THE QUEEN v. FONG LAU HUNG AND ANOTHER

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JUDGMENT

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Hon. Yang, C.J.:

1. There were three accused who faced various charges before Judge Sharwood in the District Court relating to the false imprisonment and blackmail of a young couple. In this application for leave to appeal against conviction we are concerned only with the first accused Fong Lau-hung (hereinafter referred to as Dl) and the third accused Wong Kin-ming (referred to as D2 in the court below, but hereinafter referred to as D3). The prosecution offered no evidence against the second accused Yee Wai-leuk.

2. D1, having abandoned his application for leave to appeal against his conviction on Charges 3 to 6 (respectively blackmail, claiming to be a member of a triad society and theft), seeks to appeal against his convictions on Charges 1 and 2 (both on false imprisonment). D3 also appeals against his convictions on the same two charges.

3. Put in a nutshell, Dl's complaint is that there being no or no sufficient evidence of bodily restraint of the victims, his convictioins cannot be supported.

4. D3's complaints are in substance:

(1)	that the trial judge erred in finding that D3 was present on the 14th November 1988 and therefore wrongly convicted him on Charge 2 of unlawful imprisoning Miss Lo Kar-yee (PW2);
(2)	that the judge was wrong in dealing with the alibi evidence of D3's mother relating to events on 14th November 1988;
(3)	that the evidence did not support D3's conviction on the false imprisonment of Mr. Hung Man-kwong on 12th November 1988 (Charge 1).

5. In considering the evidence, it would not be realistic to overlook the prevailing atmosphere at the relevant time, and the intimidation and oppressiveness that must be implied in any event with a triad connection, as the present case was. It would not be commonsense to isolate each particular incident without reference to the larger picture as a whole, which was one of demands and negotiations laden with a triad threat.

6. On the 12th November 1988, D3, who had borrowed a bracelet from Miss Lo, met with Mr. Hung in a restaurant at about 6 p.m. to discuss the return of the bracelet, previous attempts at securing its return having failed. D3 brought Dl. After a telephone conversation between Mr. Hung and D1 on the one hand and Miss Lo on the other, Dl complained that Miss Lo had offended him and demanded a payment of $6,000 from Mr. Hung. Dl told Mr. Hung he was not permitted to leave until Miss Lo turned up at the restaurant, threatening to beat him if she did not come. Dl also told Mr. Hung he was a member of the 14K Triad Society. Whilst Mr. Hung and D3 were in the restaurant, Dl went out and spoke to a group of people. When Mr. Hung went out of the restaurant he was followed by a group of people. After walking for about 15 paces, he returned to the restaurant. At mid-night, the restaurant closed for business and as the party left the premises, Mr. Hung took the opportunity to escape. D3 was not in the restaurant throughout the evening but he was the one who brought Dl to the restaurant and introduced him and he was there when Dl said that his girl friend had offended him by saying his name was false and had demanded $6,000 from Mr. Hung and told him to remain in the restaurant.

7. On the evidence we have no doubt that Dl and D3 were, as the judge found, acting in concert in the false imprisonment of Mr. Hung on 12th November 1988. Nothing which has been said by counsel causes us concern that the conviction of Dl and D3 on Charge 1 might be unsafe and unsatisfactory.

8. In dealing with the alibi evidence of D3's mother when considering Charge 2, the judge observed that she appeared to be a decent woman and she might have believed that she was telling the truth. "But," the judge went on to say, "she is the mother of D2 (sic) and as she herself admitted, she wanted to help her son if she could. It may well be that she was mistaken about the time, and found her son in the circumstances described later." The judge then concluded that whatever the situation her evidence did not in the slightest degree cause him to doubt Miss Lo's evidence about D3's presence in the early hours of the 14th November.

9. We find no fault in the judge's statemnet referred to above. It is clear that he thought the mother might have been honest but mistaken, or dishonest in order to help D3. In either case he rejected her evidence and found as a fact that D3 was present at Miss Lo's detention against her will.

10. Miss Lo's evidence, inter alia, related to events from about mid-night on the 13th November to the early hours of the 14th, subject matter of Charge 2. First Dl took her to a restaurant where, joined by D3, he demanded $6,000 from her, saying she was cheeky. They then took her to a housing estate and waited on the ninth floor for Mr. Hung's arrival. She was afraid that she would be in danger if she did not go with them, as "the two of them were not decent fellows".  D2 was silent on this occasion. Again, on the evidence, we are unable to say that the judge was wrong in finding D1 and D3 guilty on having acted in concert.

11. Both applicants' applications are dismissed.