R. v. HO KWOK-YEE and Others

IN THE COURT OF APPEAL

1995, No.204
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This is the judgment of the court in which we set out our reasons for allowing the appeal of D3 and in which we deal with and refuse the applications of D1 and D6.

2. The applicants were D1, D3 and D6 at trial. Prior to the trial D2 absconded. The applicants together with D4 and D5 pleaded not guilty to the charges in which they were involved. The first charge, one of criminal intimidation, alleged that D1 and D4 on the 9th of January 1994, at the Club De Regency, China (Hong Kong) City, Ground Floor, 33 Canton Road, Kowloon, threatened Fan Hoi-man ("Miss Fan")with injury to her person with intent to alarm her. The second charge, against D1 only, alleged that at the same time and place he claimed to be an office bearer of the San Yee On Triad Society. The third charge alleged that D1 at the same time and place assaulted Miss Fan occasioning her actual bodily harm. The fourth charge, one of false imprisonment, alleged that on 6th October 1993 in Hong Kong D1, D2, D3, D5 and D6 and other persons unknown unlawfully and injuriously imprisoned Wong Man-fai ("Mr. Wong") and detained him against his will.

3. It was the Crown case that on 6th October 1993, between midnight and 1 a.m., D1 with D5, D6 and others came to look for Mr. Wong who was working in the Din Lai Long Karaoke ("Din Lai Long") in Tsimshatsui. Mr. Wong said that D1 grabbed hold of him in the reception area, assaulted him and, with the help of others, bundled him into a lift. He said that he was again assaulted inside the lift by a number of people and was then taken to a vehicle. Mr. Wong said that he was frightened and painful and had not been willing to go with D1's party. The car drove to the parking area of the Club De Regency where the party alighted.

4. Miss Fan said in her evidence that having been informed that something was happening she went to the lift lobby and saw D1, D2 and others inside the lift. She said that she went to get her bag and then took a taxi to the Club De Regency as she thought that D1 would take Mr. Wong to that Club. Miss Fan said that in the parking area of the Club she saw D6, D3 and Hui Wing-fu, the general manager of the Club, and others.

5. Mr. Wong's evidence was that he was assaulted by Mr. Hui who said that he had been stealing his people to Din Lai Long and that he owed money to D1 and that he and Miss Fan then went with D1, D5, D6 and others into the Lai Ching Cafe which was part of the Club De Regency. It was the evidence both of Mr. Wong and Miss Fan that there were no people in the Cafe other than themselves and D1 and his group. Mr. Wong said that inside the cafe D1 demanded that he settle a loan which D1 had advanced to his ex-girlfriend Winnie Fung. It seems that Mr. Wong had guaranteed this loan and was paying it back but was, at that time, in default. Mr. Wong said that he was in fear because the cafe was full of D1's people. Finally it was agreed that Mr. Wong would repay the loan by instalments and he and Miss Fan then left the cafe. The agreed repayment was $120,000 including principal and interest. Miss Fan paid two sums to D1 on behalf of Mr. Wong. The first payment was made on 25th October 1993 by way of a cash cheque in the sum of $20,000 and the second was on 25th November 1993 by way of a cash cheque in the sum of $10,000.

6. The Crown relied upon evidence of the above facts to establish Charge 4.

7. The evidence relating to the other three charges was as follows -

8. Miss Fan said that between 1 and 2 a.m. on 9th January 1994, she met D1 at the Club De Regency and he demanded that she pay money to him as the date for the current instalment - 25.12.93 - had passed. There was a quarrel in which she said that it was really Wong's debt and that he had not paid money to her. She said that D1 and D4 came into the office where she was complaining to the general manager and that D1 then threatened her saying that he was an office bearer of San Yee On and that if she did not pay he would chop her to death. She said that he ran up and kicked her on her left thigh and that D4 also rushed towards her wanting to hit her. She said that D4 swore at her saying, "Virago, if you don't pay, see if I would chop you to death or not". She then attempted to telephone and seeing this D1 and D4 left.

9. On 11th January Miss Fan reported the matter to the police and she was then taken for a medical examination which showed that she had a 10cm x 10cm erythema of the left side of her chest, pain over the left hip and a 4cm erythema over the left thigh.

10. At an identification parade held in Wong Tai Sin Police Station on 17th November 1994, Mr. Wong and Miss Fan identified D5 and D6 in relation to the false imprisonment charge.

11. At trial none of the defendants gave evidence nor did any call witnesses.

12. The trial judge, having canvassed the evidence, stated:

"... I find Wong and Fan reliable witnesses. They have told the court the whole truth relating to the incidents which took place on 6.10.93 and 9.1.94. I accept their evidence. I find that on 6.10.93, D1 and D5 together with other three people had gone to Din Lai Long where they had unlawfully taken Wong against his will with force and violence into a lift, onto a vehicle to the valet parking section of Club De Regency where he was detained and assaulted. He was then taken into the cafe where he was detained against his will to settle the account with D1. D5 and D6 were positively identified by Wong and Fan in an identification parade in November 1994. D1 and D5 were seen by Wong in Din Lai Long. D3 were seen by Fan at the valet parking area of Club De Regency where Wong was assaulted. D6 was also seen by Fan inside the cafe. Fan had given evidence that she had often seen the defendants at Club De Regency before 6.10.93 and she could recognise them. Looking at all the circumstances as from the evidence, I do not believe that D3 and D6 were merely present at the valet parking area and the cafe although Fan only saw D3 at the valet parking area and D6 in the cafe amongst the group of people. I find it beyond reasonable doubt that D1, D3, D5 and D6 were in the group together with a common purpose of taking Wong from Din Lai Long to Club De Regency in order to make him settle the account.

Accordingly I find D1, D3, D5 and D6 guilty of the 4th charge.

I also find that the Crown has proved beyond reasonable doubt that on 9.1.94 at the office of Club De Regency, D1 had threatened Fan with injury i.e. 'chopping her to death' with intent to alarm her and that in the course of so doing and in order to show his strength and status to her, he had claimed himself to be an office bearer of Sun Yee On. He had also shown(sic) a bottle of water at her and kicked her, thereby causing her injury.

Accordingly I find D1 guilty of the first charge, the second charge and the third charge."

The judge had earlier acquitted D4 of the first charge. He said when so doing:

"As to the issue that Fan did not mention Ha Kau (D4) in her previous statements given to police on 11.1.94 and 14.1.94 until 21.2.94 after she had received a phone call from a person whom she believed to be D4, she reported to the police implicating D4, she had given her explanation. She said that when she was giving the other statements, her mind was not so settled. She said that she had deeper impression of D1 and Ah Choi, both hit her in the incident on 9.1.94. It is clear from her evidence that D4 played a minor part in the incident and she might have left him out in her statements to police on 11.1.94 and 14.1.94.

However Fan is the only witness in D4's charge. As she had forgotten about him in her statements given to police on 11.1.94 and 14.1.94 and only recalled the incident about D4 6 weeks later i.e. 21.2.94, I will give the benefit of doubt as to the accuracy of her memory of what D4 had actually said on 9.1.94. I now formally acquit D4 of the first charge."

13. We deal firstly with the appeal of D3. The thrust of that appeal was that there simply was not enough evidence to convict D3 on the fourth charge. The evidence was very carefully analysed for us by Mr. McNamara who appeared for all three appellants. Neither Mr. Wong or Miss Fan gave evidence that D3 was in the party which had bundled Mr. Wong into the lift at Din Lai Long. Mr. Wong gave no evidence that he saw D3 at the carpark. The only evidence that he was there came from Miss Fan who said:

"That night Ah Fat (D3) was there."

Mr. McNamara suggests that this didn't even place him in the carpark. We are, however, satisfied that in that statement, when read in context, Miss Fan is saying that D3 was at the carpark. Neither Mr. Wong nor Miss Fan gave any evidence of seeing him in the Lai Ching Cafe. The only evidence against him was, therefore, a statement by Miss Fan that she had seen him at the carpark. There was no evidence that he had done or said anything nor was there any evidence associating him in any sinister way with D1 or the group he was leading. Mr. McNamara submits that as regards D3 the reasoning of the judge leapt an unbridgeable gap when from the evidence that "Fan only saw D3 at the valet parking area" he went on to infer "beyond reasonable doubt that D1, D3, D5 and D6 were in the group together with the common purpose of taking Wong from Din Lai Long to Club De Regency in order to make him settle their account". Mr. Saw, for the Crown, rightly in our view, felt himself unable to advance any argument in support of that conviction. We allowed the application and upheld the appeal.

14. In support of Ground 2 of D6's appeal Mr. McNamara argues that the finding that he had been a member of the group with a common purpose of taking Mr. Wong from Din Lai Long to Club De Regency in order to settle the account was either not supported by the evidence or was contrary to the evidence. He said that Mr. Wong had not included D6 as a member of the group at Din Lai Long. Mr. Wong had, however, having attended the identification parade, identified D6 as having been at Din Lai Long then stated that he was one of the party. Mr. McNamara strongly criticised this evidence suggesting that it was unworthy of any credit. He said it bore all the earmarks of an afterthought. This submission was, he argued, supported by the evidence of Miss Fan who said that she knew D6 but had never suggested that he had been at Din Lai Long. He conceded that both Mr. Wong and Miss Fan said that D6 was at the Lai Ching Cafe but relied upon the fact that neither gave any evidence as to his participating in anything that was said or done there. Mr. McNamara submitted that Mr. Wong's evidence that D6 had been in Din Lai Long was crucial as the judge could not properly draw any conclusion that he had participated in the unlawful imprisonment later in the evening unless he was satisfied that D6 knew that Wong had been taken forcibly from Din Lai Long. We acknowledge the force of Mr. McNamara's argument but can do no more than say that at the end of the day this was a matter for the judge. There was evidence before him which established that D6 had participated in the incident at Din Lai Long and it was for him to say whether he was satisfied as to the truth of that evidence.

15. In Ground 3 Mr. McNamara attacks the finding of the judge that he did not believe that D6 "was merely present at the valet parking area and the cafe". It was suggested that he was thereby reversing the onus of proof. We do not agree. We are satisfied that the judge was doing no more than indicating that he rejected the submission that was made that the presence of D6 in the cafe might well have been innocent.

16. We find no merit in Ground 4.

17. In Ground 5 it is suggested that the trial judge failed to consider the fact that the offence had not been reported until three months after its alleged commission. We are satisfied that the sequence of events which the judge found occurred give an adequate explanation, which he was entitled to accept, as to why the offence was reported when it was.

18. In Ground 6 complaint is made of the following observation by the judge:

"I have no other evidence to suggest that Wong and Fan would resort to telling lies to frame D1 and his friends up of these offences".

It is submitted that this observation indicates a failure by the judge to appreciate both the burden and onus of proof. A fair reading of the reasons gives no support for this criticism. The observation was made after the judge had reviewed the relevant evidence in the light of the suggestion of Mr. Pickavant, who appeared for the applicants below, that Mr. Wong and Miss Fan

"conspired together to tell lies and framed up D1 and his friends. The motive for them to do so was because Wong and D1 had money dispute as to whether D1 (sic) guaranteed the loan or other circumstances."

Mr. Wong was not denying the existence of the loan nor the fact that he had guaranteed it and was liable to repay it. It was certainly not the case that Mr. Wong was endeavouring to avoid repaying the loan by denying the evidence of any liability. If that had been so, it might have been possible to demonstrate a motive for lying. In the observation as to which complaint is made we are satisfied that the judge was doing no more than indicating that the evidence did not indicate the existence of a motive for lying and that he was rejecting Mr. Pickavant's suggested conspiracy to frame D1 and his friends.

19. In Ground 7 it is complained that the judge failed properly to consider the implication of the admitted lies told by the main prosecution witnesses in their various statements to the police. This ground was strongly urged on behalf of both D6 and D1. Miss Fan admitted that she lied in the statement she made to the Organized Crime and Triad Bureau. In this statement she had said that Winnie Fung the original borrower had complained to her and that she had passed this complaint on to D1. She admitted in evidence that she had never spoken with Winnie Fung and that what she had heard had, in fact, come from Mr. Wong and D1. The trial judge, having examined what was said, came to the following conclusion:

"In my assessment of these situations, this does not amount to lying. This is inaccuracy in the statement."

It is not easy to know what exactly he meant by these words. Miss Fan clearly admitted that she had not told the truth in her statement. The judge appears to have been drawing a distinction between the information itself, which Miss Fan said was true, and her statement as to its source which she admitted was not true. However that may be the judge was fully appraised of what had occurred and was not in any way shaken as to the overall credibility of Miss Fan.

20. It is finally submitted in Ground 8 that the judge failed properly to warn himself of the danger of relying on the uncorroborated evidence of witnesses who had a purpose of their own to serve by giving evidence for the prosecution. It is pertinent to remark first that this was a judge sitting alone. He was not required to instruct himself in the terms a judge would use when instructing a jury. If, however, it can be demonstrated that a judge has plainly failed to realize that he is dealing with witnesses who might have a purpose of their own to serve, his decision to accept their evidence can be called into question. When the Reasons for Verdict are read as a whole, it is plain that the judge was perfectly well aware of the suggested danger of relying upon Mr. Wong and Miss Fan because they might have put their heads together to concoct a story for their own purposes. Indeed he detailed and considered all of Mr. Pickavant's suggestions in this regard. We are satisfied that there was no failure by the judge to warn himself as was suggested in Ground 8.

21. We now turn to D1. In Ground 2 it is contended that

"having acquitted D4 of the 1st charge because of the unreliability of PW2 (Miss Fan), the judge was wrong to rely upon her evidence to found the convictions of the Appellant on the first three counts where her evidence was the only evidence implicating the appellant in the commission of the offences."

Mr. McNamara points out that the only direct evidence as to charges 1, 2 and 3 comes from Miss Fan. She told of assaults and threats in the office of the Club De Regency, where she was working as a mama-san, made by D1 and D4 in the presence of Ah Fu, the general manager. She said that D1 told her that he was an office bearer of San Yee On and threatened that if she did not pay the debt owing he would chop her to death. He then kicked her on her left thigh. She said that at this time D4 rushed towards her and wanted to hit her but was stopped from doing so by Ah Fu and that he then said, "Virago, if you don't pay me see if I would chop you to death or not".

22. When Miss Fan made statements to the police on 11th January 1994 and 14th January 1994 she made no mention of the presence of D4 in those statements. It was not until six weeks later on about 21st February that she told of the part that D4 had played. In consequence of this the judge acquitted D4 saying, "I will give the benefit of the doubt as to the accuracy of her memory of what D4 had actually said on 9.1.94". It must be remembered that D4 faced only one charge which was threatening Miss Fan with injury. It was, therefore, of crucial importance to establish what D4 had said on the occasion. As Miss Fan had on two occasions made no mention to the police of his presence or of his having uttered any words, and as her statement as to his part was only forthcoming after six weeks, the judge was prepared to give D4 "the benefit of the doubt as to the accuracy of her memory of what D4 had actually said on 9.1.94". The judge was not here indicating any overall doubt as to the evidence of Miss Fan but simply that he was prepared to give the benefit of the doubt to D4 because of the possibility, given the length of time that elapsed before Miss Fan recalled D4's part in the incident, that she might not have been able accurately to recall the words he used. There is nothing in this ground.

23. In Ground 3 it is submitted that the judge was wrong to hold that the assault on Miss Fan on the night of 9th January 1994 "was corroborated by the medical findings which were agreed by the defence".

24. Mr. McNamara submitted that the judge was wrong to hold that the evidence of the injuries "corroborated" the assault by D1. If the judge was using the word "corroboration" in its technical sense and was holding that the medical evidence of wounds had shown not only that an offence had been committed but also that D1 had been a person involved in the commission of that offence he would have been wrong as Mr. McNamara submits. We have, however, no doubt that the judge was not using the word in its technical sense but was doing no more than indicating that the evidence of the wounds gave support, as in fact it did, to the evidence of Miss Fan.

25. The other grounds of D1 have already been dealt with when considering the application of D6.

26. The applications of D1 and D6 are refused.