TANG WAI HUNO and Another v. R.

IN THE COURT OF APPEAL

1994, No. 9
(Criminal)

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J U D G M E N T

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

1. The applicant Tang Wai-hung was tried by His Honour Judge Morley as the 4th defendant on 4th December 1993 on a charge of blackmail. The applicant Cheung Yuk-fan as the 5th defendant was also tried with him as were three other defendants. The two applicants were convicted and sentenced on 4th January 1994; Tang to detention in a detention centre and Cheung to imprisonment for three years. They now seek leave to appeal against conviction and sentence.

2. The facts are these. On Sunday, 22nd November 1992, around noon, four youths went to the Kam Hing Hong Motors Service Company in Pat Heung in the New Territories. One of them, subsequently identified as Tang, spoke to the proprietor (PW1). He introduced himself as 'Lee Chai', and said he was of the 14K 'Tak' group, that he wanted to collect money and asked for $1,000. PW1 told them to return that afternoon. About 4 o'clock that afternoon, the youths returned with an adult, subsequently identified by PW1 as the 2nd applicant, Cheung. Cheung claimed himself to be 'Mak Chai' and asked PW1 if he had made a decision as to the money or not. PW1 told him he could not yet make a decision and asked Cheung for a pager number. Before he left, Cheung threatened PW1 by saying if he did not give the money he had better take care.

3. The judge in dealing with the matter rejected the prosecution's submission that the morning and afternoon incidents were correctly to be regarded as one matter. Although closely linked in his view as expressed in his reasons, they were to be regarded as separate incidents. He added that as the charge appeared to him to be laid in respect of the afternoon incident, no one was at risk of conviction unless it could be shown that he had played some part in the afternoon incident. That latter statement is the basis of the first ground of appeal pursued by Mr Antony Delaney for Tang. He submits that with reference to it the judge can be seen to have been in error in his finding that he had no doubt that PW1's evidence as to Tang's presence in the afternoon incident was truthful, accurate and correct. He pursued that ground in three submissions: first, that the judge misapprehended Tang's caution statement to the police, which was exhibit p.5. In that statement Tang stated that:

"In the morning 'Sor Pau' [Cheung] didn't go with us to collect it [meaning the money]. After that, I didn't know if he went to collect it or not."

That, Mr Delaney submits, was a denial by Tang that he was present at the afternoon incident. Therefore the judge misapprehended the statement in stating wrongly that the afternoon incident was not "touched upon". Those latter two words occurred at p.13G of the judge's reasons. However looking at them in the context of that part of the judgment in which they appear, it is clear that the judge was there speaking generally.

4. Second, Mr Delaney submitted that the judge failed to consider fully and fairly that PW1, a man of bad character, may deliberately and dishonestly not only fabricate identification of the applicant but also fabricate and attribute words and actions evidencing participation by the applicant, Tang. It can be seen from his reasons that the judge expressly does refer to the bad character of PW1, but Mr Delaney points to what appears to have been an admission to perjury in an earlier case by PW1 in his evidence. He submits that the judge simply passed that off by referring to the possibility that persons of bad character may be reckless in identification whereas, given PW1's propensity to lie even under oath, he may have deliberately and dishonestly identified Tang and attributed words to him.

5. It is plain from his reasons that the judge gave very careful consideration to PW1's evidence. He appreciated that it was crucial and his consideration of it began at p.4 of the reasons where he referred to PW1's admission to being a bad character and to the criticism directed to PW1's credibility which criticism he itemised at p.6. He then proceeded to examine PW1's evidence, as he said "keeping these criticisms well in mind." He warned himself at p.7, in the context of identification in terms of both Turnbull 63 Cr.App.R. 132, and also of Sharp [1988] 1 WLR 7. He acknowledged that PW1's identification of some of the defendants was not supported by other evidence. Finally, he concluded at pp.8-15 with his acceptance of PW1's evidence and identification with respect to both Tang and Cheung. In the light of that cautious and careful approach Mr Delaney's submission, that the judge failed to consider the matters he complains in that respect in relation to PW1, cannot be accepted.

6. Mr Delaney's third submission on the first ground turned upon the judge not having mentioned that Tang denied that he was present at the afternoon incident which he contrasted to the judge's express reference to the 1st defendant's such denials. It is only necessary to say that there is nothing of significance in this point. Moreover, the judge cannot be expected to mention every piece of evidence.

7. Proceeding to the second ground, this was pursued only in the following respect: that the judge's view recorded in his reasons, that there were two separate incidents, was the subject of a ruling apparently given sometime during the trial. It is complained that this, given the Crown's case that both incidents were part of the same transaction, must have adversely affected the applicant's decision to give evidence or to remain silent. However, it is not suggested that Tang was not afforded an opportunity of giving evidence, which he clearly was.

8. Proceeding to Tang's third ground Mr Delaney also submitted that if this Court took the view that the two incident's formed part of a single offence of blackmail, which we do, that was so fundamental an error as to render the conviction unsafe and unsatisfactory. The judge dealt with this matter at pp.13 and 14 of his reasons. We find nothing of substance in Mr Delaney's complaint. Indeed, it cab be seen from the judgment in the circumstances of this case that the error can only have operated in Tang's favour.

9. The fourth and final ground was that the conviction in all the circumstances of the case in respect of Tang is unsafe and unsatisfactory. We do not agree. Once the judge accepted PW1's evidence, which he did, and which, in our view, he was entitled to do, the conviction, in the circumstances, was inevitable.

10. For those reasons we refuse Tang's application for leave to appeal against conviction.

11. Cheung, in his personally prepared notice of gave only the following ground of appeal application for leave to appeal against conviction:

"My ground of appeal against conviction is on the basis that there were many doubts in my case and first, second and third defendants were already discharged."

12. The discharge of a co-defendant, of course, does not mean he also should have been discharged. However that may be, before us today he did not seek to add anything to his written notice, seeking nevertheless to avail of such of Mr Delaney's submissions as might be of assistance. For substantially the like reasons as we have given in relation to Tang's application, we find no merit in Cheung's applicant for leave to appeal against conviction. His application is refused.

13. Turning to the applications for leave to appeal against sentence, Mr Delaney submits that Tang's actions were simply bravado without menace and that he should have been placed on probation as was one of the other defendants. However, the probation report did not include such a recommendation, whereas the Correctional Services report did recommend a period of disciplinary training as beneficial. In sending Tang to a detention centre, the judge felt that a "short sharp shock" was needed. We agree.

14. As to Cheung, in his personally prepared notice of application for leave to appeal against sentence, he merely stated that "the sentence imposed upon me was too severe". The judge gave his reasons for imposing a sentence of three years' imprisonment. We do not propose to repeat them other than to say that he was clearly the leader. There is no substance in the claim that the sentence was too severe.

15. The applications for leave to appeal against sentence are also refused.