HKSAR v. MA HOI CHING AND OTHERS

CACC 134/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 134 OF 2003

(ON APPEAL FROM DCCC 619 OF 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. The six Applicants (D1 to D6) were convicted, following a trial in the District Court before Deputy Judge Andrew Ma, on a variety of charges arising from the somewhat unusual events, referred to by Mr Blanchflower, SC, on the Applicants' behalf, as "unique", which took place on 5 September 2001 at the offices of Great Expect Development Limited ("the Company") in Kowloon Bay. All of the Applicants were sentenced to terms of imprisonment against which they sought leave to appeal. At the conclusion of the proceedings on 18 July 2003, we dismissed all the applications. We now give our reasons for doing so.

2. In short, five employees (PW1-5) of the Company were suspected by the management to have stolen property belonging to the Company. The prosecution was able to prove that the Applicants and one other (D8) were, in various ways, responsible for the forcible detention of the employees who had come under suspicion. Having been detained, the suspects were then assaulted and threatened with a view to extracting confessions from them to their misdeeds.

3. D1, D2 and D4 were all convicted on charges 1, 6, 9, 13 and 18 of false imprisonment, separate charges having been preferred in respect of each of the five victims. D3 was convicted on three charges of false imprisonment (charges 6, 13 and 18). D5 was convicted on four of the charges of false imprisonment (charges 1, 6, 9 and 13). D6 (and D8 who received a suspended prison sentence and who has not sought leave to appeal) were each convicted on two of the charges of false imprisonment (charges 6 and 9).

4. In addition, on charges of assault with intent to cause victims to do acts they were not legally bound to do, (in effect, to secure involuntary confessions from the victims), contrary to sections 25 and 27 of the Crimes Ordinance, Cap.200, D1 was convicted on charge 7, D2 was convicted on charges 7, 11 and 19, and D5 and D6 were convicted on charge 11.

5. On allegations of criminal intimidation, contrary to sections 24(a)(i) and 27 of the Crimes Ordinance, D2 was convicted on charges 3, 8 and 20, and D4 was convicted on charges 5, 12 and 16.

6. Of the remaining assaults which were charged, D1 was convicted of the common assaults alleged in charges 2, 10 and 14, D2 was similarly convicted in charge 15 and of the assault occasioning actual bodily harm in charge 4, D3 was jointly convicted of the common assault in charge 15, and D4 was convicted of the common assault alleged in charge 17.

7. The judge found that D4 was the person who was "in command of the whole exercise" and that D4 together with D1 and D2 were in the most serious category of the offenders to have participated in these events. In an admirable summary of the evidence in general, and then against each of the Applicants individually, the judge set out the way in which the Applicants had detained the victims (PW1-5) having been led to believe by their team-leader, Luk Chin-ho (Luk) that they, together with Luk, had been stealing books and magazines belonging to the Company which they had then exchanged for cash for personal gain. The victims were detained on 5 September 2001 during the evening until late at night whilst the Applicants tried to obtain admissions from them about their alleged dishonest activities. Confessions were, as the judge expressed it, "beaten" out of four of the victims during the "seven to nine" hours they were kept at the Company's premises, albeit Mr Blanchflower argued that the forcible detention was more in the region of three to four hours. Mr Blanchflower did not take exception to the fact that confessions had been beaten out of the victims but it was emphasised that, following this, a number of hours were spent in what was termed a "video-recorded conference" when the victims were permitted to put forward exculpatory accounts in the relatively calm atmosphere which then prevailed.

8. The Company, which operated as a distribution agent of newspapers and magazines, employed D1 to D6 in managerial positions. D3, D5 and D6 were described as "mid-level employees", lower in rank to D1, D2 and D4.

9. Describing some of the ways in which the victims, suspected of stealing, were treated, the judge said:

"8. The victims were detained for 7 to 9 hours. In the course of the detention, the Defendants subjected the victims to tremendous amount of threats, which included chopping, hacking off arms and legs, and throwing down the building through the window. On more than one occasion, different victims were threatened to the effect that after being thrown down from the 7th floor, people outside would testify that the victims jumped down by themselves. At least one of the victims was severely assaulted. PW3 was assaulted by four Defendants (D1, D2, D5 and D6) who gave a total of about 20 blows and the violence continued until the victim agreed to make admissions. He was hospitalized for several days. The other victims received blows and kicks but the injuries were insignificant. All victims said they were very frightened and did not feel able to leave, though they wanted to.

9. Four victims were compelled to write out confessions. On the documents, the victims were asked to sign their names and their fingers were held by various Defendants to affix their thumb prints. Police have investigated into the case and despite those confessions, no charge was laid against any of the victims." (Appeal bundle pp.58-59)

The judge went on to say:

"This is not a case of over-zealousness in conducting internal investigation or, as the Defence described, a misguided attempt in seeking to find out the truth. The Defendants must have been fully aware of the facts that their acts of violence, threats and detention went far beyond the lawful limit. The confessions they secured, which were tendered to the police, might also influence any fair and proper investigations in any accusations against the victims and thus lead to injustice." (Appeal bundle p.59)

10. The judge took a starting point of eighteen months for each charge of false imprisonment and for the assaults with intent to cause acts to be done which he understandably regarded as the most serious of the offences with which he had to deal.

11. The judge considered that those in the most serious category for the purposes of sentencing were D1, D2 and D4. Again, in concise terms, the judge described the role and background of each of them. He said:

"13. D1 was responsible for the questioning of the victims. He slapped on the head of PW1, punched the neck and the head of PW3 and used a file of invoices to pat on the head of PW4. In order to get PW2 to admit to the allegation of theft, D1 punched his cheek. He was also involved in the false imprisonment of all victims.

14. He worked all his way from a printing technician to the position of manager at the time of the offences. Aged 44, married and has a son, D1 has a clear record.

15. D4 was the one in command of the whole exercise. In order to secure confessions from various witnesses, he threatened PW1, PW3 and PW4 to cause serious injuries by chopping, throwing one down the building and hacking off arms and legs respectively. D4, at one stage, lost his temper and insulted PW4 by using fingers to fork his chin and spitting on his face and mouth. The victims said they were very frightened. D4 was also involved in the false imprisonment of all victims.

16. D4, aged 40, was a salaried vice president of the Company. He is married and has several children. He had 2 previous convictions, i.e. criminal damage in 1980 and gambling in 1995.

17. D2 was convicted of 13 charges, 5 of which relating to violence. He punched on the right temporal of PW4; fisted PW1 causing abrasion and bruises on his chest; in order to obtain admissions, he assaulted PW2, PW3 and PW5. Apart from 5 counts of false imprisonment, D2 was also convicted of 3 counts of criminal intimidation. He threatened to throw PW1 and PW2 down the building and disallowed PW5 to leave the room which made her very frightened.

18. D2, aged 37, is married and has a young son. Like D1, he also worked from the very junior level to the position of manager. He has 3 previous convictions. In 1985, he was convicted of a charge of kidnapping and sentenced to training centre. In 2000, for a conviction of conspiracy to defraud, he was given a community service order." (Appeal bundle pp.60-62)

12. The judge kept in mind that these offences had not been committed with a view to personal gain on their part. He noted also that D1 had not previously been in any form of trouble and distinguished him on sentence by deducting three months from the overall sentence he would otherwise have received.

13. D1 received concurrent sentences of eighteen months for each offence of false imprisonment and eighteen months for the assault with intent to cause acts to be done, of which nine months were ordered to run consecutively, making twenty-seven months in all. For each of the common assaults, D1 received concurrent sentences of three months. D2 and D4 each received thirty months' imprisonment made up in a similar way to D1's sentences save that twelve months of D2's eighteen-month sentences for his assaults with intent to cause acts to be done were ordered to run consecutively to the terms imposed for false imprisonment. Similarly, with D4, the three offences of criminal intimidation were each visited by sentences of twelve months, but although concurrent in themselves these were ordered to run consecutively to the five concurrent terms of eighteen months imposed for false imprisonment.

14. The offenders which the judge put in a slightly less culpable category, in terms of the gravity of their offences, were D3, D5 and D6.

15. The brief description of their roles and background given by the judge was as follows:

"20. D3 is convicted of 3 counts of false imprisonment and one count of common assault. He kept guard of various victims and assaulted PW4 by punching his head and back. He is aged 26, single, and was promoted to the position of distribution officer in 2000. He has 2 previous convictions: On probation in 1991 for assault occasioning actual bodily harm; and a community service order for wounding in 1994.

21. D5 was convicted of 4 counts of false imprisonment and one count of assault with intent to cause acts to be done. He kept guard of the witnesses and assaulted PW3 in order to obtain a confession. D5 is an assistant distribution manager of the Company, aged 43, married and has 2 daughters. He has a clear record.

22. D6 is convicted of 2 counts of false imprisonment and one count of assault with intent to cause acts to be done. He was guarding PW2 and PW3, and joined other Defendants in assaulting PW3 until the victim agreed to make admissions. He is aged 35, single, an assistant manager of the Company. He has 2 previous convictions which include charges of criminal intimidation, claiming to be a member of a triad society and assault occasioning actual bodily harm.

23. Despite the difference in the numbers of charges convicted, the culpability of D3, D5 and D6 is the same. They remained in the Company throughout the period of detention, guarding and assaulting various victims. While they were only mid-level employees, having no personal gain, and must have been acting upon instructions given by the senior, the offences they committed were quite serious. The overall sentence for each of them should be one of 18 months imprisonment, which has already reflected the similar nature of the offences and that they were committed within the same period of time. D5 should receive a deduction of 3 months for his previous good character." (Appeal bundle pp.63-64)

16. Briefly, therefore, D3 and D6 each received eighteen-month sentences and D5 received a term of fifteen months' imprisonment.

17. The final and least serious category of offender related to D8 with whom we are not concerned. However, in view of the suspended sentence he received, it should be noted that he was, as a driver for the Company, the most junior of those involved and his role was, as the judge expressed it : "less significant and relatively minor in nature".

The application

18. Three grounds of appeal have been raised by Mr Blanchflower. He submitted that the sentences which were imposed were manifestly excessive, that because the judge paid insufficient regard to the "employer/employee context" in which the offences were committed he had failed to consider suspending the sentences, and that in the cases of D1, D2 and D4 the judge erred in passing partly consecutive sentences in a situation where all the offences had arisen from one incident and called for wholly concurrent sentences.

19. In advancing these grounds, Mr Blanchflower pointed to a mass of detail drawn from the transcripts of evidence none of which, with respect, demonstrated that the judge had failed to grasp any aspect of the evidence or had erred in his approach to the culpability of any of the Applicants. On the contrary, it served to confirm that the judge had fully understood the evidence and the gravity of the actions of each Applicant.

20. Mr Blanchflower particularly emphasised that none of the victims received any lasting or serious injuries including PW3 who was hospitalised for a number of days. The judge was well aware of this having himself made the enquiry during the evidence about the reason for PW3 remaining in hospital such a long time. He was assured by prosecuting counsel that it had been a "precautionary step".

21. It was submitted that because there is a general duty on persons holding responsible managerial positions to investigate business-related allegations into potential criminal offences, this provided some justification for the detention of the victims albeit it was accepted that this provided no excuse for what was done to them. Conversely, Mr Madigan, on behalf of the Respondent, in his written submission described the situation into which the victims suddenly found themselves embroiled as one which was totally unjustifiable, amounting to an abuse of power stemming from the Applicants' more senior positions in the Company. We have little difficulty in accepting the latter submission. It is also to be observed that whilst there was evidence that the Applicants intended to make a report of the alleged thefts to the police, supported by the evidence of the confessions they had extracted from the victims, this was done a day after the victims had complained to the police about their ordeal. The victims were duly arrested but no charges were brought against them.

22. In advancing the contention that, because all these offences arose from "one transaction taking place during one period at the same place", the imposition of consecutive sentences for D1, D2 and D4 was inappropriate, Mr Blanchflower submitted that the charge sheet could have contained a single charge of either false imprisonment or conspiracy to falsely imprison covering the whole of the criminality rather than the twenty offences which it specified. We consider that this was unrealistic. There was, on any view, good sense in the prosecution charging each Applicant with specific offences if for no other reason than to enable the trial judge to assess the culpability of the Applicants in accordance with what had been proved against each of them. Indeed, the course suggested by Mr Blanchflower could well, in the circumstances, have produced unfairness to one or more of the Applicants who were less culpable than D1, D2 and D4. In our opinion, the judge was not only entitled but was right to have added to the eighteen-month sentences he imposed for false imprisonment having regard to the aggravating circumstances created by some of the further offences on which D1, D2 and D4 were convicted.

23. In this regard, we found unhelpful the previous decision of this court in HKSAR v. Liu Chi-keung [1999] 2 HKC 235 with which Mr Blanchflower sought to support his argument. That was a case where there were nine counts of possessing equipment for making false instruments which were all couched in identical terms and where this court was able to say with confidence, in circumstances where all the equipment had been found at the same time and place, that: "plainly one charge could easily have been laid". In that appeal, there was obviously no proper basis, unlike the present case, for the imposition of consecutive sentences.

24. Plainly, in the light of the suggestion that the judge might not have given full consideration to sentences which would not immediately deprive the Applicants of their liberty, the judge was mindful of the possibility of imposing a suspended term of imprisonment because he took this course in D8's case. There were no special circumstances which could have justified such a disposal in any of the other cases.

Conclusion

25. We have concluded that these offences amounted to a serious example of the law being taken into unauthorized hands and that they merited the sentences which were imposed. It follows that we do not consider that any of the sentences were manifestly excessive.

26. Accordingly, these applications are dismissed.