HKSAR v. CHAN CHI KIN

CACC 542/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 542 OF 2011

(ON APPEAL FROM DCCC NO. 536 OF 2011)

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DECISION

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Hon. Yuen JA:

1. This is the Applicant’s 3^rd application for bail pending appeal, his 1^st application having been rejected by Cheung JA on 28 February 2012 for reasons handed down on 5 March 2012, and his 2^nd application having been rejected by myself on 17 April 2012 for reasons appearing in a Decision of the same date.

2. The Applicant had been found guilty of one charge of blackmail and one charge of claiming to be a member of a triad society, for which Deputy DJ Woodcock (as she then was) sentenced him to a term of imprisonment of 3 years.  He has now served about 1 year of that term.

3. It may be convenient to set out the background to this case as summarized in my earlier decision. The prosecution case was that on 14 March 2011, PW1 was approached at his bar in Tsuen Wan by the Applicant who introduced himself as “Ah Kin” of “Shing Yee” and demanded a protection fee of $3,000 and 200 bottles of beer to treat his “brothers” (it was an admitted fact that “Tsuen Wan Shing Yee” in triad jargon meant the Wo Shing Yee triad society in the Tsuen Wan district).  Shortly after the Applicant made that demand, police arrived and arrested him.  The police had been alerted by PW1 earlier that day pursuant to an approach made to him by some other persons a few days previously.    

4. The Applicant did not give evidence at trial.  His counsel suggested to PW1 that the conversation related to the Applicant’s proposal to be PW1's agent.  This was denied by PW1.  The Applicant called one defence witness Mr Leung who said that the Applicant was his agent, but he was not present at the bar that night.

5. In the Reasons for Verdict, the trial judge reminded herself of the applicable legal principles and accepted PW1's evidence as to what the Applicant said.  She found that the CCTV footage supported PW1's version of events and any discrepancies were minor.  She found that Mr Leung’s evidence was not relevant and he was not present at the bar that evening. 

6. The Applicant has applied for leave to appeal against conviction.  In a document dated 22 December 2011, he set out 9 grounds of appeal.

7. On 5 March 2012 the Applicant set out 3 new grounds of appeal.  These have been discussed in my earlier decision and I will not repeat that discussion here.  In relation to the ground of appeal relating to the Applicant’s complaint about his counsel, there has since been added to the papers an affidavit from his counsel Mr Ronald Mayne, the contents of which do not assist the Applicant’s case. 

8. In this 3^rd attempt, the Applicant has repeated more than once  matters he has previously advanced (albeit in more detail), but I cannot see in reality any proper fresh grounds of appeal. 

9. The Applicant has now appended statements made by Wong Ngai-bun, Ngan Ting and Wong Lai Yau.  Each claims that he/she knew PW1 was giving false evidence, but none explicitly states what that false evidence was and how he/she knew it to be false.  This is completely inadequate to ground an application for bail pending appeal.  In any event, the Applicant’s instructions at the time of trial (as recorded in an email from his solicitors to Mr Mayne) was that the Applicant had confirmed in writing that “testimony of Ngan and Wong are of no assistance to him [the Applicant] and their testimony may be inconsistent to his own testimony which may be disadvantageous to him”.   

10. The Applicant has also now appended a statement of Wong Chi Ting saying a police officer surnamed Lee who took part in the arrest knew the Applicant.  That in itself does not help the Applicant’s case.  Further, from Mr Mayne’s affidavit, it is clear that this matter had been considered in preparations for trial, and it was decided that the Applicant’s wish to allege a conspiracy between that police officer and PW1 would have required the defence to request a hostile witness to give evidence, and so that was not pursued.  

11. Accordingly there is nothing new in these materials and I am not persuaded that prima facie the Applicant’s appeal is likely to be successful.  The application is dismissed.