R. v. LEUNG KWAN HUNG and Another

IN THE COURT OF APPEAL

1995, No.578

(Criminal)

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J U D G M E N T

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Gall, J. (delivering the judgment of the Court) :

1. The 1st Applicant was convicted in the District Court on 26th July 1995 of two charges of blackmail; one charge of assault occasioning actual bodily harm and one charge of false imprisonment. He was sentenced to a total sentence of 3½ years. The 2nd Applicant was convicted on the same day of three charges of blackmail; one charge of assault occasioning actual bodily harm and one charge of false imprisonment. He was sentenced to a total of 2½ years' imprisonment. Both Applicants seek leave to appeal against their convictions and the 2nd Applicant seeks leave to appeal against his sentence.

2. The facts advanced by the prosecution were that a Mr Wu Hon Wing, a proprietor of a electroplating factory, was contacted in China in December 1993 by a stranger who requested to meet him in Hong Kong for the purpose of introducing a customer to him. On 31st December 1993, a meeting was arranged at the East Lake Restaurant in Tsuen Wan. Mr Wu went to that restaurant where he found that the meeting was with an ex-business partner who was accompanied by four other men, two of whom were the Applicants. The meeting took place during which Mr Wu was threatened and struck by the 1st Applicant whilst the 2nd Applicant stood behind his chair. Mr Wu was forced to sign an I.O.U. and then escorted to his factory to obtain cheque forms with which to make payments in respect of demands made by the 1st Applicant. He was escorted to the factory by two men, one of whom was the 2nd Applicant. The two men were given the cheques at the factory and Mr Wu went home and then to Princess Margaret Hospital where he was found to have haematoma to the left eyebrow and mild chest pain. He made a report to the police.

3. On 15th November 1994, the 1st and the 2nd Applicants together with another man went to the factory of Mr Wu where the 1st Applicant spoke to Mr Wu's wife. Threats were made in the presence of both Applicants to the wife of Mr Wu to the effect that if Mr Wu did not repay a debt he would be injured and his factory destroyed. The debt referred to was that contained in the I.O.U. which he had signed on 31st December 1993.

4. Mr McLanachan for the Applicants raised a number of grounds of appeal. The first was that the learned judge erred in putting a burden on the Applicants to provide affirmative evidence of where they were on 31st December 1993. The basis for this ground of appeal occurred on p.16 in the Reasons for Verdict given by the District Court Judge who in recounting the evidence given by the 1st and 2nd Applicants notes :

"They could not recall where they were on 31/12/93 due to lapse of time. They were arrested only in November 1994. I found their denial to be untrue."

Clearly, this is no more than a rejection of the evidence given by the Applicants and is not a shifting of the burden of proof from the prosecution to the Applicants.

5. The second ground of appeal is that the learned judge erred in failing to consider the evidence on the allegations and the participation of each defendant in each charge separately. The trial judge clearly set out the part played by each of the Applicant separately and the evidence which related to them separately. Mr McLanachan complains that the judge referred to the charges on the indictment as being inextricably related and so they were. That is the sole basis for this ground of appeal and does not warrant this criticism.

6. Grounds 3 and 4 relate to the recalling of Mr Wu by the prosecution and the questions asked by the Judge of him. Mr McLanachan complains that the Judge descended into the arena and improperly called upon Mr Wu to comment upon the evidence of another witness. In asking the questions that he did, the Judge was doing no more than clarifying matters which were not clear on the evidence and, far from descending into the arena, was properly ensuring that evidence before him could be fully understood.

7. The next three grounds of appeal deal with what are claimed to be errors of fact by the trial judge. Firstly, that the injuries to Mr Wu were inconsistent with the description by him of the beatings that he had received. We have before us the medical report from Princess Margaret Hospital which indicated the injuries set out above. The decision as to whether the injuries were consistent with the evidence was one for the trial Judge. He considered those injuries in the light of the evidence of Mr Wu and accepted Mr Wu as being a witness of truth. We are being asked to replace his evaluation of the evidence that he heard with ours, we decline to do so.

8. Mr McLanachan alleges that the determination by the learned judge that Mr Wu was a witness of truth did not properly consider all the evidence before him. It is clear from the careful and full reasons given for the verdict that the trial judge very carefully considered the evidence. He cannot be expected to recite every detail of it and we are satisfied that his approach to and consideration of that evidence was properly and carefully conducted. There is nothing in this ground of appeal.

9. The seventh ground of appeal argues that the trial judge having commented that Chinese restaurants are noisy and having heard that the room in which the offences took place in the restaurant was comprised of movable partitions commented that further partitioning could have taken place was speculation rather than relied upon the evidence before him. The judge did no more than rely upon his commonsense and his every day knowledge of life in Hong Kong.

10. The eighth ground of appeal is that the trial judge erred in the manner in which he determined the 1st Applicant was not a truthful witness. It was argued that having rejected the evidence of the 2nd Applicant as being untruthful, the trial judge then commented on the inconsistencies between the evidence of the 2nd Applicant than that of the 1st Applicant and based his evaluation of the credit of the 1st Applicant upon those inconsistencies rather than against the evidence as a whole. The matters complained of were no more than a comment by the trial judge. The fact was that the evidence was inconsistent and it is quite clear from his Reasons for Verdict that he did not base his evaluation of the credit of the 1st Applicant upon these inconsistencies.

11. The last ground of appeal is that the trial judge failed to consider that witnesses for the prosecution were all connected by relationship and business ties and therefore have a motive to lie to avoid having to repay a debt. The judge was fully aware of the relationship between the parties and the nature of the demands made upon Mr Wu. He made a careful and proper evaluation of their evidence and of their credibility. There is nothing in this ground of appeal.

12. The application by both Applicants for leave to appeal against conviction in respect of each of the charges for which they were convicted in the court below is dismissed.

13. The 1st Applicant also appeals his sentence.

14. In respect of the 1st Charge of blackmail, he was sentenced to two years' imprisonment and in respect of the second, six months' imprisonment concurrent with the sentence passed in respect of the 1st Charge. In respect of the charge of assault occasioning actual bodily harm, he was sentenced to 12 months' imprisonment concurrent with the 1st Charge. In respect of the charge of false imprisonment, he was sentenced to 18 months' imprisonment to be served consecutively to the other sentences.

15. The sole ground of appeal in respect of sentence is that the charges related to two incidents, almost a year apart, but in effect were part and parcel of the same transaction. Accordingly, Mr McLanachan argues that the sentence imposed in respect of the charge of false imprisonment relating to the second incident should be served concurrently with the sentences passed in respect of the charges relating to the first incident. We do not agree.

16. The incidents were separate and distinct and took place in considerable period of time apart and there is nothing in the totality of the sentence passed to warrant a reduction. The application for leave to appeal sentence is dismissed.