THE QUEEN v. SHIU KWOK KWAN AND OTHERS

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J U D G M E N T

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Silke, V.-P. :

1. Four accused were convicted. before Hopkinson J. and a jury upon an indictment containing a single count conspiracy to forcibly detain a person with intent to procure a ransom for his liberation, contrary' to Common and section 42 of the Offences against the Person Ordinance the Person Ordinance, Cap. 212.

2. Shiu Kwok Kwan - "Dl" - was sentenced to 8 years' Imprisonment; Tang Hoi Hing - "D2" - was sentenced to 5 years' imprisonment; Choi Kwong Sang - "D3" - was sentenced to 6 years' imprisonment; Poon Fun Sai - "D4" - was sentenced to 8 years' Imprisonment.

3. D1 and D4 now seek leave to appeal against conviction and have abandoned applications for leave in respect of sentence. D2 and D3 have abandoned applications for leave to appeal against conviction and now seek leave only to appeal against sentence.

4. On 16th October 1986 a police party was keeping a watch upon a van in a car park at the Square at Yuen Long. They saw two men each wearing white gloves acting in a suspicious manner. The men got in, starting the engine without the use of the key. The police advanced and the two men, later identified as D1 and n2, were arrested. In the van was found a screw-driver, some false number plates, two vehicle licences, a bag with an adhesive roll, electric wire, wire cutters, three pairs of white gloves and wire was found on the floor Curtaining had been put up on the rear side windows.

5. As a result of that which was said at the scene and later in the police station D3 and D4 were arrested on the following day. A man named Wong Lap Keung, known as "AH Keung" was also arrested. In the course of the trial, Wong, under immunity, gave evidence implicating the other four. D2 and D3 had made inculpatory cautioned statements. D1 and D4 had made no such statements.

6. It was .the Crown's case that an approach was made by D1 to Wong and an appointment was made that they should have tea. They met D1 asked Wong if he' wanted Co have a decent job or did he want to do some "shady business". The nature of the business was not discussed and when they finished their tea, they separated D1 contacted Wong again in September of 1986. The two met in a cafe. In the course of that meeting, D1 introduced D4 to Wong saying that D4" would tell them of a way to make money. The idea was to kidnap a woman. D4 had been employed as the woman's driver at one time. The three set off on a Journey to a village where a signpost was pointed out by D4 indicating the company for which he had previously worked. They waited around for a few hours to see if their intended victim would appear but she did not. The purpose of the visit was for identification. The three returned to Yuen Long and went their separate ways.

7. About two days later, Dl made a further appointment with Wong. When he met D1, D4 was present and they used a car, of which D1 was the driver, to go to a spot and to try again to identify their intended victim. A woman appeared and D4 identified her. They went to So Kwun Put in Tuen Mun. There they drove around and, somewhere near a water catchment, saw a stone house. D4 said that that would be the place to be used to keen the woman.

8. A further two days later Wong met D1 by appointment. D4 was also there. They had a vehicle this time being driven by D4. They went to a car renting company where D4 rented a car. Travelling in the rented car they went to keep observation this time intending to translate their observation into action. They waited for some time but the woman did not appear.

9. In early October Dl together with D4 came to the garage where Wong was working. The proposed kidnapping was discussed. Wong said he did not wish to go on with it but D4 said that he had lost a lot of money in gambling and asked Wong to give him a helping land. Wong was persuaded. He was to steal a car.

10. On 16th October, Dl with two other men came to see Wong. One of those was named "Wu So Chai" and the other "Choi Kwong Sang". Wong identified Wu So Choi as D2 and Choi as D3. There was a further discussion of the proposed kidnapping. The four travelled in a car to the To Choi Yuen Village in Sheung Shui where Wong stole a dual purpose vehicle. He prized open, the window and started it tip with a screw driver. He drove alone to his home and there the other three joined him later. Dl told Wong to dismantle the burglary device in the van and also to alter the sofa seats.

11. It was that vehicle in which the police arrested the Dl and D2 when they were in the car park at Yuen Long. The intended ransom demand was to be $3 million.

12. None of the defendants gave evidence at trial. Wong's position as an accomplice, his previous convictions, his self-implication in the conspiracy and the immunity granted to him were left clearly and fairly to the jury. They were warned of the need for corroboration.

13. The first ground of appeal argued on their behalf by Mr. Howard, with him Mr. Hagon (Mr. Hagon having appeared at trial), was that the trial judge's directions, on corroboration were wrong in that he had failed, to direct the jury that corroborative evidence in respect of D2 and D3 could not he taken as corroboration of the accomplice evidence in respect of D1 and D4.

14. The jury would have been entitled to use the presence and arrest of D1 on 16th October as going some way tending to confirm the evidence of Wong in respect of him and of being evidence independent of Wong implicating Dl in the conspiracy. There was nothing at all to so corroborate in respect of D4. The statements made by D2 and D3 were, if the jury so accepted them, capable of corroborating the evidence of Wong implicating them. This ground is bound up, and was argued with, the second and main ground which was that the trial judge throughout the summing up made unfair and improper comments and incorrect statements of fact which, taken as a whole were sufficient to make the convictions unsafe and unsatisfactory. Of this ground 18 particulars were given.

15. It is not Mr. Howard's contention that the judge left anything out in his summing up which should have been there. However, he says that the matter was put to the jury in such a muddled way that they must have been left in confusion He does not seek to take the individual matters to which he has referred out of context of the generality of the summing up and he readily accepts that any one of the matters particularised in itself, would not be sufficient to get him home. It is the cumulative effect of the all which makes the summing up unfair.

16. He complains that the judge's repetition of a reference by counsel to the police knowing more than they said when waiting in the Square at Yuen Long that the judge's use of the analogy of an alibi when directing on the onus of proof and his somewhat esoteric illustration of a conspiracy by reference to the Gun Powder Plot must all have tended to confuse the jury.

17. When the judge said the plan was to keep the woman in confinement and to procure a ransom of $3 million, he was, suggests Mr. Howard preempting the jury's function by inviting them to accept the evidence of Wong.

18. When the judge made reference to there being, evidence that all the defendants were doing things together, going to places together, stealing a vehicle or waiting together in the van at Tuen Mun Mr. Howard's contends that as none of this could have referred to D4 who had done none of those things the judge's direction amounted to a material factual misdirection.

19. These passages in the summing up are ones which could have been better phrased or better devised but we do not think that, viewing the summing up overall and bearing in mind the clear direction that D4 made no admissions they were so material as to create sufficient prejudice such as to cause us concern. That also applies to a minor factual misdirection in the passage at page 14 where the judge, in starting his directions on the statements, made reference to statements being, made by D2, D3 and by D1. It would have been preferable had the judge made it clear at that time that the statemets of D1 did not implicate him. But any misstatement there was was cured at a later stage in the summing up when the jury was told in unmistakable terms that D1 had made no admissions.

20. One matter complained of is that, in a lengthy direction which took up three pages of the summing up, the judge made reference to the contents of the statements of D2 and D3 and that which they said as to the roles played by D1 and D4 while he did inform the jury that neither D1 nor D4 had made admissions of kidnapping he did not explicitly go on to tell them at that time that anything said by D2 or D3 could in no way he held against D1 or D4. This has importance in relation to the issue of corroboration.

21. A clear warning had been earlier given of the danger of convictions on the uncorroborated evidence of an accomplice and further that separate corroboration was required in respect of each of the defendants.

22. Having directed the jury that the credibility of Wong was at the heart of the case the judge, a few passages later said to them (p.15):

"Secondly, which I have kept trying to remind you of, is the fundamental principle that statements made by one accused only apply to him, in respect of him made they^, are not admissible in respect of any other defendants (sic) and that applies whether the statement is written or oral:"

23. A judge is not obliged to repeat such general directions at intervals throughout his summing up. The jury must, be given credit for common sense and to have heard and borne in mind that which the judge tells them is the law.

24. It was next suggested that the judge had belittled Wong's previous convictions in such a way as to derogate from the nature of the witness. While the phraseology chosen was not the happiest we have no doubt that the jury had Wong's shortcomings fully in mind.

25. Complaint is made of a passage appearing at page 25 when the judge was continuing to deal with the evidence of Wong and where, having asked the jury did his story sound a probable ones went on:

"    It does, on the one hand, see to fit in with the various admissions in the 2nd and 3rd accused's statements. It seems to be consistent with the opening, Crown Counsel's opening statement to you. and, in fact, the general details of his statement have not been challenged. I think Mr. Hagon talked about counsel's duty being to test the prosecution evidence. Well the individual details - the main details of the accomplice's evidence haven't really been probed or tested and his story virtually remains uncontradicted.

    However, he was not even questioned by Messrs. Stevenson or Souyave in connection with what he says about the 2nd or 3rd accused and, as regards what he said - and .as regards the 1st and 4th accused, he did, as far as I can see, reject the allegations by Miss Kwan and Mr. Hagon categorical."

26. Mr. Howard says that this, taken in conjunction with the earlier lack of direction on the applicability of the statements of D2 and D3 to D1 and D4 was most unfair. The evidence of Wong had been challenged in cross-examination. A  judge should not impliedly force an accused to go into the witness box.

27. The trial judge does appear to have confused in this direction whatever it as that counsel for the Crown said in opening with the evidence given by Wong Further Wong was confronted in cross-examination with allegations, which he denied, that he had made the story up. Miss Kwan in particular she appeared for D1 at trial, drew this to the judge's attention after the summing up had concluded. The judge then directed the jury that he might have been wrong in saying that she had not challenged Wong as strongly as she did.

28. Complaint is also made of the judge's comments at pave 29 of the summing up where he stated that it was the prosecutions the that D1 was the instigator and prime mover of the conspiracy. On the face of the evidence this was inaccurate though not wholly wrong. The prosecution evidence if believed showed that D1 had played a major part in the initial agreement and that he had acted as an introducer of others into the conspiracy. One of the difficulties we faced on this aspect is that we do not know, and counsel were unable to assist us, how the Crown opened its case. But that is to an extent by the way, for the evidence itself did not fully justify that which the judge saw fit to say.

29. Of the other matters to which Mr. Howard has drawn our attention we think it only necessary to say that while some of the comments made by the trial judge might have been better left, unsaid the evidence, uncontradicted by any other evidence, of the existence of tfie conspiracy and of its attempted implementation was very strong. Strong evidence can justify strong comment. On this we do not think that which the trial judge said to have been of so prejudicial a nature as to he unfair or to cause the jury to come to a wrong conclusion.

30. As Mr. Howard indicated at the outset of his submissions that he did not rely on any single one of the matters, upon which he had submitted as being sufficient of themselves to make the convictions unsafe or unsatisfactory.

31. We have considered with care his address to us which, loses nothing of its force through the economy of its delivery. Bearing in mind the nature of the evidence in the the Court below and the fact that the Applicants, as they were entitled to, exercised their right to remain silent, there was left for consideration of the jury only the prosecution's evidence. Upon that they were entitled to come to the verdicts which they did. We do not consider any of the matters advanced to us to have caused a miscarriage of justice such as to warrant our interference. In the' event, the applications in respect of leave to appeal against conviction are refused.

Sentence

32. We refused the application by D2 and 63 for leave to appeal ,against sentence. We stated that we would give our reasons later. This we now do.

D2

33. D2 at trial, Tang Hoi Ming, received a sentence of 5 years' imprisonment. We accept that he came into the conspiracy after it had been in being for some time. He had helped to adapt the van and his job was to act as a muscle man in the kidnap itself. It has been suggested to us that there are three stages in descending order of severity in an offence of this nature : (1) an actual kidnaping; (2) an attempt at kidnaping; and (3) conspiracy to kidnap. While the maximum sentence contained in the legislation is one of life imprisonment, and this applicable to all three of those stages, nevertheless, we should consider that which took place here as the least serious. No one was actually put in fear and, because it was never carried out, there can he no aggravating features.

34. It has also been suggested to us that while D2 later contested the statement he made upon arrest, nevertheless, its contents must have been of considerable assistance to the police in the course of their  investigations. He is aged 18 but the trial judge did not consider it necessary to call for any background reports. At the request of counsel we did ask for such reports to assist us and have considered them. Mr. Forrest has submitted that this would he a Proper case, in the light of D2's background and of his lesser role in the offence, for rehabilitation, by which he means. a Training Centre Order. This he suggests would be of most benefit both to the Applicant and to Society generally.

35. While giving careful consideration to the submissions made by Mr. Forrest, we do not think that the course he suggests would be the proper one to take here. Conspiracy to kidnap is an offence of considerable gravity and we think that the circumstances of this case dictated that a custodial sentence was inevitable. We did not consider the five years imposed here to he in any way excessive. The application was refused.

D3

36. D3 (Choi Kwong Sang), aged 20, was sentenced to a period of 5 years imprisonment.' Mr. Ford, who appeared on his behalf, adopted the general submissions of Mr. Forrest in relation to D3's late appearance on the scene, the part he played, that this was conspiracy and the absence of aggravating factors.

37. In the course of his statements to the police, the Applicant had made reference to his being under threat to continue in the conspiracy. A threat which was extended, according, to him to his family. The statement was contested. It was suggested it was fabricated. In those circumstances it would be difficult for counsel to urge the sentencing judge, after the jury had accepted that the admissions in the statement were true, that he should have in mind, on the "view most favourable to the accused" basis, that duress existed when this was not supported by direct evidence.

38. While a contested statement of this nature may well be thought to he before the Court for all purposes, and the trial judge had directed the jury to look at it overall, we take the view that the trial judge was, in the circumstances here, entitled to ignore those parts of the statement which tended to be exculpatory when he came to sentence.

39. We do not think that this Court should now consider the issue of duress. It was a matter within the trial. It was necessary, if it were desired to rely upon it for the purposes of sentencing, to hold a trial on issue. In the context of this case we did not find it surprising that no application in this regard was made. We did not consider ourselves in a position to give that factor value.

40. The quantum of the sentence is in no way excessive. The application for leave to appeal against sentence was refused.