THE QUEEN v. LEE KWOK HONG

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JUDGMENT

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Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. This is an application for leave to appeal against conviction.

3. The five charges upon which the Applicant was convicted by Deputy Judge Candy sitting in the District Court were –

First Charge: Blackmail

 

        The Applicant on 26th December 1989 demanded $5,400 from Kwong Chi-hung (PWl) with menaces.

 

Second Charge: Claiming to be a Member of a Triad Society

 

        The Applicant on 26th December 1989 claimed to be a member of a triad society, namely the Fuk Yee Hing Triad Society.

 

Third Charge: Criminal Intimidation

 

        The Applicant on 26th December 1989 threatened Chiu Hon-wah (PW2) with injury to his person, with intent to alarm him.

 

Fourth Charge: Resisting a Police Officer in the Due Execution of His Duty

 

        The Applicant on 26th December 1989 resisted Police Constable 48475 in the execution of his duty.

 

Fifth Charge: Possession of Imitation Firearm

 

        The Applicant on 26th December 1989 had in his possession a pistol lighter.

 

4. There are five grounds of appeal, the gist of which are as follows -

(1)	As regards the First Charge, the trial judge wrongly found there was menace used when the Applicant was alleged to make a demand for money from PW1.
(2)	As regards the Second Charge, the judge erred in finding that the term "Lo Fuk" used by the Applicant refers to a triad society or to the Fuk (or Fook) Yee Hing Triad Society.
(3)	As regards the First, Second, Third and Fifth Charges, the judge erred in his evaluation of the evidence of PW1 and PW2.
(4)	As regards the Fourth Charge, the judge erred (i) in his evaluation of the evidence of PW1 and PW2 as set out in the third ground of appeal, (ii) in finding that the Applicant when confronted by the police officers must have been aware of the reason for his impending arrest, and (iii) in failing to consider the effect of the Applicant's evidence of his injuries allegedly inflicted by the police.
(5)	The convictions are unsafe and unsatisfactory.

5. The judge's Reasons for Verdict are extremely brief. The discussion of the evidence is scanty. In order to have a proper understanding of the case, we have had to consult the transcript of evidence in some detail. There is hardly any discussion of the differences between the evidence of PW1 and PW2, and between their evidence on the one hand and their respective statements to the police on the other, nor of the differences in the evidence of the arresting police officers.

6. We are well aware of the authorities which state that in dealing with inconsistences, contradictions and implausibilities, it is sufficient if a District Judge shows that he is aware of inconsistencies and nevertheless, having taken them into account he is prepared to believe the various witnesses involved, save to an extent as he may specify: see for example, The Queen v Ngan Chi-shing, Criminal Appeal No. 622 of 1988 (unreported). In our judgment, the Reasons for Verdict might have examined the evidence more closely. As the document now stands, it is barely adequate.

7. The evidence against the Applicant was as follows. At about 9.20 p.m. on the 26th December 1989 the Applicant came to PWl's restaurant and asked him to come out for a talk. The two men then went to the rear lane at the back of the restaurant where the Applicant said that the Applicant had offended him because the Applicant had had a quarrel with some one some time ago and PW1 and another helped to beat him up. They spoke in a loud voice, which attracted the attention of PW1's employee PW2, who approached the two men to see what the matter was. The Applicant then took out a pistol-like object (i.e. the pistol lighter) and pointed it at PW2's head, telling him to go away or he would shoot PW2 to death. PW1 told PW2 to return to the restaurant, which he did, followed by PW1, who had told the Applicant to go away. Two or three minutes later the Applicant came to the front door of the restaurant. He and PW1 went to the opposite side of the road. PW1 asked the Applicant his "true purpose". The Applicant then asked PW1 for "Five lakes and four seas" saying that it meant $5,400. PWl was aware that this was triad jargon but did not at first knew what the term "Five lakes and four seas" meant. The Applicant also told PW1 he was of "Lo Fuk" which PWl knew referred to a triad society, though he was not sure of its name.

8. As PW2 returned to the restaurant he saw two police officers and he informed them that a man had pointed a pistol at him. The police then summoned help through the beat radio and other officers came to the scene. The police party went up to the Applicant and PW1. PC 48947 tapped the Applicant on the shoulder. Suddenly the Applicant waved his hands wildly. PC 17058 said, "Don't move. Stand there", but the Applicant continued to wave his hands and move his legs struggling. PC 48475 saw the upper garment of the Applicant being lifted up, revealing "the handle of a pistol", whereupon he took it away from the Applicant and put it in his trouser pocket. The Applicant continued to struggle, and PC 17058 said, "I now arrest you because you are in possession of an imitation firearm". The Applicant "continued his movements of hands and arms", saying, "Police hit people!" He was eventually handcuffed, but not before elbowing PC 48475 in the stomach. The police officers were in uniform.

9. The Applicant also gave evidence, which was rejected by the judge.

10. Returning now to the grounds of appeal, we find no substance in the first ground. Quite clearly the evidence pointed to a classic triad threat. The complaint of having been insulted or offended, the use of triad jargon, and the demand of an odd sum of money having a special meaning - all this must indicate to a man in Hong Kong with a reasonable degree of common sense that menaces were intended. The use of a pistol-like object simply proved beyond any doubt that the Applicant threatened not only PW2 but PW1 as well. In considering whether menaces were present, the whole ambience or total picture must be looked at, not just isolated incidents.

11. As to the second ground, we have no doubt that having regard to the surrounding circumstances in which the term "Lo Fuk" was uttered by the Applicant it referred to a triad society. There was however no evidence to connect Lo Fuk with Fuk Yee Hing. The judge was wrong in finding that PW1 understood that term to be a reference to Fuk Yee Hing which he understood to be a Triad Society. This was not the evidence. PW1's evidence was simply: "I heard from some one it's a triad society. Not sure of its name". Whilst the judge was entitled to consult the book on Triad Societies in Hong Kong by Morgan wherein Fuk Yee Hing is stated to be a Triad Society, he had no evidence upon which to find that Lo Fuk is Fuk Yee Hing. Whether, in a charge of claiming to be a member of a triad society, it is incumbent upon the prosecution to prove that the accused must have claimed to be a member of a known or real triad society, or whether it is sufficient to prove the claim of membership in a triad society, real or fictitious, with or without a name, we do not have to decide in this case, although some of us in the course of the hearing indicated a preference for the latter alternative. In the present case, the charge specifically refers to a known triad society and there is here a lacuna in the evidence which renders the conviction on the Second Charge unsafe and unsatisfactory.

12. The third ground is disposed of by our view that the Reasons for Verdict are barely adequate. This ground fails.

13. There is in our judgment no merit in the fourth ground of appeal. There is clear and strong evidence supporting the conviction for resisting police.

14. In the light of the foregoing the fifth ground of appeal also fails.

15. For the reasons stated above the application for leave to appeal was allowed. The hearing of the application was treated as the hearing of the appeal, the appeal was allowed to the extent indicated, viz. the conviction on the Third Charge was quashed and sentence set aside, the convictions on the remaining charges to stand.