THE QUEEN v. CHEUNG CHI MAN AND OTHERS

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Cheung Chi Man who was D1 at trial, aged 19, Kwok Kiu Kwong who was D2 at trial, aged 19 and Lam Ming Fung, who was D3 at trial an of the same age, were convicted before His Honour Judge Leong in the District Court on a joint charge of false imprisonment. D1 also faced a further charge, upon which he was convicted, of resisting a police officer in the due execution of his duty.

2. There had been a second charge on the indictment of blackmail but all were acquitted of that.

3. The general allegation was that on 28th September 1988 they had imprisoned one Chiu Kam Shui. The blackmail charge upon which they were acquitted alleged that outside the Astor Garment Factory in Tai Yau Street a demand was made from one Lam Chim Chi, who was the mother of Chiu Kam Shui, with menaces.

4. The sentences passed were in respect of Cheung Chi Man 2 years and 6 months consecutive and those sentences were ordered to run consecutive to sentences he was then serving; both Kwok and Lam had Training Centre orders made in respect of them. All three now seek to appeal their convictions on the first charge, Cheung Chi Man does not seek leave to appeal his conviction on the charge of resisting a policeman in the execution of his duty. They all further seek to appeal, if necessary, against their sentences.

5. Chiu Kam Shui, who had a history of mental instability and in respect of whom a medical certificate was produced to the trial court stating him to be mentally stable and able to give evidence, was the main prosecution witness. It was his evidence that he went to Macau to gamble, lost and borrowed loan shark money. In turn he lost that. He was then escorted to his hotel room by three men who stayed with him overnight and on the next day brought him back to Hong Kong. He and they went to his mother's working place where she was asked to repay his debt.

6. It was conceded that the three applicants were those three men.

7. When they met with Chiu's mother, she wanted her son to go with her and this was refused. There was what was described as a "tug of war" between the mother and the applicants over the body of Chiu.

8. Chiu's evidence went on that there were threats made by the men to both his mother and to himself to induce repayment. This was not supported by the evidence of the mother.

9. A police officer gave evidence of Cheung Chi Man's resistance at the time of his arrest. He was believed and there is no quarrel, as we have indicated, as to the correctness of that conviction.

10. The defence case, not supported by evidence from any of the applicants and put in cross-examination, was that Chiu willingly went with them in Macau and to and in Hong Kong.  This indeed as the result of an arrangement made between Chiu and the applicants in Macau. It was suggested that his freedom was never restrained and that the "tug of war" was recent invention as it was not referred in Chiu's statement to the police.

11. Chiu's evidence supported the fact of an arrangement having been made by him, and at his instigation, that if the money were lent then he and the three applicants would go to Hong Kong to, if necessary, arrange collection of the debt from his mother. He agreed that the men should "escort" him - for want of a better expression - both in Macau and to and in Hong Kong.

12. He further accepted in examination in chief that it was he who told his mother that if the money were not paid "it might cost me my life".

13. Mr. Westbrook, who appears for the applicants in this Court, has as his main ground of appeal that which he suggests is the unsafe and unsatisfactory nature of the convictions. He particularises first that the trial judge failed sufficiently to take account, in considering his reliability, Chiu's history of mental illness. He has referred us to various portions of the transcript in which there is reference to this topic including the view expressed by the mother that her son was insane.

14. He further submits that the trial judge failed to make reference to and resolve that which he describes as inconsistencies both in Chiu's own evidence, that evidence as contrasted with the contents of his police statement, out of which Chiu was cross-examined, and the differences as between the mother's evidence and that of Chiu. He has referred us to further portions of the transcript to support his contentions.

15. Finally it is his submission that when the judge, having found Chiu to be "an honest and reliable" witness, went on to acquit the applicants on the second charge of blackmail because the mother's evidence did not support that of Chiu as to menaces, the conclusions of the trial judge were inconsistent.

16. While accepting, as he must, that it is not part of the duties of a judge of the Dstrict Court to refer to and resolve all the inconsistencies which can arise in a trial, provided that he shows himself to be aware of them, it is nevertheless Mr. Westbrook's contention that the trial judge here was wrong to find Chiu a reliable witness, however honest he may have been. This resulted from his failure to properly evaluate both the evidence generally and the major inconsistencies in particular. There was, Mr. Westbrook would have it, an obvious motive for Chiu to exaggerate - his stated fear of his mother's displeasure which he had experienced on at least two other occasions when he lost at gambling.

17. Giving that the charge of false imprisonment stemmed from the admitted agreement in Macau to which we have referred considerations of Chiu's state of mind at the time when he and the applicants encountered his mother was both relevant and necessary.

18. We doubt, for it is not reflected in the Reasons for Verdict, if the trial judge was addressed on this aspect. Further we doubt if the issue of whether or not a man can acquiesce in his deprivation of liberty - and whether or not on the evidence available, Chiu did so here - was ever raised at trial.

19. The evidence disclosed the apparent simplistic and all too familar story of a man willing to do anything for the extra money to be used to redeem earlier losses and then in turn losing that and of money paid over on a promise of repayment at exorbitant rates of interest and the subsequent attempts to secure that repayment. But the agreement apparently freely come to in Macau takes this case out of the ordinary run and raises issues of substance which do not appear to have been raised in examination in chief or cross-examination or discussed at trial. The nature and validity of such agreement, its effect and whether the events in Hong Kong were part and parcel of it are some. Did its terms embrace what was to take place in Hong Kong? Is a man entitled to resile from such an earlier agreement?

20. There were certain aspects of the testimony of the witnesses which should, with respect to the trial judge, have received greater analysis. But our main concerns are the issues which we think to have emerged from that evidence generally and which did not receive, not having been in any way canvassed before the trial judge, the attention they deserved.

21. We think that the public policy considerations which exist demand that they be fully ventilated and argued at first instance and this in turn necessitates a retrial.

22. We would therefore give leave, treat the hearing of the application as the hearing of the appeal, quash the convictions on the 1st charge, set aside the sentences on that charge and direct a new trial in the District Court on a fresh charge sheet containing only the charge of false imprisonment.