LAW NG YUEN v. HKSAR

CACC 325/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 325 OF 2002

(ON APPEAL FROM DCCC 1221 OF 2000)

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REASONS FOR JUDGMENT

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Hon Yeung JA :

1. On 19 March 2003, we granted leave to the applicant, Law Ng-yuen leave to appeal against conviction. We treated the application as the appeal proper and allowed the appeal. We quashed the conviction and set aside the sentence. We indicated we would hand down our reasons and this we now do.

Background

2. The applicant appeared before HH Judge Christie in the District Court on an indictment consisting of the 1st charge of false imprisonment, the 2nd charge of blackmail, the 3rd charge of assault occasioning actual bodily harm and the 4th to 10th charges of theft.

3. The applicant was convicted on all the charges except the 4th charge of theft. He was sentenced to a total term of 2 years and 6 months imprisonment.

Prosecution Case

4. The alleged victim of the case is one Ko Wai-nui, Carrie (PW1) who worked as a mamasan in a nightclub. PW1 had a hostess under her control by the name of Ho Siu-lung (Ho) and the applicant was the common law husband of Ho.

5. In or about April 1999, the applicant persuaded PW1 to gamble in dens in which he had an interest. PW1 was unsuccessful in her endeavours and ended up having a gambling debt of $400,000 that she could not pay.

6. In an attempt to force her to pay the gambling debt, the applicant and two others falsely imprisoned her overnight on 9 May 1999. She was firstly taken to a restaurant where she was forced to make telephone calls to raise money. She was then taken in a car to a stone house in Pat Heung where she was again forced to make telephone calls to raise money.

7. $20,000 and bankcards were removed from the handbag of PW1 and she was hit with a wooden stick on the thigh. The detention and threats continued in another house. She was also made to sign an IOU and shown title deeds of a property that the applicant had asked her to sell or mortgage to repay the debt.

8. At some stage, PW1 was persuaded to disclose the PIN of her bankcards and the applicant and another had left to withdraw money from her account. In the course of her detention, PW1 had the opportunity to call Mr. Siu (PW3) and her brother (PW2) and the matter was reported to the police. On 6 separate occasions on 10th and 11th May 1999, a total of $94,000 was withdrawn from the account of PW1. The $20,000 and the bankcards taken from PW1 formed the subject matter of the 4th charge of theft and the 6 withdrawals of $94,000 were the subject matter of the 5th to 10th charges of theft.

Prosecution Evidence

9. PW1 gave detailed evidence on the events in question. In particular she said a total of three persons took part in imprisoning and blackmailing her. Apart from the applicant, there was Law Kuen-see and Ming Sing. After her release, she was taken to Yuen Long area where she was able to identify one of the houses that she had been taken to. About 100 yards from that house, the applicant's car was located. The house was rented in Ho's name.

10. The police recovered a wooden pole on an upper bunk in the house. PW1 said the wooden pole was used to hit her. The police found the presence of the applicant's palm print on the upper bunk. The police also found an ATM transfer receipt for $4,000 relating to the account of PW1 in the applicant's car.

11. The banking evidence relating to the withdrawal of funds from PW1's account was not disputed. There was medical evidence to show that PW1 had suffered recent injuries.

12. Mr. Siu (PW3) confirmed that PW1 had left a message in his voicemail asking for help. He did call back PW1 on her mobile phone and informed her brother.

13. PW1's brother, PW2 also gave evidence. PW2 said he made a report to the police after PW3 alerted him. He also called PW1 and then had the opportunity to speak to a Mr. Law who demanded money. Mr. Law also gave him an account number to deposit money. The account belonged to the applicant.

Findings By The Judge

14. The judge found PW1 to be a thoroughly unreliable witness and lacking credibility. He suspected that PW1 was fabricating a case against the applicant as she had a grudge against him and could have made a false complaint in order to avoid the gambling debt. The judge said if the prosecution case rested on PW1's evidence alone, he would have dismissed the charges against the applicant at the end of the prosecution case because her evidence was so bad.

15. The judge identified the issue in the trial as follows:

"Whether the circumstantial evidence and other supporting evidence is sufficient to identify the defendant (applicant) as one of the three culprits."

16. The judge appeared to have taken the view that the circumstantial evidence and the other supporting evidence was adequate to enable him to draw an inference of guilt against the applicant and it was on such basis that he found the applicant guilty of the charges with the exception of the 4th charge.

17. The judge said at paragraph 17 of his "Reasons for verdict":

"But there is evidence, despite the lack of credibility of PW1, that she was imprisoned, blackmailed, assaulted and stolen from in respect of the other charges."

18. The circumstantial and supporting evidence referred to by the judge consisted of, inter alia, the banking evidence and the ATM transfer slip, the applicant's account number that was given to PW2 together with his name as well as the evidence relating to the search of the house that PW1 identified.

19. The judge pointed out that $50,000 was transferred from PW1's account to the account of Ho and then immediately withdrawn. The ATM slip was found inside the applicant's car. The judge also pointed out that the house in question was let out to Ho and that the applicant's palm print was found inside the house.

20. The judge concluded that the circumstantial evidence against the applicant was so overwhelming and compelling that he could "no longer think it possible that (PW1) fabricated her allegations against this defendant."

21. The judge then found that the applicant had forced PW1 into a car and kept her against her will and had demanded payment of $400,000 with threats of further imprisonment and beating. The judge also found that the applicant was part of the concerted effort to withdraw the various sums from the account of PW1.

Grounds of Appeal

22. Mr. McGuinniety, on behalf of the applicant submitted that the circumstantial evidence simply was not adequate to enable the court to draw an inference of guilt against the applicant, bearing in mind an inference of guilt could only be drawn if it was the only reasonable inference to be drawn.

23. With respect to the judge, I fail to see how an inference of guilt could have been drawn against the applicant after he had expressly found PW1 to be a thoroughly unreliable witness who had the motive to fabricate a case against the applicant.

24. Ms Sin, on behalf of the respondent, argued that the judge had adopted a fair and proper approach. She said although the judge was initially critical and suspicious of the evidence of PW1 and found her to be thoroughly unreliable, he eventually concluded that the circumstantial evidence was such that it was not possible to regard her evidence as fabrications. The suggestion was that the judge had in fact changed his view on the credibility of PW1 and accepted her evidence. Ms Sin said PW1's credibility had been "revived" and the judge was right to treat her evidence in that regard.

25. A judge should have an overall assessment of the credibility of a witness after hearing all the evidence and not make an "interim" one. If the judge had already found PW1 to be thoroughly unreliable and it was suspected that she was fabricating a case against the applicant, it would not be open for him to turn around and said she was a credible witness and her evidence could be relied upon.

26. The reasons for verdict of the judge could be open to different interpretation. But I could not ignore that the judge appeared to have already made adverse findings on the credibility of PW1. I could not ignore that the judge had identified the issue as "whether the circumstantial evidence and other supporting evidence is sufficient to identify the defendant as one the three culprits" and the conclusion he reached that "there is evidence, despite the lack of credibility of PW1, that she was imprisoned, blackmailed, assaulted and stolen from..."

27. The judge clearly took the view that a conviction could not be sustained on the evidence of PW1 alone otherwise he would have convicted the applicant on the 4th charge as well.

28. The judge relied heavily on the circumstantial evidence. In my view, if PW1's evidence was rejected, the circumstantial evidence could not assist the respondent unless it was independent evidence capable of establishing the guilt of the applicant on its own.

29. The circumstantial evidence referred to by the judge may support the suggestion that PW1 had been taken to various places, including the house rented by Ho. Such evidence may also indicate that various sums of money had been withdrawn from PW1's account and that the applicant was involved in such withdrawals. The medical evidence proved that PW1 had recent injuries to her body at the time of the examination.

30. But taking PW1 to various places including the house rented by Ho was not false imprisonment and withdrawing money from her account was not theft, let alone blackmail by the applicant. The presence of injuries did not necessarily mean those injuries were inflicted by the applicant.

31. It may not be necessary for me to set out the ingredients for the offences of false imprisonment, blackmail and theft. Suffice it to say if PW1 voluntarily followed the applicant and his "accomplices" to the various places and freely allowed them to withdraw the money from her account, no offence of false imprisonment or blackmail or theft could be made out.

32. One could not help but asked the rhetorical questions: Without the evidence of PW1, where was the evidence that PW1 had been unlawfully and injuriously imprisoned and detained against her will? Where was the evidence of unwarranted demand with menaces? Where was the evidence of dishonest appropriation? Where was the evidence that the applicant had assaulted PW1? The judge had not dealt with such issues at all.

33. The evidence of involuntary detention, the evidence of unwarranted demand with menaces and the evidence of dishonest appropriation could only have come from PW1 and no one else. The circumstantial evidence in question could not be independent evidence capable of establishing the guilt of the applicant. Such evidence with respect, could not have led to the only irresistible inference that the applicant was guilty of the charges against him.

34. The judge was not correct when he said, "there is evidence, despite the lack of credibility of PW1, that she was imprisoned, blackmailed, assaulted and stolen from in respect of the other charges." There was simply no such evidence, apart from that of PW1.

35. The applicant did not give nor call any evidence. But the burden of proof rests squarely on the prosecution.

36. It is well established that an inference of guilt or an inference adverse to an accused can only be made if it is the only reasonable inference to be drawn.

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged- and the proof must be 'beyond all reasonable doubt', which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. This requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling-one (and the only one) that no reasonable man could fail to draw from the direct facts proved." (per Lord Diplock in R v Kwan Ping-bong [1979] HKLR 1)

37. The conduct of the applicant was no doubt highly suspicious even without the evidence of PW1. He was accompanying PW1 for a prolonged period of time during which withdrawals from her account were made. It was legitimate to infer that the applicant was party to such withdrawals when a large sum was deposited into Ho's account shortly thereafter. It appeared that the applicant gave his bank account number to PW2 so that money could be deposited.

38. It was difficult to explain the behaviours of PW2 and PW3 if they did not believe PW1 was in some form of danger at the material time. But PW2 and PW3 had no direct knowledge of how PW1 was treated and without the evidence of PW1, the essential elements of the charges were simply not there.

39. The judge found PW1 to be a thoroughly unreliable witness and lacking credibility. The circumstantial evidence was not capable of establishing all the essential elements of the charges.

40. There was insufficient evidential basis to convict the applicant on any of the charges.

Conclusions

41. For these reasons, I determined that I would grant leave to appeal and allow the appeal.

Hon Beeson J:

42. I agree with the judgment of Yeung JA. I too determined that leave should be granted and the appeal allowed.

Hon Stock A:

43. I respectfully disagreed with my two colleagues. I would have dismissed the appeal. I do not agree that in full and proper context, the judge was saying that the circumstantial and other evidence, of itself, proved the guilt of the applicant and, with respect, I do not agree that a judge is precluded from expressing a provisionally adverse view as to general credibility, yet to conclude that that witness' evidence on central issues can nonetheless, in the light of other evidence, be accepted.

44. It is evident to me that if one looks at the Reasons for Verdict as a whole, rather than at isolated paragraphs, the judge did not at any stage discard the evidence of the complainant, leaving his conclusions as to proof of guilt to other evidence only. What he was saying was this: that she was a most unsatisfactory witness, and that had there been no indicia, independent of her evidence, to suggest that she was telling the truth in certain central regards, he would not have convicted the applicant. By saying, as he did, that she was a thoroughly unreliable witness, he was not saying that he was not prepared, under any circumstances, to accept what she said. As it turned out, there was evidence which, he found, strongly suggested that despite her general unreliability she was, as to central features of the case, in fact telling the truth. There was clear evidence that within a short period, a few hours, some $94,000 was withdrawn to empty her account, and during the very period when, she said, she had been detained. These withdrawals took the form that one would expect withdrawals to take when someone has handed over an ATM card to a fraudster: one withdrawal of $10,000; then another of $10,000; then one of $50,000; then another of $10,000; and yet again one of $10,000; and then one of $4,000. Then there was independent evidence that telephone calls were indeed made, which the complainant had said were made, to PW2. This evidence, records of calls, showed that they were made at the time she says that they were made, and we know that the calls resulted in the police being summoned. There were injuries to the complainant, shown, not by her evidence, but by independent medical evidence. True, they did not in themselves prove that she was injured in the way she said she had been injured, but it was objective evidence well capable of supporting what she had said. She told the police that she had been beaten with a plank at the house in question, and indeed there was at that house such a plank found when the police went there. Also found were title deeds to property which she owned, and which she said had been flourished to pressure her. Further, PW2 noted the bank account number of the applicant, and that accorded with evidence that someone at the house had provided the applicant's bank account number to PW2 for the deposit of money.

45. What the judge was, in my opinion, saying was that the applicant's evidence was not provided in a vacuum at all; that here was a substantial body of evidence; items of evidence each different and each of which in fact supported the picture she had painted. Given that fact, his initial heavy scepticism was, in the event, assuaged. He was satisfied that although she was a witness very carefully to be watched when it came to truthfulness, the telephone calls, the emptying of her bank account in the time and manner in which it was emptied, the evidence of assault, and so on, all showed, not merely that she had been involved in negotiations about money and in the payment of money, but that the circumstances were untoward.

46. Then, in the second part of his Reasons for Verdict (which started at paragraph 18 thereof) he turned to the next issue: Could he be sure that when the complainant said that the applicant was party to these events, that was correct? That is the issue to which the quote at paragraph [15] above related. Again, the effect of the Reasons for Verdict as a whole was this: that whilst he, the judge, was aware that there was every motive for the complainant to fabricate the applicant's culpability, and that she was guilty of contradictions, there was other evidence which clearly supported what she said on this issue. That was, in particular, the fact that the applicant's own bank account number was provided; together with the fact the ATM receipt was found in his vehicle; that the house to which the complainant was taken belonged to the common law wife of the applicant; that the applicant had obviously visited the premises; that his motor vehicle was outside the premises soon after the events in question; and we see also that documents belonging to the applicant were found in his vehicle, including a copy of his identity card; and we see also that a computer print-out of the land search relating to the complainant's property was found with the applicant's name on it. And the judge was also aware that the complainant's funds which were withdrawn that day found their way to the account of the applicant's common law wife. It is not that these facts in themselves proved that the applicant was present when the complainant was blackmailed and beaten, but that they provided particularly strong corroborative testimony as to what she was saying. The evidence was such that it removed the suspicion that the judge would otherwise have strongly entertained.

47. I think that the judge was entitled to come to the conclusion which he reached and, for my part, I am satisfied that his reasoning was not illogical.

Result

48. By reason of the majority decision, the application for leave to appeal was granted, the appeal against conviction allowed, the convictions quashed and the sentences set aside.