R. v. TANG WAN YAU

IN THE COURT OF APPEAL

1994, No. 554
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. On October 26 last year, before Deputy Judge Jenkins in the District Court, this applicant, a man in his late 30's, was convicted on: three charges of assault occasioning actual bodily harm; three charges of lending money at an excessive rate of interest; and one charge of carrying on business as a money lender without a licence. He now seeks leave to appeal against those convictions.

2. On one of those assault charges, the judge convicted on the basis of the applicant's confession. On the other two, the judge convicted on the basis of the applicant's confessions and the evidence of the victims. On each of the lending charges, the judge convicted on the evidence of the borrowers. On the unlicensed money lender charge, the judge convicted on the basis of the picture which emerged from all the loans proved.

3. When he came to address us, the applicant dealt essentially with two matters. The first was the evidence of the borrower named in the 9th charge, being one of the borrowing charges on which he was convicted. He made a number of points about the evidence of that borrower. Having considered what he said, we are satisfied that there is no substance in the same whatsoever.

4. So we now come to the second matter raised by the applicant: which has to do with the 1st charge, being one of the assault charges on which he was convicted. And here we found something which required close examination. It was this. The victim named in that charge, a Mr Ma Tak-loy, did not give evidence. It was not an agreed fact that Mr Ma was assaulted. And the confession statement on the basis of which the judge convicted on this charge was one in which the applicant said that he did not know the name of the victim, whom he knew only by the nickname of Shoh Pau.

5. However, there was agreement that Ma Tak-loy had been medically examined at 21.35 hours on December 29, 1992, at the Accident & Emergency Department of the Queen Elizabeth Hospital. That date is the date named in the charge. And the medical report which formed part of the agreed facts shows that upon examination Mr Ma was found to have the following:-

"- Two 5 mm long lacerations with swelling over right shin of leg.

- One 5 mm long laceration over left shin of leg.

- One 5 mm long laceration over left elbow.

- Swelling and bruise over right elbow."

6. On the totality of the evidence, the judge was satisfied that the person whom the applicant admitted in his cautioned statement to assaulting was Ma Tak-loy whose injuries were before the judge in that agreed form. We have carefully considered whether that was a legitimate conclusion for the judge to form.

7. Here, we notice that the preamble to the caution which resulted in the confession is very detailed as to time and place and, indeed, as to the nature of the assault. After those details and immediately before the caution itself, the interviewing officer said: "I have reason to believe that you can give me information about this case.". And one finds that the applicant, after caution, responded:-

"I recall that in late December, outside 7-11 (Convenience Store), Tung Tau Estate, (I) hit Shoh Pau. He owed me money (and) didn't repay (me)."

8. We think that it would be fanciful to imagine that the applicant was giving information about a case other than the one on which the police officer said that he believed that the applicant could give information. And when one goes into the questions and answers which resulted when the officer sought clarification of the admission, one finds an even higher degree of matching detail.

9. Again there is detail as to time, place and the nature of the assault. The nature of the assault is vividly described by the applicant as follows:-

"Then, I walked up to (him and) hit his two legs once with the water pipe. Then, (I) hit him again but he warded (it) off with his hands. After beating (him) for several times, I went back to San Po Kong. Then Shoh Pau went away himself."

10. It will be remembered that the lacerations described in the agreed medical report were to the shins of both legs and over the left elbow while there was, the report said, swelling and a bruise over the right elbow.

11. When one looks at the totality of the evidence, it seems to us that the judge's conclusion was legitimate. And the net result is that there is nothing unsafe or unsatisfactory about any of these convictions once they have been examined closely. In those circumstance, the application for the leave to appeal against conviction is dismissed.