another, what occurred at the scene. It was the Crown case - and we will come to the particulars of that case later - that the 1st applicant had driven two other persons, who were the actual arsonists, to the scene, that they set the fire and that they then left in the car driven by the 1st applicant.

5. The Crown case rested upon admissions made by the 1st applicant to the above effect.

6. In the conspiracy charge the principal evidence came from PW2, the person in-charge of the Kin Luen Company at the Working Area. He said that he had been approached by three different groups of people during September 1993. The most important of these approaches was the second one. this approach was described by the judge in his Reasons for Verdict in the following way:

"The second group of two Chinese males came between 15th and 20th September 1993. They asked to see his boss and gave him a name card, which is Exhibit P2. This appeared to be name card of 'Ah Kwan' with the company name of 'Luen Sin Cleaning Service Company'. A hand-written pager number appeared at the bottom. One of them said 'We will do the cleaning work in the Cargo Working Area for you. Each month a fee of $500 had to be paid.' PW2 asked if he would service the working area. He said, 'You don't need me to tell you in clear term, do you? We won't definitely. Are you nut? He asked PW2 to ask his boss to call him."

7. The 1st applicant in one of his statements admitted having been at the Working Area at the beginning and again in the middle of September and having gone there to ask for cleaning fees and to distribute the Luen Sin Cleaning Company cards. The 2nd applicant admitted that he had had the cards printed, that he had, using the services of a drug addict who was rewarded with $20 for his trouble, applied for the pager number which appeared on the card. He also admitted going twice to the working area to distribute the cards.

8. The 3rd applicant in his statement admitted going with others to the working area to distribute the cards. He said that it was his job to take down the names of the barges. He admitted that he wrote the phone number on the cards and there was evidence from a handwriting expert that the writing on the cards may have been that of the 3rd applicant.

9. That was the Crown case. It relied, as I have said, principally upon the admissions made in the cautioned statements.

10. The 1st applicant gave no evidence but called an alibi witness. The 2nd applicant gave no evidence and called no witnesses. The 3rd applicant gave evidence but called no witnesses.

11. The trial judge when giving Reasons for Verdict outlined the evidence of PW1 who saw the fire from the 17th floor of a nearby building. This witness said he saw a light coloured car leaving the cargo area some time after the fire had started. The 5th prosecution witness, a watchman, said he saw two boys on bikes, one of whom rode into the area and then rode out again and that this was about 2 minutes before the fire had started.

12. In his statement the 1st defendant had admitted only that he had parked the car at the entrance to the Working Area. He said that the other two went into the area and that the fire started and they came out and left. This evidence was clearly not in accord with the observations of the 1st and the 5th prosecution witnesses. Mr. Tse, who appears for the 1st applicant today, submits that the clash between the evidence of those witnesses and what was said in the statement was a serious and material one which should have given the judge pause as to whether he could safely accept the truth of the admission in the statement. The judge was aware of this matter and dealt with it saying:

"It is apparent that the confession of D1 did not fit in exactly in detail with the evidence of the three eye-witnesses. The time might have been around 4.00 a.m. The watchman PW5 probably saw Ah Chi and another arsonist. PW1 might have seen another watchman (PW4) trying to put out the fire with the other crew members looking on. Any arsonists, having set the fire and caused explosion, could not be expected to remain to look at the fire. The gas cylinders found by police were too small to be seen from a great distance. Despite some variations among eye-witnesses and D1's confession, I do not find any inherent improbability of impossibility that make the confession unreliable."

13. The trial judge, properly and sensibly in our view, took into account that observations made of an incident such as this, taking place at night and in unreliable light, are likely, even when coming from honest witnesses, to be at variance one with the other. He had to balance that against the clear admissions made by the 1st applicant. He was, in the outcome, not surprisingly, prepared to act upon the basis of those admissions. Further he did not ignore the alibi evidence given by the girlfriend of the 1st applicant. When this was placed against the rebuttal evidence of the supervisor from the 1st applicant's work place, we find little surprise that the trial judge was not prepared to accept it. He gave consideration also to the evidence of a garage attendant whose evidence, it was suggested, indicated that the statement should not be relied upon. The trial judge rejected that evidence, as he was entitled to, and did not allow it to shake his conviction as to the truthfulness of the confessional statement. We are satisfied that nothing has been argued which in any way casts doubt upon the propriety of the conclusions of the judge as to the guilt of the 1st applicant on the arson charge and the application for leave to appeal against that conviction must therefore be refused.

14. As to the conspiracy charge, PW2, who was the officer in charge of the site office for Kin Lun, gave evidence which the judge outlined in the following way:

"The second group of two Chinese males came between 15th and 20th September 1993. They asked to see his boss and gave him a name card, which is Exhibit P2. This appeared to be name card of 'Ah Kwan' with the company name of 'Luen Sin Cleaning Service Company'. A hand-written pager number appeared at the bottom. One of them said 'We will do the cleaning work in the Cargo Working Area for you. Each month a fee of $500 had to be paid.' PW2 asked if he would service the working area. He said, 'You don't need me to tell you in clear term, do you? We don't definitely. Are you nut?' He asked PW2 to ask his boss to call him."

15. The 3rd applicant admitted that the distribution of the cards was made on 23rd September 1993. This of course was at variance with the evidence of PW2 who said it was between 15th to 20th September. The trial judge was aware of this discrepancy and was satisfied that PW2 was in error as to the date and accepted the admission of the 3rd applicant that the date was the 23rd.

16. The 3rd applicant gave evidence at trial. He admitted that on 23rd September on Ah Joe's instructions he wrote the pager number on 10 odd name cards including one given to PW2 and the one found in the 2nd applicant's possession. He said he had gone to the working area to distribute these name cards with the 1st and 2nd applicants together with two other persons twice, first on 23rd and next on 25th because they could not visit all the barges on one day. He also jotted down the names of the barges to which name cards has been distributed. According to the 3rd applicant on neither occasion did he talk to the people on the barges but the 1st and 2nd applicants did tell them to the effect that they had set up a cleaning company, that they would charge $500 a month and asking to be engaged.

17. So much for the evidence of the 3rd applicant.

18. The trial judge convicted the 1st applicant on the basis of his admissions. Principally his statement that the party had gone to collect "tor tei", which the judge had no doubt meant "protection Fee". He convicted the 2nd applicant because of his admitted deep involvement and in particular because of the admission which he made as follows:

"Ah Joe taught me to tell the lighter owners that in fact this cleaning service company wanted to collect money as protection fee from them and that if any rouges or drug addicts harassed them they could page us. We were not required to doing any cleaning work."

19. When convicting the 3rd applicant, the judge said"

"He elected to give evidence and explained that what he meant (when he admitted that they had gone to collect 'protection fee') was that he only knew after he was arrested by police and not at the time he distributed name cards. Under cross-examination, he said he knew "Tor Tei" meant protection fee but he did not know what protection fee was because this term was not taught in school. I reject his explanation and find he understood what protection fee was and he knew what he was doing when he distributed name cards."

20. The grounds that have been argued today by Mr. Tse, who appeared for the 1st applicant, were firstly that there was a failure to give weight to the evidence of PW5 and PW1. It is suggested that that evidence was such as should have occasioned the judge doubt as to whether the statements were voluntary and whether it was true. We are satisfied, as we have indicated, that the judge was quite entitled to act accepting the truth of the statement and not being occasioned any doubt in relation thereto by the evidence of PW1 and PW5.

21. It was next argued that there was a failure to give any weight to the evidence of DW3, a girlfriend. We do not need further to canvass that evidence.

22. The major matter argued was the suggested failure by the judge to consider the injuries which had been suffered by the 1st applicant about which a doctor had given evidence. The assessment of the admissibility of the cautioned statement was a matter for the trial judge. He saw and heard the witnesses and it was for him at the end of the day to say whether or not he was satisfied beyond reasonable doubt by the evidence that the statement was a free and voluntary one. Nothing has been advanced to us today that would allow us to interfere with the decision to which he came in that regard.

23. It is suggested finally that there was no evidence of a demand with menaces properly admissible against the 1st applicant. The trial judge, in that regard, relied upon the admissions of the 1st applicant that he had been to the working area twice with Ah Joe and Ah Tat to distribute name cards and that he knew that they were there to collect "tor tei" The admissions were clear evidence of implication in the making of threats redolent of triad menaces. We reject the suggestion that there was not sufficient evidence to establish the applicant's knowledge of menace and full participation in the visits by the group to the area.

24. The 2nd applicant complained that there was no identification of him at the identification parade. This is true. There was none and the trial judge did not rely upon any such evidence. He suggested that the trial judge listened only to the Crown evidence. It is a little difficult to know what he means by that as, in his case, the only evidence came from the Crown. He neither gave nor called evidence. However that is not to say that the trial judge did not consider and, in our view, consider fairly all of the evidence placed before him before coming to a conclusion of guilt. He suggested that the cautioned statement was not voluntary. We need not dwell at any length upon that as it was a matter for the trial judge. There is no merit in any of the matters raised by the 2nd applicant.

25. The 3rd applicant suggests that there was insufficient evidence. This plainly was wrong. There was, if it was accepted, and the trial judge did accept it, sufficient evidence to warrant a conviction. He also complains as to the failure to identify at the identification parade but the trial judge did not rely upon any such identification.

26. He made complaints as to the failure to make a report shortly after the incident by PW2, as to the evidence of the hand-writing expert as and to the imprecision as to the dates in the evidence of PW2. These are not matters of any real weight and they don't occasion us any concern as to the propriety of the conviction. He complains finally that there was no real evidence implicating him in the blackmail and that the trial judge used intuition and failed properly to consider the evidence. There is nothing in either of these last two complaints. There was ample evidence to warrant a conviction and the trial judge carefully analysed it before coming to his conclusion of guilt. He relied upon clear admissions which implicated the applicant beyond any doubt in the offence with which he was charged.

27. The applications for leave to appeal against the convictions on the second count must also be refused.