HKSAR v. HO WING LEUNG and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No.645
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. The four applicants (to whom we shall refer as D1, D2, D3 and D5) faced two charges of false imprisonment (charges 1 and 2). D5 faced two charges of assault occasioning actual bodily harm (charges 3 and 4) and D3 also faced charge 4. It was alleged that they, together with four other persons, had on 12th January 1996 falsely imprisoned one Chan Tsz-choi (Charge 1) and one Fong Chin-ming (Charge 2) and that they had had on the same date at the Diamond Hill Crematorium, assaulted those persons occasioning them actual bodily harm (Charges 3 and 4). They pleaded not guilty to those charges and were, after trial in the District Court before Judge Gould, found guilty. D1 and D5 were found guilty of the false imprisonment charges. D2 was found guilty of aiding and abetting those charges. D3 was found guilty of charge 4. D5 was found guilty of charges 3 and 4. D1 was ordered to be detained in a training centre, D2 was sentenced to imprisonment for nine months, D3 to imprisonment for twelve months and D5 to imprisonment, overall, for two years and six months. All seek leave to appeal against conviction. Only D5 seeks leave to appeal against his sentence.

2. It was the prosecution case that in the small hours of the morning of 12th January 1996, PW1 and PW4, who were having supper at the Kam Lung Restaurant in Wan Fung Street, Kowloon, were approached by two of the alleged offenders, who at time of trial had not been apprehended, and threatened. They were then forced to board taxis in which were a number of other people and driven to the Diamond Hill Crematorium. Here they were repeatedly assaulted and threats were made to try to force them to repay money owed to one Hung Chun-ping ("Hung"). PW1 was made to phone a friend and to ask him to raise money. $1,000 was taken from PW1 and $100 from PW4. The two victims were then taken to Fei Ngor Shan where they were subjected to further assaults. At about 6:30 a.m. they were driven to a carpark in Jordan Road where they had breakfast and were then escorted to Room No.1 of the Ngai Li Villa at 388 Prince Edward Road where they were kept under guard. At about 11 a.m. Hung came to the villa with three metal chains and five padlocks and the victims were chained to the water pipe in the toilet and then made to lie on the bed. At 7 p.m. PW1 was forced to phone his mother asking her to raise $250,000 on the pretence that he had lost money in Macau. By this time the police had been alerted and two police officers were at the mother's home. At about the same time another party of police had arrived at the newspaper stall in Ngan Chi Wai Road, Kowloon City in an endeavour to locate Hung who was the proprietor of that stall. This stall is in the vicinity of the villa. D1 and D2 arrived at the stall and the police took down their particulars. Shortly thereafter Hung untied the victims and released them. Before they left the villa, however, he told PW1 to raise $250,000 and to deposit it into his ETC account and he took his ETC card and obtained his code so as to be able to withdraw the money.

3. At trial the victims gave evidence but both were declared hostile and the judge considered that their evidence was of very limited use. He said:

"I find that I cannot rely upon the evidence of PW1 and PW4 as to the details of the events or as to the identity of the perpetrators.

That does not mean to say that their evidence is completely useless, however. Though the details are unreliable, I can rely upon the broad description they provided."

4. Although none of the applicants gave evidence, the trial lasted from 5th August to 7th November 1996. Mr. Allan who appeared for the applicants below and who appears for them before us, addressed the court for two days as to the admissibility of the cautioned statements and then finally addressed the court for one day on the general issue. All of the applicants made cautioned statements which after challenge, were admitted by the judge. He was satisfied that :

"If one looks at the prosecution case minus the admitted cautioned statements, there is insufficient reliable evidence to connect any of these defendants to the offences."

He stated:

"I have examined the cautioned statements of each defendant individually, taking care that the remarks made by one defendant in his cautioned statement are not considered as evidence in the case against any other defendant. I make the observation, relevant more to the special issue perhaps than the general issue, that if the police had obtained these statements by beating them out of the defendants, then in some instances the police did a poor job of incriminating the defendants. If the police beat the defendants to submission one would expect that they would have taken the opportunity to complete their purpose by making the apparent concessions unequivocal. As we shall shortly see, some of these cautioned statements are themselves insufficient to establish some of the charges

I am aware that where evidence, which is critical to conviction comes only from a defendant's own cautioned statement, a court should proceed with particular care. However, in the instances which I shall describe shortly, where I have relied upon some part of a defendant's cautioned statement in order to found a conviction, I have done so on the basis that it is a declaration against interest and I can see no reason for his having made such a declaration other than it is true. No defendant gave me an opportunity to consider evidence of any other explanation."

5. Mr. Allan advanced 13 Re-amended Perfected Grounds of Appeal against conviction. In the first it was alleged that the verdict was unsafe and unsatisfactory because the evidence given by PW4 was not true, was misleading and was inaccurate. The applicants sought to have evidence from this witness received by this court under s.83V of the Criminal Procedure Ordinance. PW4 in an affirmation stated that, although he had not said so at trial, the fact of the matter was that he was positively able to say that none of the four accused were involved in the offences. In order to ascertain whether his evidence was "likely to be credible" we allowed him to be called. He was cross-examined by Mr. Bruce for the respondent. In the outcome we refused to receive his evidence as we had no hesitation in holding that it was not likely to be credible.

6. Ground 2 launched an attack upon the admission by the judge of the cautioned statements. It was submitted that in reaching his decision that they were admissible the judge "failed to have regard to the major inconsistencies and doubts in the police officers' evidence". Sixteen matters of complaint were particularized under this ground. Almost all of them failed in limine. As regards almost all of the matters particularized it was manifestly incorrect to suggest that the judge had failed to have regard to them. The fact of the matter is that a cursory reading of his Reasons for Verdict indicates that he did have regard to almost everyone of those matters. At the outset the judge said:

"The admissibility of six cautioned statements, one per defendant, was examined in what was substantively a trial within a trial, although procedurally it took the form of the alternative procedure. A judge is not expected to give reasons for his decision on the voir dire. However, in this case, a few remarks might be in order.

The following comments are not meant to be an exhaustive statement of reasons. In these remarks I will certainly make no attempt to answer every one of the detailed submissions which Mr. Allan made in his two-day long closing submissions on the special issues; although of course, I was able to resolve all of the issues raised by Mr. Allan."

7. The judge did, however, go on to deal, in a detailed way, with almost all of the matters raised in ground 2. We are at a loss to understand how it can be suggested that he "failed to have regard" to them. This ground must fail as the reality is that it seeks to re-open matters of fact which were properly dealt with by the judge.

8. We need deal specifically only with two of the matters raised by this ground. The first is contained in Ground 2(g) and 2(h) which complains that WDPC 18689, who understood English and Chinese, was allowed to remain in court while evidence was given as to matters about which she was later to give evidence herself as she was one of the team which arrested the defendants. The complaint is that "This fact was never disclosed to the defence until well into the trial nor was her police notebook disclosed to the Appellants or their Legal representatives before the trial." In argument it transpired that the real thrust of these grounds was that, although the trial judge accepted the explanation as to how it came about that she had been in court when she should not have been, he went on to accept her evidence without any evaluation as to the weight that should be given to it in the light of the fact that she had been present when other officers had been giving evidence. It would have been better had the trial judge dealt in terms with the evidence of WDPC 18689. However, when his reasons are examined, it is clear that he accepted the evidence from the police officers which, of course, included the evidence of the WDPC. He said:

"Within the prosecution case itself there is no evidence of assaults, threats, inducements, promises or oppression...... None of the prosecution witnesses accepted any of the allegations put to them in cross-examination concerning assaults, threats, inducements, promises or oppressions."

He unarguably accepted her evidence along with that of the other police officers. We do not consider there is any weight in this ground.

9. The only other matter with which we need deal specifically is raised by Ground 2(m). It arises out of the statement made by the judge when dealing with the submission that the fact that there were very similar complaints of assault made by each applicant should be regarded as giving substantial support to the submission that they were spontaneous complaints of something that had actually occurred. The judge when dealing with this said:

"All of the defendants made a formal complaint to the magistrate upon their first appearance on 18 January 1996. The complaint was of assault by police.

Mr. Allan argues that the unanimity of their complaint is significant given that there was a police order for the defendants to be detained separately after their arrest. I do not think the point is as significant as Mr. Allan believes it to be . There would have been opportunities for the defendants to confer together; for example, in the course of being transported to the magistracy, or even in the course of instructing the duty lawyer.

The terms of complaint, as reported by the magistracy prosecutor to the police, are virtually identical for each defendant. These could have been individual complaints but they could equally have been 'me too; responses leading to a global submission by the duty lawyer. One might also wonder why, if the defendants were all individually moved to make a complaint to the magistrate on 18 January, they did not each make a complaint to the Lai Chi Kok medical officers on 19 January. Only D2, D3 and D6 did so. D3 made that complaint even though he had no visible injuries."

10. Mr. Allan submits that this observation of the judge had no basis in the evidence at trial, which he says was that the applicants while in custody were separated and detained in separate cells which were guarded, and that there was, further, no evidence as to the way in which they were brought to the magistracy or as to the way in which they saw the duty lawyer. That being so, he submits it was not open to the judge to find that the applicants would have had an opportunity to confer together. We do not consider that there is any weight in this submission. The judge before making this statement, had observed that:

"Within the prosecution case itself there is no evidence of assaults, threats, inducements, promises or oppression........ None of the defendants have given me any opportunity to consider any evidence of actual assaults, threats, inducements, promises or oppression."

He was clearly satisfied that there was no merit in the complaints of assault made by the applicants. He was, we are satisfied, doing no more when he made the observation than suggesting possible explanations for the similarity of these complaints which he was sure were untrue. He was not making any specific findings in that regard and, we are satisfied, did not rely upon those possibilities when he rejected the suggestion, and it was no more than that as the applicants did not give evidence, that they were assaulted in order to force them to make their statements.

11. Ground 3 alleges that the trial judge "erred in admitting the Appellant's Records of Interviews at the end of the evidence on the special issue having ignored the discrepancies in the prosecution evidence as to the method used to obtain the Appellants signature". It was not clear exactly what was being argued under this ground. We need say no more when dismissing this ground than that the technique used by the officers when taking the statements was dealt with at length by the judge.

12. Ground 4 alleges that the judge gave "no due weight at the end of the evidence on the special issue to the evidence" that "the record of interviews were not made in the way the police officers positively said they were made." Again this ground is on its face difficult to understand. The argument which was advanced by Mr. Allan under this ground was that the preambles to the interviews were so detailed that they indicated a preparation for the interviews by the officers concerned which, in evidence, they denied had taken place. This matter was clearly for the decision of the trial judge and we have no doubt that he had it in mind when coming to his conclusion.

13. Grounds 5 and 7 suggest that the judge failed properly to evaluate the evidence of PW1 and PW4. The judge, as we have indicated, declared both of these witnesses hostile and indicated that he would make no use of their evidence other than as a "broad description" of the events of the evening, about which, except as to the participation of the applicants, there was no real dispute. Mr. Allan submits that the judge should have specifically evaluated the evidence of each of the hostile witnesses and to have used that evidence, where it gave support to the defence, to create a reasonable doubt as to the participation of the applicants. Having declared them hostile, the judge clearly regarded them, as he was entitled to, as unreliable witnesses. We have, moreover, no doubt that if anything they said had raised a doubt in his mind as to the participation of any or all of the applicants he would have given heed to it. There is nothing in these grounds.

14. Ground 6 was abandoned and we therefore turn to ground 8. This urged that the judge adopted

"a wrong approach when considering and evaluating the evidence on behalf of the Crown, in that he too readily concluded the appellants were guilty of the various offences without having fully analyzed and resolved the conflicts or inconsistencies in the Crown's evidence, and in particular placing full weight to the appellants record of interview even though they contradicted the two victims version of events on the 12th of January 1996, and where such glaring conflicts exists in the victim's evidence and the appellants Record of interview so as to cast a reasonable doubt upon the matter, such conflicts of evidence should have been resolved in the appellants favour."

This is really a recasting of grounds 5 and 7. Mr. Allan again submits that the discredited evidence of PW1 and PW4 should have raised doubts in the judge's mind. As we have already said, the judge was entitled to refuse to give any but limited credence to their evidence which clearly did not raise any doubts in his mind as to participation by the applicants.

15. Ground 9 suggests that the judge "failed to consider that neither of the two victims could recognize any of the men in the dock as having taken part in" the offences. The simple answer to this contention is that the judge did refuse to give any weight to this matter and that he was entitled so to do.

16. Ground 10 also complains of the failure "to consider properly or at all the major discrepancies in the two different versions of the two victim's evidence". We have already dealt with the proper refusal of the judge to give credence to the evidence of the hostile witnesses.

17. Ground 11 contends that the judge "failed to direct himself properly or at all on the issue of lies in respect of the 2nd appellant" and "was wrong in law to conclude that the only proper or irresistible inference to be drawn was one of guilt when in fact there was also an innocent inference which could have been drawn in the 2nd appellant's favour." It is not clear what was meant by the reference to lies. The thrust of this ground was that there was no evidence sufficient to warrant the conviction of D2 of aiding and abetting the two false imprisonment offences. D2 admitted being present at the villa but said that he had gone there only to take a "gastric drug" to Ah Chun. He went on:

"Only inside the villa did I see Tai Tsz and a male being locked up in bed with iron chain. They looked like having been hit by someone. At that juncture I then knew that Tai Tsz and the male were detained by Ah Chun. At the same time I heard Ah Chun ask Tai Tsz to telephone his relative or friend saying that he had lost money in Macau and was raising money to repay to someone. Ah Leung and I sat until 7 o'clock when we left the villa and went to a newspaper stall in Nga Tsin Long Road to buy books for reading."

The judge was prepared to accept that his presence at the villa was "relatively accidental". D2, however, went on to say that, after having been to the villa:

"....... we were stopped and questioned by the police. It was learnt that the police were looking for Ah Chun. Later, I telephoned Ah Chun saying that the police was looking for him. That's all. I don't know the other things."

18. The judge made the following finding in this regard:

"D2 did know, once he was there, what was happening but he did nothing. However, and this is very significant, D2 warned Ah Chun by phone that the police were looking for him. This could be regarded as assisting an offender. That would be an offence under Section 90 of the Criminal Procedure Ordinance because the offence had been committed. On the other hand, false imprisonment of this nature is a continuing offence as long as the detention is continued. I regard D2's action in phoning Ah Chun as aiding and abetting an offence which was still continuing. Under Section 89 of the Criminal Procedure Ordinance a person who aides and abets an offence is guilty of the like offence."

19. It is the submission of Mr. Allan that the admission by D2 that he had telephoned "Ah Chun saying that the police was looking for him" was not evidence which could support an overwhelming inference of guilt. When we put that admission together with the admission of knowledge that PW1 and PW4 were being held against their will in the villa and were being pressured to obtain money, we have no hesitation in holding that the evidence was sufficient to give rise to such an inference, to the exclusion of all others, that the applicant was phoning Ah Chun in order to aid and abet him in the commission of the offence of false imprisonment.

20. Ground 12 contends that the judge failed to give sufficient weight to the fact that the statements by the defendants were mixed statements which contained exculpatory elements. This complaint relates to D1, D2 and D3. The judge dealt in a careful way with each of the statements and was not prepared to act upon admissions against interest which he considered to be in any way equivocal. We reject any suggestion that he somehow failed to give heed to exculpatory parts of the statements. He made proper use of the admissions contained therein. This ground is also rejected.

21. Ground 13, the final ground, is that the convictions were unsafe and unsatisfactory.

22. We find no merit in any of the grounds a number of which should never have been advanced at all and are satisfied that the convictions were both safe and satisfactory.

23. The 4th applicant, who was D5 at trial, appeals also against his sentence which was an overall sentence of 2 1/2 years. His involvement was indicated by the trial judge in the following way:

"D5 is also charged with two counts of False Imprisonment and two counts of Assault Occasioning Actual Bodily Harm..... On the assault charges there is ample evidence."

And the judge then goes on to deal with the evidence of the admissions made by the applicant in his cautioned statement. He says, as regards the false imprisonment charges, that the evidence is ample for the purpose of establishing false imprisonment and he then goes on to convict the applicant on all four charges.

24. When dealing with sentence, the judge said:

"It is clear, however, from the case, that false imprisonment is a serious offence. It is a direct interference with the liberty of the citizen to go where he or she may please. It is also an attempt to set up a sub-culture of law enforcement, running parallel with the system sanctioned by lawful government.

On the facts of the present case, I adopt a starting point for the main players of 3 year' imprisonment. As I have already indicated that these five defendants are not the main players, their sentences on the false imprisonment charges, where appropriate, will be lower than 3 years.

As to the charges of the assault occasioning actual bodily harm, the injuries caused to both victims were significant, but fortunately they were able to recover from them. The assault occurred at an isolated place to which the victims were taken against their will. The assault took place with a group of about 10 attackers acting in concert. For the AOABH charge, I adopt a starting point of 12 months. The AOABH will be sentenced consecutively to the false imprisonment charge. They are separate offences and, as I have indicated, false imprisonment can be committed without any affirmative force."

25. The judge went on, when dealing with the 4th applicant, to say that he had been found guilty of two counts of false imprisonment and two of assault. He said:

"He is not a main player in the false imprisonment. Perhaps he was influenced by others, but I do not accept that he was easily influenced. I believe that he was willingly influenced and ready to be involved. On the facts of his involvement, which I set out when giving reasons for judgment, I think the appropriate sentence on false imprisonment is 2 years. I have indicated that the AOABH offence should be sentenced consecutively but I consider that, to some extent the sentences should overlap .......... because ............ the totality principal and I fix 2 years 6 months' as the appropriate length of sentence to represent D5's criminality."

And he then went on to impose sentences the total of which was 2 years and 6 months.

26. The applicant, when appealing against those sentences, suggests that the judge did not give sufficient weight to his age (he was 17 1/2 years at the time of the offence), to his family circumstances and, particularly, to the alternatives of training centre or detention centre. The judge had sent for detention centre reports and he clearly had that before him and had them in mind but he was, as he has indicated in what he said, mindful of the fact that false imprisonment is a serious offence. The judge, we have no doubt, considered all of the alternatives. We are unable to say that he was either wrong in principle nor that the sentences were manifestly excessive, given the nature of the offences, and the application must, therefore, be refused.