HKSAR v. IU SHUI TAI

CACC235/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICITON

CRIMINAL APPEAL NO.235 of 1999

(On Appeal from DCC 188 of 1999)

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J U D G M E N T

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Pang J. : (giving the judgment of the Court)

1. The Applicant Iu Shui Tai was charged with one count of attempting to obtain property by deception, contrary to s.17 of the Theft Ordinance, Cap.210 and s.159G of the Crimes Ordinance, Cap.200. He pleaded not guilty to the charge. The matter was heard before Judge Toh in the District Court and after his trial, the Applicant was convicted as charged. He was sentenced to 2 1/2 years imprisonment. He applied for leave to appeal against conviction and sentence.

2. On 8 October 1999, we dismissed both applications and we now give our reasons for doing so.

Background

3. Dr Walton Li and his wife had been involved in maintenance proceedings and it was widely reported in the media that the claim by the wife involved a substantial sum of money. According to the prosecution, on 24 December 1998, Dr Li received a telephone call from the Applicant who claimed to be a member of a mutual assistance organisation and he knew about Dr Li's problem with his wife. He indicated to the doctor that he could arrange for his problems to disappear. Suspecting something untoward was happening, Dr Li reported the incident to the police.

4. On 28 December 1998, Dr Li received another call from the Applicant urging him to consider his proposal. Later on the same day, Dr Li telephoned the Applicant and asked the Applicant what he could do for him. The Applicant said he could arrange for a murder in the course of a robbery or a traffic accident with the doctor's wife as the victim. The plan could be carried out in Hong Kong or overseas and it would only cost the doctor several hundred thousand dollars. If the plan were to be carried out, the doctor would no longer have to bear the enormous legal fees incurred as well as the subsequent maintenance he had to pay to his wife. At the end of the conversation, the parties arranged to meet in a hotel in Kowloon the same evening.

5. At the meeting the Applicant introduced himself to Dr Li as Jacky Chan. In the ensuring conversation the Applicant also suggested various alternatives of administering or injecting poison on Dr Li's wife or to strangle her in the course of a staged robbery. He said it would cost the doctor $800,000, and an additional $250,000 if the job were to be carried out outside of Hong Kong. Dr Li told the Applicant that he wanted time to consider his proposal.

6. Unknown to the Applicant the police had mounted surveillance on the meeting between Dr Li and the Applicant. The doctor was in fact supplied with a tape recorder in order to tape the conversation between the Applicant and the doctor when they met. For reasons unknown, the tape recorder did not operate and no recordings were made of the conversation.

7. The Applicant was arrested by the police at the entrance of his office in Chai Wan very shortly after the meeting with Dr Li. He was cautioned and later interviewed by the police. Under caution, the Applicant admitted that he came to know about the divorce proceedings of Dr Li from the newspapers. He admitted having telephoned Dr Li and proposed to solve his problems with legal fees and maintenance payments to his former wife. He also admitted that he had suggested to the doctor to kill his wife by injecting her with poison or to arrange for a traffic accident. He had asked for $1 million as the price. He did not, however, mean to kill Dr Li's wife.

8. The admissibility of two cautioned statements was challenged by the defence on the grounds that the purported admissions were made under involuntary circumstances because both statements were obtained as a result of threats, inducements and assaults by the police. The admissions were not from the Applicant but were fabrications by the police. A vior dire was held and at the end of which the learned judge ruled that both statements were admissible as evidence at the trial.

9. The Applicant elected to give evidence. He denied speaking to Dr Li on the 24th and 28th of December. He arranged to meet the doctor in the hotel in Kowloon in the hope of borrowing money from the doctor to finance his advertising business which was in dire financial straits at the time. Over the course of conversation with Dr Li, he only made casual reference to his problems with his wife. He told the Court that in the evening of the 28th, two strangers visited him at his office and he had been assaulted by them. Subsequent to his arrest, and prior to the taking of the statements under caution, he was assaulted by the police. The part containing the admissions in the statements came not from him but from the police officer although he was forced to write them out and appended his signature at the end.

10. The learned trial judge rejected the Applicant's evidence and accepted the evidence of Dr Li and the prosecution witnesses. She found the contents of the statements were true and relied on them. The Applicant was convicted as charged.

The grounds of appeal

11. There are three grounds of appeal. The first two grounds related to the judge's approach in respect of the two cautioned statements. The third ground was that there was no evidence before the judge for her to conclude that the representation made by the Applicant was false.

12. On the first ground, the Applicant complained that no sufficient consideration was given by the judge to the fact that the medical findings were consistent with the Applicant's account of being assaulted by the police. According to the Applicant, he had been assaulted on three separate occasions. At about 9 p.m on 28 December 1998, he was assaulted by two strangers in his office and he received blows to his right chest and his abdomen. The second assault complained of took place in the Applicant's office after his arrest by the police. The police were alleged to have punched him on his chest, kicked at his back and kneed him at the side of his thigh and waist. During the time he was assaulted, he had his hands handcuffed at his back. The third alleged assault took place inside the police station prior to the first cautioned statement being taken. The Applicant said when he refused to write out a cautioned statement the police suddenly pushed the back of his neck and it was so sudden that his head rammed onto the table with considerable force thus causing his nose to bleed.

13. No less than four medical reports were produced at the trial. The Applicant was first examined by one Dr Mak at the Pamela Youde Nethersole Hospital on 29 December 1998. Dr Mak observed tenderness over right chest wall and no bruises.

14. After the alleged assault by the police which took place on 30 December 1998, the Applicant was examined on the following day on two separate occasions by doctors at the Queen Elizabeth Hospital. At 2:15 p.m., he was first examined by Dr Wong Po Po who detected an old abrasion over the Applicant's right wrist and mild old brownish bruises over both hands dorsum. There was tenderness without external wound over anterior chest, lower back and right hip.

15. Dr Gordon Wong, who examined the Applicant later on the same day, detected no external injuries and he noted tenderness in left upper chest and abdomen.

16. On 2 January 1997 when the Applicant was remanded at Lai Chi Kok Reception Centre, he was examined by Dr Kwong. The doctor detected brownish bruises over left axilla, left nipple and left wrist.

17. Mr Lawrence Lok, S.C., for the Applicant submitted that the injuries observed are consistent with the Applicant's account that he was assaulted by the police officers. Based on the medical reports before the learned Judge, she could not have found that the statements were voluntary.

18. The attacks described by the Applicant were severe, bordering on being vicious. In terms of magnitude, the alleged assaults were surprisingly incongruous with the injuries detected by the two doctors at the Queen Elizabeth Hospital. It was less than 36 hours after the alleged assaults by the police but all that the two doctor Wongs at Queen Elizabeth Hospital could find were an old abrasion and mild bruises on the Applicant's wrists and hands. No visible injuries were detected over the Applicant's chest or torso. There was simply no injury which was compatible in gravity with those that would have been inflicted if the alleged assaults by the two strangers or by the police did take place.

19. In the face of the irreconcilable evidence between the Applicant's account of the severity of the assault and the contents of the medical report, the trial judge, in our view rightly so, concluded that she did not believe the Applicant. The judge had considered the evidence of the vior dire in detail, and had resolved the material differences in the evidence. Based on the evidence before her, she was entitled to find that the two cautioned statements were voluntary. There is no substance in the criticism that she did not give sufficient consideration to the evidence before her.

20. The second ground of appeal relied upon by the Applicant was that the trial judge, having ruled that the two cautioned statements were voluntary, should have nevertheless exercised her discretion to exclude them as evidence. The reason being that the investigation was directed at the case of conspiracy to murder and not the charge of attempting to obtain property by deception which the Applicant was eventually charged with. Mr Lok submitted that any admission made under an investigation for attempt or conspiracy to murder should not be allowed in as evidence to support the present charge. The Applicant was prejudiced by the course taken by the police during the interview for not having cautioned the Applicant for the offence of deception for which he was subsequently charged.

21. This Court is of the view that the Applicant was arrested by the police as a result of a complaint by Dr Li. He was suspected of involvement in a scheme to murder Dr Li's wife and he was questioned for that. There was nothing to suggest that the police did not honestly believe that they were investigating a potential homicide case.

22. In the course of investigation by the police it is not uncommon for a suspect to admit to a lesser offence to avoid the more serious consequence of the offence for which he was being investigated. We would have found some force behind the argument if the Applicant was asked questions about events which are totally unrelated to Dr Li's complaint. There is, however, nothing during the interview that suggested the police had changed their direction of investigation. In fact from the content of the statements, the Applicant had not been asked by the investigating officer about matters not relating to the investigation of conspiracy to murder. The Applicant volunteered his information and reduced it into writing in his own hand without any prompting. It was a detailed explanation about his degree of involvement, or the lack of it, in the proposed scheme to murder.

23. In the second cautioned statement, the Applicant was only asked to identify the exhibits.

24. In her Reasons for Verdict, the learned Judge did address herself on whether she should exercise her discretion to exclude the statements. There was no evidence before the learned Judge to support the contention that if the statements were admitted, it would have caused grave injustice and unfairness to the Applicant. She was correct in deciding not to exercise her discretion in favour of the Applicant. The first and second grounds must fail.

25. The third and final ground of appeal was that there was no or no sufficient evidence before the trial judge to enable her to conclude that the representation by the Applicant to Dr Li was false. The representation particularised in the charge was that the Applicant would kill Dr Li's wife for the sum of $800,000. The prosecution had to prove its falsity.

26. When the suggestion was first made by the Applicant over the phone on 24 December, Dr Li must have taken it very seriously and hence the report to the police. During the meeting in the hotel, the Applicant took upon himself to confirm his offer. In the Applicant's first cautioned statement, he admitted that he had no intention to kill Dr Li's wife for a price. This must be evidence of the falsity of the representation he made to Dr Li in the hotel. In addition, he also admitted to the police that it was a ploy to talk Dr Li into lending him money in order to support his failing business. This must be, with respect to Mr Lok, evidence of the falsity of the representation as specified in the particulars of the offence. Once the learned Judge had accepted that the representation was untrue, she would have had sufficient evidence before her to find the charge proved.

27. Again, there is no substance to this ground and it must fail.

Appeal against sentence

28. The Applicant was sentenced to 2 1/2 years imprisonment. He was 45 years of age at the time of his conviction. He is a university graduate. There was one previous conviction for indecent assault in 1992 for which he was fined $500. This Court was told that the Applicant is the sole proprietor of an advertising company which he started in 1978. Prior to his committing the present offence, the company was in financial difficulties. This was the reason for his resorting to devising the scheme to obtain money from Dr Li. It was suggested since the victim did not suffer any actual financial loss nor is it a crime that involves any degree of violence, the trial Judge should have taken a more lenient view in respect of the term of imprisonment. The 2 1/2 year term, it was submitted, was manifestly excessive under the circumstances.

29. Suffice it for this Court to say that the points taken before us today had been also placed before the trial Judge in the Court below. She must have taken into consideration all these factors before she passed sentence. There are no guidelines for similar offences and the learned Judge commented :

"While it is true that the victim suffered no loss monetarily , it is also true that this is a hideous scheme, hatched by the Applicant to appeal to the basic instincts of man. He took advantage of the vulnerability of PW1 at an unhappy time in his life."

30. She took a starting point of three years and she treated this as the Applicant's first offence, having ignored his previous conviction for two indecent assaults, and reduced it by six months. We agree that it was, as the Judge had said, a hideous scheme devised by the Applicant with a view to capitalize on Dr Li's predicament.

31. We are of the view that the Judge had been somewhat lenient by giving a six-months discount from the starting point of three years. Having considered the background and circumstances of this offence, it cannot be said that the 2 1/2 year term was manifestly excessive.

32. Accordingly, for the reasons we have now given, the applications for leave to appeal against conviction and sentence were dismissed.