R. v. SIU CHI HO and Another

IN THE COURT OF APPEAL

1995, No. 80
(Criminal)

_______________

________________

J U D G M E N T

________________

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

1. Both applicants seek leave to appeal against their convictions for attempting to obtain property by deception. The 1st Applicant's application was out of time when it was made and he seeks leave notwithstanding this.

2. The reason he gives for being out of time was that his father had paid for his legal representation at his trial and that he had hoped that he would be able to engage the services of the same lawyer on the appeal. His father had informed him that he could not afford the additional fees. When he had then applied for legal aid he was out of time.

3. The reason given by the applicant is not an acceptable excuse and we decline to hear his application.

4. Four defendants including the two applicants pleaded not guilty to this offence before His Honour Judge Muttrie.

5. The facts were fairly simple. On 19 August 1994 the victim (PW1) was approached by his friend, the 1st Applicant who suggested that he might like to sample some cannabis. PW1 agreed and they went to premises occupied by the 4th defendant.

6. After some purported cannabis was sold to PW1 for $250 the 4th defendant withdrew on the pretext of going to the toilet.

7. When he returned the 3rd defendant also entered the premises claiming to be a police officer.

8. He searched PW1 and found the cannabis. He was at the time holding handcuffs with which he hit PW1 on the right side of his face causing abrasions.

9. The 3rd defendant also asked the 4th defendant what was in the bag on the television set and was told that it contained white powder.

10. The 1st defendant then offered to bribe the 3rd defendant if he would agree not to take action against them. They agreed a bribe of $300,000.

11. The 1st applicant then telephoned a friend to bring the money. It was the prosecution case that the 2nd applicant was the friend.

12. The 2nd applicant arrived with the money, $280,000 by way of a cheque and $20,000 in what purported to be cash. This was given to the 3rd defendant.

13. The 1st and 2nd applicant and PW1 then went together to a restaurant and PW1 and the 1st applicant signed I.O.U.'s for $150,000 and gave them to the 2nd applicant.

14. PW1 according to his evidence was afraid to go home after this. He did however tell a friend who advised him to consult a lawyer and report the matter to the police. He followed this advice.

15. Demands were made both to PW1 and his mother for payment under the I.O.U.

16. A meeting was set up by the police between PW1 and the 1st applicant.

17. At this meeting the 1st applicant said that the 2nd applicant no longer wished to pursue his claim under the I.O.U. He was however arrested and charged with this offence.

18. The other defendants were all identified and likewise charged.

19. None of the defendants went into the witness box.

20. His Honour Judge Muttrie gave detailed reasons for accepting the evidence which had been given by the prosecution and convicted all of the defendants as charged.

21. In his written grounds of appeal the 2nd applicant complained that discussions or negotiations took place with PW1 prior to the trial and various payments were effected by the 1st applicant to him or on his behalf.

22. No sensible explanation has been forthcoming why the 2nd applicant did not give evidence concerning this at his trial.

23. Before us the 2nd applicant did not say anything which ready took matters any further. The conviction is in no way unsafe or unsatisfactory and this application is dismissed.