HKSAR v. WONG MAN CHUNG

DCCC 193/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 193 OF 2012

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REASONS FOR VERDICT

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THE CHARGES

1.  The defendant was charged with and pleaded not guilty to the offences of (1) Blackmail[1] and (2) false imprisonment[2]. 

2.  A considerable part of the prosecution case was unchallenged.  Certain evidence was admitted by virtue of s 65C of the Criminal Procedure Ordinance, Cap 221 (Exh P-5).

3.  The prosecution called only 1 witness, who was the victim in both offences (“PW1”).  The prosecution case depends wholly on visual identification by PW1.  The defendant elected not to give evidence and called no witness. 

THE ISSUE

4.  The defence did not dispute that the incidents encountered by PW1 had actually occurred, and the only issue in this case is one of identity.  The defence alleged that the identification made by PW1 was mistaken.  When “identity” becomes an issue, the guidelines laid down by the Court of Appeal in R v Turnbull & Others [1977] QB 224 have to be observed.  This court takes special caution before considering any conviction of the defendant in reliance on the correctness of identification and is aware of the possibility that a mistaken witness can be a convincing one.

ELEMENT OF THE OFFENCES

(i) Blackmail

5.  Blackmail is committed when a person (i) make any unwarranted demand (ii) with menaces (iii) with a view to gain for himself or another or with intent to cause loss to another.

(ii) False imprisonment

6.  Archbold in Hong Kong 2012, 20-355 stated:-

“False imprisonment is a common law offence. It consists of the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place.”

7.  The defence accepted what the 2 culprits whom PW1 met at Shun Tak Centre on 1 August 2011 had done to PW1. Such evidence if accepted by the court would have amounted to blackmail and false imprisonment of PW1. Although no issue was taken by the defence, it is the duty of the prosecution to prove the elements of each offence beyond all reasonable doubt.

EVIDENCE OF THE PROSECUTION

(i) Background and at Macau

8.  PW1 went to Macau with a friend on the night of 31 July 2011.  They eventually went to a casino where PW1 was persuaded to apply for a membership which would give him, among other things, HK$1,000 free mud chips for gambling.

9.  PW1 provided personal information for the membership and gambled.  Despite PW1’s refusal to continue to gamble after he lost the free HK$1,000 mud chips, 2 males stopped him from leaving. They gambled and lost further HK$9,000 chips purportedly on PW1’s behalf.  PW1 was then asked to repay HK$10,000 but he objected.  After negotiation PW1 unwillingly agreed to repay HK$9,000.  He was then given a ferry ticket at about 6 am on 1 August 2011 and returned to Hong Kong alone.

(ii) Shun Tak Centre, Hong Kong

10.  Shortly after arriving at Shun Tak Centre through the Macau Ferry Terminal at 7.42 am on 1 August 2011, PW1 was “held up” by the defendant and another male (“B”) inside Shun Tak Centre.

11.  The defendant was standing very close to and was guarding PW1 when B put his arm on PW1’s shoulder and told PW1 not to go or else he will be beaten up.  PW1 was very scared and felt apprehended fear of the threat.  He was then “sandwiched” by them and was escorted to board a taxi to Mongkok.  It was undisputed that PW1’s freedom of movement was unlawfully and intentionally restrained by the two culprits against PW1’s will.

(iii) Nam Fung Restaurant, Mongkok

12.  Later, they arrived at Nam Fung Restaurant, Mongkok.  After talking over the phone, the defendant demanded a sum of HK$39,000 from PW1.  He warned PW1 that if he refused to pay, he would be beaten up or phone calls will be made to his home to disturb his family.  As a result of what he said, PW1 was scared and felt apprehended fear of the threats.  The defendant wrote down the personal particulars of PW1 and his family.  It was undisputed that this was an unwarranted demand made by ‘the defendant’ with menaces with a view to gain for himself or another or with intent to cause loss to another.

(iv) PW1’s home, Shek Kip Mei

13.  Afterwards, PW1 was escorted by the defendant and B to PW1’s home.  B waited downstairs while the defendant went up with PW1 and waited outside PW1’s home.  PW1 handed HK$23,000 cash to the defendant.  The defendant took the money and further demanded HK$16,000 from PW1.  The defendant consulted a Boss Chan through mobile phone and then demanded PW1 to make payment of the HK$16,000 by 4 instalments.  The defendant then wrote an IOU note (Exh P-2) on a piece of paper and asked PW1 to sign on it.  PW1 did it accordingly.

(v) Nga Tsin Long Road, Kowloon City

14.  PW1 was then brought to Nga Tsin Long Road in Kowloon City by the defendant and B and they loitered around there for about 2 hours, during which the defendant demanded PW1 to pay all outstanding amount of HK$16,000 and PW1 thus requested his father to deposit HK$8,000 into his account.  As instructed, PW1 withdrew HK$8,000 cash through an ATM from his bank account at about 1353 hours and paid over the same to the defendant.

15.  PW1 expressed his intention to leave as it was agreed that the balance of the sum of HK$39,000 were to be repaid by instalments.  However, PW1 was not allowed to leave and was being “sandwiched” by the defendant and B again.  The defendant warned PW1 not to leave or play trick, otherwise he would go to his work place to look for him and tell all other people about that matter, so that PW1 would lose his job. PW1 was made known of the consequence and he unwillingly stayed.  It was undisputed that PW1’s freedom of movement was again unlawfully and intentionally restrained by the two culprits against his will.

(vi) Hui Lau Shan Dessert House

16.  The defendant further asked PW1 to borrow money to pay for the balance, but he refused.  PW1 was then brought to a dessert restaurant called “Hui Lau Shan” at Nga Tsin Long Road.  Inside Hui Lau Shan, the defendant called Boss Chan again and then told PW1 that the outstanding amount could be settled on the following day.  The defendant then wrote two IOU notes (Exhs P-3 and P-4) with almost identical contents.  Exh P-3 was kept by the defendant while the other was given to PW1.  The defendant also provided an account number with a name “SIU” written on the back of Exh P-4.  He then asked PW1 to credit HK$8,000 into that account and to call the phone number 95283514 written on both Exhs P-3 and P-4 after depositing the sum.  Having signed on the IOU note, PW1 was finally allowed to leave.

(vii) 2 August 2011, the next day

17.  PW1 did as instructed, he transferred HK$8,000 to the designated account on the following day as demanded (the deposit advice was marked as Exh P-1).  Such sum was withdrawn from the same account by way of an ATM withdrawal on the same day.  In the evening of the same day PW1 found Exhs P-2 and P-3 in his mail box.

(viii) Arrest of the defendant

18.  The defendant was arrested and cautioned for the offence of false imprisonment on 28 December 2011.  It is agreed that the defendant was in Hong Kong between 9 July 2011 and 9 August 2011.

(ix) Identification parade

19.  On 4 January 2012, the defendant willingly took part in an identification parade held in the South Police Headquarters.  He took the position number 5.  PW1 viewed the parade for about 4 minutes and stated “Number 5”.  Having further viewed the parade for about another 1 minute he reiterated and stated “Number 5”.

20.  On the same day, PW1 attended another identification parade in relation to a “lending money at an excessive rate” case.  Nevertheless, PW1 failed to identify the suspect from that parade, as he pointed out an actor as male B.

(x) Handwriting comparison

21.  The police obtained three IOU notes (Exhs P-2, P-3 and P-4) from PW1.  On 9 January 2012, the defendant provided 3 sets of handwriting control in the contents of the said three IOU notes in a video-recorded interview, for the purpose of handwriting comparision.

22.  Upon examination by the Government Chemist Dr Hui Wing Sze Janesse, it was concluded that “in the absence of contemporaneous control handwriting written by the defendant during his normal course of business, Exhs P-2 to P-4 may not have been written by the defendant”.

THE DEFENCE CONTENTION

23.  The defence requested this court to consider the quality of PW1’s identification evidence of the defendant.  In particular, the following three aspects in the prosecution’s evidence:

(i) The absence of tattoo on the defendant.

(ii) The identification parades held on 4 January 2012.

(iii) The handwritings on the three IOU notes (Exhs P-2, P-3 and P-4).

(i) The absence of tattoo on the defendant

24.  PW1 told the court that during the time when he was together with the defendant, he was able to see a tattoo on his left upper arm.  In the course of the trial, PW1 when invited to look at the defendant’s left upper arm, confirmed that there was no tattoo there.  As there was no evidence to suggest that the tattoo was a permanent one, the defence contented that it was possible that the defendant wears no tattoo at any time.

(ii) The identification parades

25.  PW1 was invited to attend the two identification parades held on 4 January 2012.  The defence pointed out that although PW1 had identified the defendant in the parade, he had misidentified an actor to be male B in another parade.

26.  It was submitted on behalf of the defence that PW1 was together with both culprits under identical circumstances for 6 hours, the incorrect identification of male B must have cast doubt on the reliability of PW1’s identification of the defendant, especially 5 months have lapsed after the identification parade had subsequently been held.

(iii) The handwritings on the three IOU notes

27.  The defence contented that: although the finding by Dr HUI could hardly be viewed as conclusive evidence, the same is capable of creating a possibility the defendant was misidentified.

28.  It was submitted by the defence that, the three aforesaid circumstances when put together would indicate that PW1 could have made a mistaken identification at the said identification parade in which the defendant took part and hence created doubt as to the identification made by PW1.

COURT’S OBSERVATION AND FINDING ON TATTOO ON THE CULPRIT

29.  PW1 testified that during the time when he was together with the defendant, he observed that the defendant had a tattoo on his left upper arm, but he did not have a chance to find out nor was he able to tell if the tattoo was a permanent one.

30.  After being invited to look at the defendant’s left upper arm in the course of the trial, PW1 confirmed that there was no tattoo there.

31.  It is undisputed and noted by this court that tattoo may be either permanent or impermanent one.  Such feature has not been relied upon by PW1 to make his identification of the defendant, both at the identification parade and at court.  The existence of such feature was hence inconclusive.  The presence or absence of the tattoo on a culprit may not necessarily have proved or disproved the case one way or the other under these circumstances.

COURT’S FINDING ON EVIDENCE OF HANDWRITING

32.  PW1 testified that he witnessed the defendant writing out the three IOU notes (Exhs P-2, P-3 and P-4) on 1 August 2011.

33.  Subsequently, after the arrest and in an video-recorded interview, the defendant provided 3 sets of handwriting control (Exhs D-1, D-2 and D-3) in the contents of the said three IOU notes on 9 January 2012.  Both IOU notes and the 3 sets of handwriting control were then sent for handwriting comparison by Dr Hui of the government laboratory.

34.  As a result, the conclusion made by Dr Hui was that “in the absence of contemporaneous control handwriting written by the defendant during his normal course of business, that P2 to P4 may not have been written by the defendant”.

35.  Dr Hui was not called to testify nor be cross-examined.  Both the prosecution and the defence agreed to put in her aforesaid conclusion by way of Admitted Facts (Exh P-5) under section 65C of the Criminal Procedure Ordinance.

36.  This court will not rely on nor attach weight to such conclusion which was in fact inconclusive. 

COURT’S FINDING ON ELEMENTS OF OFFENCES

37.  The defence did not dispute that the incident encountered by PW1 had actually occurred.  This court accepts the evidence of PW1 in these aspects.

COURT’S OBSERVATION AND FINDINGS ON IDENTIFICATION EVIDENCE

38.  This court has to observe the guidelines laid down in R v Turnbull & Others and to examine closely the circumstances in which the identification by PW1 came to be made.

(i) Shun Tak Centre

39.  PW1 saw the defendant and B for the first time at about 7:42 am on 1 August 2011 in Shun Tak Centre.  At that time the lighting condition was good with sunlight and indoor lighting.  PW1 was wearing his glasses and he was able to see both of them clearly.  It was the defendant who called out PW1’s full name and caught his attention.  PW1 spent about 10 minutes there with them.  The distance between the 2 culprits and PW1 was short and nothing impeded PW1’s sight of them.

40.  The defendant and B then physically “sandwiched” PW1 and walked with him to board a taxi. 

(ii) Inside the taxi

41.  Inside the taxi from Shun Tak Centre to Mongkok, PW1 noticed that it was the defendant who told the taxi driver where to go and eventually paid the taxi fare.

(iii) Nam Fung Restaurant

42.  The lighting condition in Nam Fung Restaurant was good and bright.  The defendant was sitting opposite to but facing PW1 in a 4-person table.  The distance between them was about 1 metre whereas B was sitting beside PW1 on his right.  They spent 2.5 hours there, during which, numerous conversations took place between the defendant and PW1 including the defendant questioning him and making unwarranted demand with menaces on him.  PW1 looked at the defendant while the defendant was speaking. PW1 also noticed the defendant making phone calls to ‘Boss Chan’, alleging that a debt of HK$39,000 was owed by PW1.  He watched the defendant writing down his personal particulars upon questioning him.

(iv) PW1’s home at Shek Kip Mei

43.  At PW1’s home, B waited downstairs while the defendant went up with PW1 and then waited at the doorway outside PW1’s flat.

44.  At the same location, PW1 handed the defendant HK$23,000 cash.  The defendant wrote out Exh P-2 in PW1’s presence and asked PW1 to sign on it.  This encounter lasted about 5 to 10 minutes. That particular location was at a ventilation opening with sufficient sunlight to cater for a good vision.  PW1 had his focus on the defendant while the defendant was speaking to him and writing out Exh P-2.  He also noticed the defendant talking to Boss Chan, on the phone.

(v) At Kowloon City

45.  The 2 culprits ‘sandwiched’ PW1 and walked with him around Nga Tsin Long Road in Kowloon City for about 2 hours.

46.  It was the defendant who had various conversations with PW1 during the course, including asking PW1 to withdraw money from ATM, threatening PW1 not to leave or play tricks, and also asking PW1 to borrow money to settle the sum.  PW1 paid attention to the defendant during these conversations.  PW1 withdrew HK$8,000 from the ATM as instructed and handed the money to the defendant.

47.  At that time, the weather was good and bright.  PW1’s view at the defendant was not impeded.

(vi) At Hui Lau Shan

48.  In Hui Lau Shan, the defendant sat opposite to PW1 facing him whereas B was on PW1’s right.  The lighting condition there was good.  They spent 15 to 20 minutes there, during which PW1 noticed the defendant talking to Boss Chan on the phone.

49.  It was the defendant who had conversations with PW1.  PW1 watched the defendant writing out two IOU notes (Exhs P-3 and P-4) and then asked him to sign on it.  PW1 paid attention to the defendant when the defendant spoke.

(vii) Identification parade

50.  The defendant was positively identified by PW1 in an identification parade held on 4 January 2012.  It is noted by the court that such parade was held 5 months later and that in a separate identification parade, PW1 picked out a volunteer who was wrongly identified as the male ‘B’.

51.  PW1 had spent about 6 hours with the two culprits on 1 August 2011.  As compared with the defendant, the involvement of B in the incident was much less, his position at various places was only by PW1’s side and not directly facing PW1.  Nothing much was said by B, after they left Shun Tak Centre.  There was very little interaction between PW1 and B.

52.  PW1’s evidence revealed that it was the defendant who mainly took part in numerous conversations with him on the day in question.  He paid attention to the defendant, especially to his face during conversations.  PW1 has therefore a much deeper impression of the defendant.

53.  PW1 had not only conversed with the defendant on many occasions face to face, but he had also observed the defendant speaking to Boss Chan on the phone on various occasions, and writing out the IOU notes.  PW1 stressed that he focused his attention on the defendant’s face. Moreover, he had many opportunities to observe the defendant with sufficient lighting, long duration, and at close range for a considerable period of time, he could therefore particularly recognize the defendant.

54.  PW1 gave a very clear account of the incidents, his evidence was straight forward and consistent.  He was unshaken under cross-examination.  He is an honest, trustworthy and reliable witness. This court accepts his evidence to be credible and truthful.  It is noted the defendant took a leading and active role in the incidents.  PW1’s encounters and interactions with the defendant were all done at close range, with good visibility and full face view and under unimpeded observation for long period of time.  This court fully accepts that PW1 had a much deeper impression of the defendant as compared with his impression of B and hence resulting in a wrongful identification of male B in the identification parade. 

55.  Having considered all the circumstances under which PW1 had made his observations and identification, this court considers the quality of the identification evidence concerning the defendant was good, reliable and correct, and gives full weight to it.

CONCLUSION

56.  The prosecution has proved its case beyond all reasonable doubt.  The defendant is convicted of both offences as charged.