THE QUEEN v. LAW SIU KEUNG

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Law Siu Keung - "the applicant" - appeared for trial before His Honour Judge Moylan in the District Court on a charge sheet containing three charges. The first was attempting to pervert the course of justice, contrary to Common Law; its particulars alleged that the applicant, on 5th July 1990, at Lam Kit Engineering company, Tin Ha Road, Hung Shui Kiu, Yuen Long, New Territories attempted to pervert the course of public justice by threatening Lau Kwok On in order (sic) not to testify against So King Sheung in court, intending thereby to pervert the course of public justice.

3. The second was blackmail, contrary to section 23(l) and (3) of the Theft Ordinance. Its particulars alleged that the applicant, on the same date and at the same place, with a view to gain for himself made an unwarranted demand of HK$3,000 from Lau Kwok On with menaces.

4. The third was criminal intimidation, contrary to section 24(a) of the Crimes Ordinance, Cap. 200. Its particulars alleged that the applicant, on the same date and at the same place, threatened Lau Kwok On with injury to his person with intent to alarm Lau Kwok On.

5. The applicant was convicted after trial and sentenced to a 'period of 18 months imprisonment on each of the counts concurrent. He now seeks leave to appeal against conviction.

6. It was the case for the Crown that Lau Kwok On was using a small portion of land to carry out his business of repairing construction machines. The address he gave was 11A, Tin Sum Sun Chuen, Tin Ha Road, Yuen Long, Hung Shui Kiu. We shall call the land in question "11A" for ease of reference. This was a business he had carried out since 1987 and on the land were two tin huts and a container. One of the tin huts was used by Lau Kwok On, the other was used by a witness called for the defence, Mr. Lai Chin Wah (DW3) whose father was known as Lai Kai.

7. It was Mr. Lau Kwok On's evidence that the applicant came to see him on 5th July 1990 at about 10:30 a.m. He was asked if he had reported a matter concerning "Tsan Pau" to the police.

8. That requires some explanation. "Tsan Pau" is the nickname of So King Sheung. In June of 1990 Mr. Lau had made a report to the police that he had been blackmailed by three persons of whom one was So King Sheung and another, Ngan Chu. He knew that the police had arrested So King Sheung and Ngan Chu. He was served with a summons to attend court. Later, in 1991, he did attend the trial of So King Sheung and gave evidence at it.

9. Mr. Lau's evidence went on that, when he had answered the applicant's question as to his reporting to the police in the affirmative, he was told he had better stop otherwise "Tsan Pau" would find people to beat him to death. The applicant said that it was "Tsan Pau" who had told him to come. There was then a demand for $3,000 and Mr. Lau was told if that were paid, he would hear nothing further. He was also told that the police were not going to prosecute "Tsan Pau" and that that would be the end of the incident. The applicant advised him to say, if he were asked about the matter, that it was a misunderstanding and, if he did not testify against "Tsan Pau", the matter would be settled amicably. The applicant advised Mr. Lau that he should not make a report of what was then happening to the police "otherwise I will beat you up to death" and that, after he had made an appointment to see "Tsan Pau", he would contact Mr. Lau again. Mr. Lau was told to think how he would explain to "Tsan Pau". No money changed hands.

10. Mr. Lau said he had known the applicant from about 1988 and as a customer of his machinery business. The incident on 5th July left him very frightened and when the police rang him a few days later he told them of it.

11. Mr. Lau was cross-examined at length and the thrust of the cross-examination was to suggest that this was really a New Territories land dispute and that, in any event, Mr. Lau had completely misunderstood the applicant. All the applicant was doing was to ask Mr. Lau to give him back occupation of his own land, he having been given permission to use it by the village chief of Tin Sum Sun Chuen. The applicant had worked there in partnership with Mr. Lai Kai.

12. It was Mr. Lai Kai, according to Mr. Lau, who permitted him to enter into occupation of the land in the first place. He produced, in the course of his cross-examination, a written Lai Kai showing that Mr. Lau $20,000 to hire the land for document purportedly signed by had paid Lai Kai the sum of a period of 5 years.

13. The production of this document clearly took the defence by surprise. Counsel then appearing for the applicant stated that this was the first time he had seen the document and he questioned the authenticity of the signature of Mr. Lai Kai. He went on to ask that the document be produced in evidence, and, without objection from the Crown, it was produced as Exhibit 1. The terms of the document do not appear to have been disputed. Its authenticity, generally, was. Mr. Lau, when asked why he brought the document with him to court, replied that the last time - by which we take it to mean the trial of "Tsan Pau" - he had also taken it with him as he be asked some questions about his right to He had been asked that type of question on occasion in court. Mr. Lau was questioned blackmail attempt by "Tsan Pau" Tsan Pau and three persons had come to see him. They said they were "14" and had asked him to pay $20,000 saying that, if he did so, no people would come to trouble him. He was promised, but did not believe this, that, if he paid up, "Tsan Pau" would cause a road to be repaired so that traffic could more easily travel along it. Mr. Lau went on that he was told that, if' he refused to pay, his machinery would be burnt. Further, that others had also paid and if a report was made to the police "he would do disadvantage to me". His wife and children were threatened. thought he might occupy the land. his previous about the earlier He told the court that

14. At one point in the cross-examination, he was asked if he agreed that. the applicant had said to him, in relation to making a report to the police about "Tsan Pau", "You should do that, you should make a report to the police." Mr. Lau replied that this had been said but that he did not believe that the applicant was really encouraging him to make a report to the police. He agreed with counsel that he had spoken, after 5th July 1990, by telephone to Mr. Lai Chin Wah. Mr. Lai Chin Wah had paged him and he had returned the call. He accepted that Mr. Lai Chin Wah had occupied one of the huts on the land and done some business there, but was seen with considerably less frequency in recent years. In answer to the judge he said that the two huts and the container on the land could be locked and that Lai Chin Wah and himself had keys to them all.

15. After a constable had given evidence of the arrest of the applicant and of a statement he had made at the District Anti Triad Squad of Yuen Long Police Station, which was produced without objection, the Crown's case closed.

16. Counsel then appearing for the applicant informed the court that he would be calling his client but that he would then be asking for an adjournment. This adjournment related to the telephone call and the provision of a transcript of the conversation, for Mr. Lai Chin Wah had set up this telephone call for the purpose of attempting to get evidence against Mr. Lau Kwok On and had recorded it on a cassette-tape.

17. The applicant then gave evidence speaking of his right to the piece of land and of his visit on 5th July to ask for the land back from Mr. Lau Kwok On. He said that he himself had had a disagreement with "Tsan Pau" and that he was very happy to know that "Tsan Pau" had been arrested by the police as a result of the complaint by Mr. Lau Kwok On. He had been told previously by Mr. Lai Chin Wah that "Tsan Pau" was attempting to make monthly collections. He had advised Mr. Lai Chin Wah that money should not be given to "Tsan Pau" but, if "Tsan Pau" insisted on it, then there should be a report to the police.

18. He had first met Lau Kwok On in 1987 when he was introduced to him by Mr. Lai Kai who said that Lau Kwok On was his good friend and wanted to use the land to carry out business. The applicant had said there was no problem for it was his land and it was he who permitted Mr. Lai Kai to use it for his work. That had been in 1980. He could do so because he had had a casual arrangement with the village chief who had allowed him to use the land from about the same time. He had no documentary evidence in relation to this. It was he, the applicant, who had put up the two metal boxes, as he described them, and the container. He told counsel then appearing for the Crown that it was he who mentioned to Mr. Lau Kwok On that each stall in the village would contribute $3,000 for the cost of repairing the road to the land. That was the only reference to money.

19. The next witness was Mr. Chan Tin Chai, the village chief. He gave Fsomewhat complicated evidence on his being nominated to look after land which had originally been that of the Wong family and then become the land of the Kong family. Both families had emigrated and he had been placed in de facto charge. He was vague as to what exact piece of land he was talking about and of him the trial judge said:

"Evidence given by the first witness called for the accused, one of the two village elders, was more than confusing on the subject of who the real owner of the land in question is. The witness was singularly unhelpful with the recitation of the Wongs and the Kongs and how he came to have any connection with the land, but I am prepared to accept that sometime in the very early 1980s the accused and his mother asked for and were given 'permission' by that witness to make use of the land: it also seemed to be logical that if he were to store construction machinery on that land, it would be necessary to widen the village road from what I am told was its then 3 feet width. I accept that the accused did do that."

20. On the third day of the trial, 21st February 1991, the village chief's evidence was interposed with that of Mr. Li Kwok Choi. On its resumption the village chief said that, in 1980, he himself had started to use it without any payment.

21. At the conclusion of the village chief's evidence counsel, having informed the court that he had one further witness, Mr. Lai Chin Wah, asked for the foreshadowed adjournment. The trial went over to 20th May 1991, a period of three months.

22. On its resumption Mr. Lai Chin Wah gave his evidence. He stated that his father Mr. Lai Kai had been allowed by the applicant to use the land and had, in turn, allowed Mr. Lau Kwok On, in 1987, to use it. He said his father himself and Mr. Lau were all working on the land at that time. To his knowledge there was no written agreement between his father and Mr. Lau Kwok On. He spoke of a meeting between the four of them, that is Mr. Lai Kai, Mr. Lau Kwok On, the applicant and himself. It was at this meeting that his father introduced the applicant to Mr. Lau Kwok On. Mr. Lau Kwok On was fully aware that the Lai family had been permitted to use the land by the applicant. His father in 1987 made most of the decisions concerning the land. He supported the applicant's evidence by saying that, in May of 1990, he had told the applicant that he intended to close down his business and go for further study. The applicant had told both himself and Mr. Lau Kwok On to discontinue using the land in about August of that year as he wanted it for himself.

23. Upon being shown the document Exhibit 1 produced by Mr. Lau Kwok On he said that he had seen this document before he had come to court at the commencement of this trial in February. He then pointed to the exhibit saying that this was the only way he father signed his signature but he went on to say:

24. "I think it is not the signature of my father."

25. He stated he had been asked to find some document which contained his father's signature. He produced what he described as a Re-entry Permit. Counsel then appearing for the Crown indicated that this was not, in fact, a Hong Kong Government Re-entry Permit but a document issued by China Travel to "Hong Kong and Macau compatriots". Counsel for the applicant then stated in terms:

26. "In that case I leave that."

27. Mr. Lai Chin Wah spoke of the telephone conversation between himself and Mr. Lau Kwok On and produced the transcript. He accepted that he had made the recording because he knew, as he put it:

"that Lau Kwok On had wrongly accused Law Siu Keung and in order to protect my own interest I made the tape recording."

He did not want to be involved in the blackmail and intimidation matters. He said that, in 1987, his father was in and out of hospital and could not talk.

28. In his final submission, counsel for the applicant made it quite clear that the document which became Exhibit 1 went directly to the credibility of Mr. Lau Kwok On. He said that if the accused and his witnesses might be telling the truth on the right to use the land that provided a powerful motive for Mr. Lau Kwok On not to tell the whole truth in order to get the accused convicted and get him out of the way. He stigmatised Exhibit 1 as being produced "out of the blue" and expressed doubt as to its authenticity.

29. This lengthy recitation has been necessary in order to set the background for, first, the application by the applicant, under section 83V of the Criminal Procedure Ordinance, by way of Notice of Motion, to adduce fresh evidence and secondly, the consideration of the grounds of appeal. To deal first with the application under section 83V.

30. Mr. Dixon Tang, who appears for the applicant in this court, seeks to introduce fresh evidence in the nature of a statement by an expert Mr. Shum Lau as to his examination of the signature on Exhibit 1 and comparing it with a document containing an identified signature of Mr. Lai, together with ancillary evidence contained in affirmations from a solicitor and from Mr. Lai Chin Wah. Should he be successful, the Crown, in a mirror application, would seek to introduce the evidence of their expert, Mr. Leung Sze Chung, in opposition to Mr. Shum Lau's conclusions.

31. Mr. Tang relies on the provisions of sub-section (2) of section 83V, though there is no reference to this in the Notice of Motion. The solicitor deposed to the fact that the documents used by Mr. Shum to test the authenticity of Mr. Lai Kai's signature on Exhibit 1 only became available after the conclusion of the applicant's trial. Mr. Lai Chin Wah, who had been invited to be a witness for the applicant in January of 1991, stated that he was asked, on 13th May 1991, to find, for the purpose of comparison, some documents which bore his father's signature. A search produced the Re-Entry Permit referred to in the later part of the trial. After the applicant's conviction, on 28th May 1991, Mr. Lai Chin Wah was asked to make a further search, having been given to understand that the Re-Entry Permit he had earlier produced had been rejected at trial. This "understanding" was clearly erroneous on the face of the trial transcript. He further deposed to the finding of another document, which was the document examined by Mr. Shum Lau.

32. We refused the application to introduce fresh evidence. While mindful of the interests of justice, there had been more than ample opportunity in the three-month adjournment which had taken place in the course of the trial to have a document examiner perform the exercise that Mr. Shum Lau has now performed. Mr. Shum Lau would have been a compellable witness in the trial proper. We are not, however, by any means satisfied that there is a reasonable explanation for the failure at trial to take the course the defence now wish to take. This court is not a trier of fact, that is for the court below. There was nothing to inhibit, if it had been thought necessary, and clearly it was thought necessary, the full raising of the issue in the course of the trial and to arrange for and call the necessary evidence there.

33. The grounds of appeal.

34. In ground 1(a), items (i) to (vi), Mr. Tang has set out the main planks of the prosecution's case and, in ground 1(b), items (i) to (iv), that of the defence. He suggests, in ground 1(c), that the trial judge erred in four of his findings of fact. With respect to him, that is predicated upon an acceptance by the trial judge, and by this court, of the evidence given by the applicant and his If that evidence is rejected, as it was, then it judge was in error in making in the four items in witnesses. cannot be said that the trial the findings as complained of paragraph (c).

35. Ground 2 alleges that in finding Lau Kwok On to be a wholly credible witness, the trial judge again failed properly to consider certain factual evidence. Paragraphs (a) and (b) of ground 2 related to the telephone conversation Mr. Lai Chin Wah had had with Mr. Lau Kwok On. Having considered that transcript, and the generality of the evidence given about it by Mr. Lai Chin Wah, we are in agreement with the trial judge when he said of it:

"I say that the language is impenetrable - not only is the language impenetrable but the topics of conversation are too because D.W.3 later in that conversation asked P.W.1 if the case has been tried yet."

36. The trial judge was aware that Mr. Lai Chin Wah was a good friend of the applicant and that he had set up this telephone conversation for the purpose of obtaining some evidence. With respect, he was perfectly entitled to pay it little attention.

37. We accept that there was an oddity, as we have already indicated, in the applicant saying to Mr. Lau Kwok On that he should make a report to the police concerning "Tsan Pau". But it is clear from Mr. Lau's evidence that he was somewhat sceptical of this advice. That evidence was before the trial judge. It was for him to evaluate.

38. Ground 3(a) really turns again on what evidence does one believe. It alleges that the judge was wrong in thinking that Mr. Lai Kai was capable of writing and did sign Exhibit 1 when there was evidence, in or about the time this document was made out, that Mr. Lai Kai was seriously ill and unable to speak. Mr. Tang places great emphasis on the use of the word "agreed" used by Mr. Lau Kwok On when he said that both he and Lai Kai agreed to create the permission to use the land upon payment. Further, he places reliance on Mr. Lai Chin Wah's statement that he did not think that the signature on the document was that of his father.

39. As the judge was fully aware, Mr. Lai Chin Wah's own evidence was that his father was in and out of hospital during that period. This quite clearly did not preclude a meeting between Mr. Lai Kai and Mr. Lau Kwok On, nor did it preclude the making of a document such as Exhibit 1.

40. The judge had held himself satisfied that, by 1987, the applicant had very little, if any, connection with the disputed land. lie accepted the evidence of Mr. Lai Chin Wah that most of the decisions in respect of the land were made by Mr. Lai Kai who had died on 27th August 1987. He found that Mr. Lai Kai had allowed Mr. Lau Kwok On to use the land and one of the structures on it, and that no one, other than Mr. Lai Kai, Mr. Lai Chin Wah and Mr. Lau, had keys to the structures. He was entitled, on the evidence, to come to these findings of fact.

41. Ground 4(a) suggests an inconsistency in the findings of the trial judge which, with respect to Mr. Tang, really does not exist. The trial judge did not accept that the evidence of the accused and his witnesses was as consistent or logical as the evidence of Mr. Lau Kwok On. He was perfectly entitled to come to that conclusion.

Ground 4(b) alleges that the trial judge failed sufficiently to evaluate the evidence given by the defence by failing to fully set out his reasons for rejecting the defence evidence, in particular that of Mr. Lai Chin Wah.

42. We accept that the Reasons for Verdict are in part elliptical and somewhat obscure. But the sole issue which lay for the decision of the trial judge, whether it had been proved beyond a reasonable doubt that the accused had committed the offences alleged against him, was clearly in the forefront of his mind. We have gone through, in detail, the transcript. We have examined with care the corrected Reasons for Verdict - the first corrupt version having been remitted to the trial judge in January for the corrections to be made for reasons then given. The subsidiary issue was credibility. The trial judge accepted that Mr. Lau Kwok On was "frank, logical, consistent, honest and wholly credible". He did not consider that the evidence of the a accused and his witnesses was of a similar nature. Having considered the submissions made to him and the evidence which had been placed before him, the trial judge stated himself to be:

"... not left with suspicion and I am not left with possibilities: I am left with the certainty that the accused did on the 5th July of last year so conduct himself as to commit the offences that are particularized in Counts 1, 2 and 3 of the Charge Sheet."

43. In coming to that conclusion, he bore in mind the previous good character of the applicant. He remained certain that the guilt of the applicant had been established.

44. The judge on the whole of the evidence was entitled to come to that conclusion. We do not consider these convictions to be either unsafe or unsatisfactory. The application for leave to appeal against conviction is, there fore, refused.