THE QUEEN v. KWOK PO KONG

 IN THE COURT OF APPEAL

No. 94 of 1987
(Criminal)

BETWEEN

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J U D G M E N T

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Hunter, J.A.:

1. A total of 6 defendants stood trial in the Tsuen Wan District Court before Judge Fung charged with the false imprisonment of a man named Ip Kwok-wah between the 8th -10th October 1986. The upshot of the trial was that the first 5 defendants were acquitted, the 4^th and 5th having no case to answer; the 6th defendant was not present, he having jumped his bail; and the 7th defendant alone was convicted. It is against that conviction that the 7th defendant now seeks leave to appeal.

2. The incident in question arose out of an abortive gold transaction. The story which emerges in the Judge's Reasons for Verdict is not totally clear or complete. But it seems to go something like this. Apparently two men, who came out of mainland China arid disappeared back into it after this deal, had possession of a quantity of taels of gold. There is some suggestion that the gold may have been stolen. They were looking for buyers and the victim and another man by the nickname of Kam Chai were asked apparently to find buyers. They made this position known first of all to the 4th and then to the 5th defendant, and ultimately to the 7th defendant.

3. A consortium of buyers was put together which seems to have comprised at least Dl, D4, D5, D7 and possibly one or two other persons. They were going to take an interest in this consignment of gold in each case at a price of $14,000. The total purchase price of nearly $70,000 was in fact funded by the 7th defendant. A deal at this price was apparently struck on 7th or 10th October (I use the word 9th or 10th because there seems to be the some ambiguity as to whether the events which I am about to describe started on 9th or 10th. The dates are conflicting in the papers).

4. D7 before buying the gold inspected it and thought it was genuine. He then had a switch done on him so he asserted.  He ended up with a package which looked like the package he had inspected and found genuine, but was in fact something quite different and contained a parcel of false or pretend gold. In other words, he paid $70,000 for a useless consignment. It then appears that he thought that the two parties who introduced him to this transaction, namely Kam Chai and the victim Mr. Yip, should be “persuaded” to contribute to this loss.

5. Apparently a group of them met up in a restaurant at something like 3 o'clock in the afternoon at 10th, this was the victim, D4, D5 and D7. They then moved first of all to D2' s flat in Tsuen Wan, and then to another empty room, apparently in the same building. To this flat Kam Chai was persuaded to come. It must have been something like 5 o'clock that afternoon when a party, consisting of the two introductory agents, the victim and Kam Chai, D1, D2, D4, D5, D7 and possibly D3 were assembled in this flat. It was then explained to the two agents that the transaction had proved to be a total fraud and, putting the thing neutrally, their contributions to the loss were invited.

6. The victim's account substantially accepted by the judge in the court below was that he did not want to pay and t hat it was not in any way his responsibility. But that he was told that he would not leave unless he found some money. He was then persuaded to make a number of telephone calls endeavouring to raise money from his friends.

7. The next significant event seems to have happened at about 7.30 or thereabouts, when the present applicant left, accompanied by Kam Chai, D4 and D5. The judge seems to have accepted that the applicant was away having a meal and doing something else between about 7.30 and 10 o'clock that night. Whilst he was out of the room an event of some significance took plate, which was that the 2nd and 3~d defendants came back with a stranger. According to the victim the stranger then assaulted him. This in the victim’s view was part of the softening up process. I would also add that the victim asserted that the 2^nd and 3rd defendants had been acting as his personal gaolers, escorting him every time he wanted to go to the toilet. There was no lock on the door and the victim was free to go if he wanted to. But he explained that, he did not try because and I quote here from the judge's findings:

"He was fully aware that the 1st defendant, the 2nd defendant and the 1st assailant (whom I take to be the person who committed the assault) would not let him go.”

8. Further attempts were made by him later that evening to ring round without success. At something like half past twelve he was eventually allowed to leave and did leave in fact in the company of the 1st, 4th, 5th and 7th defendants. The 7th defendant left them. The rest went off to a restaurant and had a snack.

9. Now the judge's conclusion and findings about that were that the applicant had insisted that the victim should pay his share and he was not to be allowed to leave until he paid up. The victim made no attempt to leave physically. The reason for that was a matter of fear, of numbers, of threats of assault and assault after that one had taken place. On the judge's finding (and I quote):

"I find that he was kept there and was released when there was no hope of his raising sufficient money for the compensation."

So the judge's conclusion was that this man was detained from about 5 o'clock in the afternoon until half past twelve the following morning in the hope that he would be able to raise some funds. The attempt totally failed. When it was appreciated that he was not going to raise any money they let him go.

10. It was not surprising in those circumstances that this number of defendants all found themselves in the dock. What is perhaps more surprising is that only one was convicted. The 4th and 5th defendants were dismissed from the case during its course on the basis of no case to answer?  The judge declined to find that the 1st defendant was aiding and abetting any imprisonment. He reached the same conclusion as against the 2nd and the 3rd defendants. That only left the 7th defendant. As against him the judge concluded that although he was away from the flat from 7.30 to 10.00 p.m. that night: "I find that it was his intention to disallow the victim to leave unless he found the compensation and what he told the victim was that he could not go if he did not pay was still in force."

11. There are grave problems in my judgment about that conclusion. It is perfectly possible to imprison someone by threats and by fear. In other words false imprisonment can be brought about other than by a locked door. That was this case. But if there was the false imprisonment which the judge found here from 5.00 p.m. until the early hours of the following morning, that seems to me to be brought about by a group activity; an activity which seems to cover several of these defendants. I would be invidious for me to name any of them in this judgment. They were the people who by their numbers and conduct gave rise to the fear in the mind of this victim. This state of affairs could not have been maintained throughout that period of time by one man alone, particularly when that one man was on the judge's findings away for a 1.rge period of time in the middle.

12. So it was not surprising that Mr. Bruce, who has argued this case with both frankness and skill on behalf of the Crown, admitted that the actual finding of the judge, that the applicant was guilty of false imprisonment, for the whole course of the evening could not be sustained, and that the most that could be sustained would be imprisonment for some earlier period in the evening from I take it something like 5 o'clock until 7.30 p.m. when this applicant left. He sought to persuade this court to substitute a different finding to that of the judge; to substitute a finding of false imprisonment from something like 5 o'clock until 7.30, based upon the judge's finding that this defendant had told the victim that "if you do not pay you could not go." This was sufficient to establish a false imprisonment, and to constitute the crime of false imprisonment for that lesser period.

13. There seem to me to be a number of substantial problems about accepting that invitation from the Crown. The first is that it  was never considered by the judge at all. He never applied his mind to a case of false imprisonment extending over such a limited period.

14. Secondly the circumstances in which the crime of false imprisonment can initially take place are not very clearly defined in the books. I read this from 12th Edition of Russell on Crime Vol. 1 p.690:

"False imprisonment is unlawful and total restraint of the personal liberty of another, whether by constraining him or compelling him to go to a particular place, or by confining him in a prison or police station or private place, or by detaining him against his will in a public place."

The locus here was a private place and the issue was whether there was unlawful and total restraint of the personal liberty of the person in that place.

15. This was a meeting set up initially on the judge's findings, innocently, the present these agents with the facts relating to an economic loss, and to invite them to contribute ? They were not brought there by force. They were asked to come and they came. Whilst they were there some time was spent by them in telephoning friends to see if they could raise money; which they could put into the pool to mitigate this loss.

16. In such circumstances it can be a very nice question indeed as to the point at which what I can perhaps call "economic pressure" crosses the dividing line into false imprisonment. This is a point which has to be considered with very great care by any court presented with this sort of problem in the light of all evidence. This was a matter which was never started to be considered by the district judge in this case. It seems to ~e impossible or this court to start: going into a fine question like that simply upon the judge's notes.

17. If the judge had found that this was a joint enterprise involving more than one of the named defendants, his conclusion, I suspect would have been impeccable and completely unchallengeable. But he has not gone that far. He has singled out this applicant only. This conclusion we regard as unsupportable, nor can we substitute any other compromise verdict. In those circumstances this application must be allowed and the conviction set aside.