HKSAR v. CHAU IU FAI AND OTHERS

CACC146/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.146 OF 2003

(ON APPEAL FROM DCCC1168 OF 2002)

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J U D G M E N T

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Lunn J (giving the judgment of the Court) :

1. The applicants seek leave to appeal against their convictions after trial in the District Court by Judge Yuen. All the applicants were convicted of one charge of false imprisonment, contrary to common law and one charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap.210 and, in the case of the 1st, 4th and 5th defendants at the trial, a charge of assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap.212. In this judgment references to the applicants will be made by reference to their numerical destination as defendants at the trial.

The prosecution case

2. Ng Ping Tim (PW1) testified that, as a result of borrowing money, he was in debt to the 1st defendant in an amount he would not disclose. On the late morning of 8 May 2002 he was at a table in the Regent Restaurant in Hung Hom with his wife and a relative. Having noticed the erstwhile 2nd defendant, the sister of the 1st defendant, at a nearby table he joined her and discussed his current financial circumstances. She made a telephone call. They were then joined by the 4th and 5th defendants, who told him to go downstairs because the 1st defendant wished to talk to him. PW1 declined to do so. The 3rd defendant joined the table and PW1 was told that if he did not go downstairs he would be hit. Although not willing to do so, in those circumstances, he went downstairs accompanied by the four of them.

3. Madam Yuen Wai Fan (PW3), the wife of PW1, testified that she had become suspicious at the arrival of the two men who joined the table to which her husband had gone. As a result, she went downstairs to telephone him. There her suspicions were heightened when she observed a Mercedes Benz parked illegally in a restricted area. She took note of the number and telephoned her husband. She asked whether she should call the police. He assented. As a result she dialled '999'.

4. When PW1 reached the street downstairs he saw the 1st defendant near to a parked Mercedes Benz, which he was forced to board by the 4th and 5th defendants. Whilst in the stationary car the 4th and 5th defendants struck him blows with their fists to his head. Those assaults continued after the car was driven off.

5. The journey ended at a quiet location next to a café in Sai Kung. Having alighted from the vehicle, PW1 asked what was wanted of him and asked to leave. In response, the 4th and 5th defendants assaulted him again. Whilst seated in the otherwise unoccupied café, PW1 was assaulted again by the 4th and 5th defendants. On the intervention of the former 2nd defendant, those assaults stopped. The 1st defendant demanded of PW1 that he repay him $250,000 that day. The 3rd defendant said that PW1 could be driven to the Mainland.

6. PW1 was permitted to use his mobile telephone to call his wife in order to try to raise the money demanded. His wife was at that time in the company of police officers. On one occasion the 1st defendant spoke to his wife on the telephone and demanded the payment of that money. There were many telephone conversations between PW1 and his wife, during some of which he was assaulted by the 4th and 5th defendants.

7. There came a time when the whole group moved to a nearby Thai restaurant, The Country Inn. That was a place familiar to PW1 as he had visited it with his wife. In a conversation with his wife on the mobile phone he was able to pass a hint as to its location. As a result, when the party was making its way back to the first café, they were intercepted by police officers.

8. Evidence was led from a Dr Ching Wai Chi (PW2) of injuries found to PW1 on an examination conducted by the doctor on 8 May 2002. PW1 was found to have abrasions on his forehead, left arm and both knees, and bruises and swelling over the right forearm, left index finger and the right side of his face. They were consistent with blunt trauma.

The defence case

9. Of the defendants, only the 4th defendant testified at trial. He said that he and the other male defendants had gone to the vicinity of the Regent Restaurant in Hung Hom in the Mercedes Benz car at the suggestion of the 1st defendant after he had received a telephone call. He agreed that he and the 5th defendant had joined the 2nd defendant and PW1 at a table in the restaurant. He denied that the 3rd defendant joined them at the table. At the suggestion of PW1, they left the restaurant and downstairs met the 1st and 3rd defendants. PW1 and the 1st defendant spoke about a debt. It was PW1 who suggested going to Sai Kung, where he had friends and cheques could be honoured. He denied that PW1 had been threatened in the restaurant or assaulted in the car, whilst stationary or whilst moving.

10. All the defendants and PW1 travelled in the vehicle to Sai Kung where it arrived at the café. They waited there for the arrival of PW1's friend. When that did not occur after a wait of over an hour, he and PW1 began a quarrel which resulted in a fight between the two of them. Blows were struck and they fell to the ground. That is how PW1 sustained his injuries. On the intervention of the 1st defendant, the fighting ended and the party adjourned to the nearby Thai Country Inn restaurant for a meal.

11. He denied that he and the 5th defendant had assaulted PW1 whilst at Sai Kung and denied hearing a threat made to PW1 that if he did not pay $250,000 that day he might be sent to the Mainland.

12. In cross-examination, it was suggested to PW1 and PW3 that they had formed a premeditated plan to trap the 1st defendant by leading him off to a place known to both of them in Sai Kung at which the police were to be summoned in response to false allegations of assault, false imprisonment and blackmail. It was suggested that the intention thereby was for PW1 to be able to evade the debt he owed to the 1st defendant. Both PW1 and PW3 denied those suggestions.

Reasons for verdict

13. In comprehensive but succinct reasons for verdict, the judge stated that she acquitted the 2nd defendant of all the charges having regard, in particular, to her intervention to prevent a further assault upon PW1 whilst in Sai Kung at the café and, also, the absence of any evidence of a positive role being played by the 2nd defendant in events.

14. The judge found PW1 to be confused in his evidence in respect of the assaults in the car, in consequence of which the judge stated that she was unable to determine whether the 4th and 5th defendants were his assailants at that point in time. However, she accepted his evidence they were his assailants outside the café in Sai Kung.

15. The judge rejected the 4th defendant's testimony as to the quarrel and fight he said he had with PW1.

16. The judge accepted PW1's evidence that the 1st defendant had demanded the payment of $250,000 of him, failing which he would not be released. Further, that the demand was repeated on the telephone to PW3. Also, she accepted PW1's evidence that the 3rd defendant had told PW1 that he might be taken to the Mainland. She found the combination of assaults, physical detention and threats to be taken to the Mainland constituted menaces in connection with the unwarranted demand for the money.

17. In consequence of those findings, the judge convicted the defendants of the respective charges they faced.

Amended perfected grounds of appeal against conviction

18. Three primary grounds of appeal are relied upon by counsel appearing for all of the applicants in support of their applications for leave to appeal against their convictions. The first three grounds arise from an alleged failure by the judge to take into account or resolve evidential matters in reaching her determination as to the credibility, honesty and truthfulness of PW1 and PW3. The fourth ground invites this court to allow the proposed appeals on the basis that the convictions are in the circumstances of the case unsafe or unsatisfactory as provided by section 83(1)(a) of the Criminal Procedure Ordinance, Cap.221.

19. Of the ambit of the need for the judge to demonstrate in her reasons for verdict that she had evaluated the evidence this court said, in the judgment of the court delivered by Huggins VP in R. v. Wong Kam Tong [1982] 2 HKC 113 at 117E-H that :

".... While a judge must show in his reasons for verdict that he has evaluated the evidence and must, therefore, deal with any major discrepancies, that does not mean that he must deal with all the inconsistencies relating to peripheral matters. Equally, it must not be assumed that he overlooked or ignored such inconsistencies. It has been said that it is wrong to treat a jury, which is expected to absorb highly complex evidence, as being totally incapable of retaining points of importance and, thus, as needing reminder not only in the closing speech for the defence but also by the judge in his summing up. What applies to a jury applies no less to a judge sitting alone and we are entitled to assume, in the absence of indication to the contrary, that the judge had a grasp of the case presented to him. If a jury is expected to retain the significant points in the evidence without the benefit of notes, the fact that a judge's note omits part of the evidence is not to be taken as proving that he has ignored that evidence, particularly, where the points made appear in the record of counsel's submissions."

Ground 1

20. On behalf of the applicants, complaint is made that in assessing the credibility of PW1 and PW3 the judge failed to consider whether they had a system of making false reports to the police to evade creditors. Through cross-examination evidence was adduced at trial of an incident in June 2002, that is, subsequent to the events of 8 May 2002 which gave rise to the charges at the trial, in which at the behest of PW3 police officers went to the Ruby Restaurant in Prince Edward Road where they arrested persons in the company of PW1 for the offence of false imprisonment. The persons so arrested were released without charge, PW1 making no complaint.

21. Both PW1 and PW3 accepted that PW1 had informed PW3 in a telephone conversation that he was together having discussions with a person to whom he owed money and that he did not have that money. PW3 reported the matter to the police. Both of them denied that in doing so, she, PW3, was putting into operation, a system they had conceived to use the police to evade the debts owed by PW1 to his creditors.

22. That the judge was mindful of the general nature of the allegation being made, which was the subject of cross-examination of both PW1 and PW3 and commented on by counsel in his final speech, is made apparent by her reference at an early stage in her reasons for verdict to the allegation that PW1 and PW3 :

"...devised this scheme to make false accusations against the creditors of PW1 to evade payment of PW1's debts."

23. The judge went on to advert specifically to the June incident in her reasons for verdict :

" I find nothing sinister or sceptical (sic) about their subsequent events in June which arose out of a misunderstanding for which PW3's weak character had a lot to do with the apprehension she had over the creditors of her husband."

24. Having heard the witnesses testify at trial the judge was best placed to make the assessment and finding that she made. Clearly, it was a matter that she considered in determining the credibility of PW1 and PW3 and this was a matter that she resolved in their favour in determining that they were truthful and honest witnesses. There is no merit in this ground of appeal.

Ground 2

25. By Ground 2 it is contended that the judge failed to resolve what is asserted to be a material inconsistency in the evidence of PW1, namely, that he had testified, but later retracted the evidence, that it was the 1st defendant who had threatened him that if he did not pay $250,000 he could be driven to the Mainland.

26. In her description of the evidence adduced by the prosecution witnesses, the judge described the matter thus :

" The 1st accused then told the first prosecution witness that he would not be allowed to go unless he paid the sum of $250,000. D3 also mentioned in the course of the conversation that D1 (sic) could possibly be taken to the Mainland."

27. Clearly, the reference to the 1st defendant is intended to be a reference to PW1. Subsequently, in identifying the evidence of the prosecution witnesses, which she accepted, the judge found :

"... that the 1st accused had made demands to PW1 for the payment of $250,000, failing which the first witness would not be released."

28. Of the second matter she found :

"... D3 made a suggestion that the first prosecution witness might be taken to the Mainland. Of course, the 3rd defendant's demand was said in the presence of the whole group of five defendants."

29. On behalf of the applicants reliance is placed upon a passage in the evidence-in-chief of PW1 :

"A: And then they said that, 'Today, if you do not repay the $250,000 maybe you could be driven to the Mainland, that is not definite.' And they said, 'You have to, you must give the $250,000 today.'

Q: When you say 'they said', who said these words?

A: Mr Chau Iu-fai."

30. When the matter was raised in cross-examination PW1 made it clear immediately that there was contained in his earlier description of what was said two different, separate and distinct occasions. He said : "These words were not said at the same time."

31. A short while later he added :

"Well, as I said, the two sentences were said separately by two different persons and those concerns two different matters and the time difference was very big."

32. PW1 went on to make it clear that it was the 1st defendant who refused to let him leave unless he repaid money and, at a later stage, stipulated the sum of $250,000. He identified the 3rd defendant as the one who uttered the threat about being taken to the Mainland. Of his evidence-in-chief, he said :

"I gave a brief account of the event and I'm now being asked about details, so I answer that."

33. The issue of the alleged inconsistency in the evidence of PW1 was dealt with in some detail in a "No case" submission made on behalf of the 2nd and 3rd defendants in respect of the 1st and 3rd charges, which submissions were adopted by counsel on behalf of all the applicants in his closing speech.

34. It is perfectly clear that in determining that it was the 1st defendant who demanded the stipulated sum of $250,000 and that it was the 3rd defendant who made reference to PW1 being driven to the Mainland that the judge was accepting the evidence of PW1 as to the context into which his evidence-in-chief was to be viewed. No doubt, that is why she determined him to be a truthful and honest witness. There is no merit in this ground of appeal.

Ground 3

35. By Ground 3, it is contended that in determining that PW1 and PW3 were honest and truthful witnesses, the judge failed to resolve what is said to be "a material inconsistency" in the testimony that they gave of the circumstances of PW1 leaving the restaurant and going downstairs to where the vehicle was parked. Although this is said to be an important matter, counsel for the applicants has conceded before us today that the matter was not even raised by counsel for the defendants at trial. Such point as there is, appears to be that on the evidence of PW3 it is suggested that she had told PW1 by telephone of the presence of a vehicle parked in the street before he went downstairs and that, therefore, it cannot be truthful of him to have testified that he did not expect to find the vehicle there. It beggars belief, that it is suggested that this is a material inconsistency. But, in any event, as counsel for the respondent points out in his helpful written submissions the assertion that is made is not borne out by the evidence.

36. It was PW3's evidence that her suspicions first became aroused upon the arrival and entry of the two men, clearly the 4th and 5th defendants, into the restaurant. She described them as having "rushed" past her in the restaurant. She went downstairs in order to be able to telephone her husband to inquire what was happening. Downstairs, she saw a Mercedes Benz parked illegally across the entrance to the restaurant. In it was a person she recognized and she became scared, relating it to events upstairs. She noted the number of the vehicle on a business card. She walked away from the position where the vehicle was parked so that she could no longer see it, at which point she telephoned her husband. She was asked :

"Q: I mean where was he? Was he still in the restaurant so far as you knew or where was he?

A: No, he mentioned that he was already downstairs."

37. Of the circumstances in which she had come to make a '999' telephone call to the police, in which she said that someone was being kept in a vehicle she said that she had not seen her husband boarding the vehicle but that her husband had told her of that fact (page 164S) :

"Q: What did he tell you?

A: He told me that, 'I have already arrived downstairs and I'm already at the vehicle.'

Q: Was that during the telephone conversation you've told us about?

A: Correct."

38. It follows from that evidence as to the sequence of events that there is nothing whatsoever inconsistent with PW1 having testified :

".... Originally, when I was about to go downstairs, I promised that I would only go downstairs, but then when I was downstairs I saw D1 was standing next to the vehicle downstairs and we were a few feet away and I wasn't willing to go on board that vehicle. What I thought to be downstairs was only the vicinity of downstairs and I did not expect to see a vehicle downstairs."

39. Of the telephone call from his wife, in evidence-in-chief PW1 said :

"A: Well, my mobile had already been taken away by one of them before we boarded the vehicle downstairs at the restaurant.

Q: Do you know why that was done?

A: Because before I got on board the vehicle, my phone had rung and it was my wife asking me where I had been to and what was going on.

Q: Did you reply to your wife at that stage?

A: Yes, I did.

Q: Go on, what happened at that stage?

A: At that time, my wife asked me where I had been to and she asked me if a report had to be made to the police and I did not at that time want them to know about it, so I said 'good' or 'all right'."

40. Clearly, the inference to be drawn is that at that stage, events had taken a sudden turn and PW1 realized that he was to be taken away from the vicinity of the restaurant. Hence, his assent to his wife's suggestion that the police be called. There is no merit whatsoever in this ground of appeal.

Conclusion

41. In light of the foregoing analysis, these verdicts were neither unsafe nor unsatisfactory. The applications for leave to appeal on behalf of the applicants are dismissed.