HKSAR v. KWOK TSZ LOK, LEO

CACC 200/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 200 OF 2008

(ON APPEAL FROM HCCC NO. 289 OF 2007)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the reasons of the Court):

Introduction

1.  On 29 May 2008, following a trial in the Court of First Instance before Madam Justice Beeson and a jury, the applicant was convicted of one count of forcible detention of a person with intent to procure a ransom for his liberation, contrary to s. 42 of the Offences Against the Person Ordinance, Cap. 212.  He was sentenced to 12 years’ imprisonment.  

2.  This matter first came before us on 6 January 2010, the applicant being unrepresented.  Being concerned as to certain matters of law that were raised in the grounds of appeal, we adjourned the matter, directing that the applicant be granted legal aid to pursue his application for leave to appeal against conviction.  At the resumed hearing, the applicant was represented by Mr McGowan.

3.  The applicant originally sought leave to appeal both his conviction and sentence.  Before us, however, he abandoned his application for leave to appeal sentence and that application was dismissed.

4.  Having heard submissions in respect of his remaining application for leave to appeal his conviction, we dismissed it, saying that we would give our reasons later.  We do so now.

Background

5.  The indictment upon which the applicant was tried alleged that between 8 and 10 September 1997 he, together with three other persons, forcibly detained a man by the name of Kwok Chi Ho in a house on Cheung Chau with intent to procure a ransom for his liberation.  The other three persons named on the indictment were Leung Man Fai (‘Leung’), Liu Wan Fai (‘Liu’) and Cheng Ka Ki (‘Cheng’).  

6.  The evidence upon which the applicant was convicted was to the following effect.  On 8 September 1997, the victim, who came from an affluent family, was enticed to Cheung Chau on the pretence that he was to take part in a film.  It was Cheng who took him to the house on the island.  At the house, the applicant, Leung and Liu were waiting and when the victim arrived they set upon him.  The victim was threatened with a knife, tied up and blindfolded.  He was robbed of his wallet containing a number of credit cards and was forced to divulge the PIN numbers of those cards.  He was forced to sign a false IOU for a sum of $3.5 million and it was this document which was used in order to try and extort a ransom from the victim’s family.

7.  On the evening of 10 September 1997, the third day of his detention, the victim was able to escape from the house and alert the police.  Leung and Liu, who had been guarding the victim, were arrested in the vicinity of the house.  Cheng was arrested four days later.

8.  Learning of the arrest of Leung and Liu, the applicant fled to the Mainland where he remained for the next 10 years.

9.  In his absence, Leung, Liu and Cheng were brought to trial before Madam Justice Beeson and a jury.  They were charged with the forcible detention of the victim with intent to procure a ransom and a number of related offences including robbery.  Leung and Liu pleaded guilty.  Cheng pleaded not guilty.

10.  During the course of the trial, Cheng absconded.  However, he was re-arrested and came to trial several months later, again before Madam Justice Beeson and a jury.  He maintained his plea of not guilty.  In his defence, Cheng testified that he had unwittingly been drawn into the criminal enterprise on the applicant’s assurance that he (that is, the applicant) was attempting to do no more than collect a debt properly due to him.  Cheng accused the applicant of being the ringleader of the enterprise.

11.  Cheng was convicted of the offence of forcible detention of Kwok Chi Ho with intent to procure a ransom and a number of related offences.  He was sentenced to a total of 15 years and 8 months’ imprisonment.

12.  In July 2007, the applicant returned from the Mainland to Hong Kong.  At immigration control he produced a false travel document, holding out that he was the person named in that document.  He was arrested.

13.  When the applicant was arraigned, in addition to the 1997 offence of forcible detention of a person with intent to procure a ransom, he was charged with the 2007 offences of using a forged or altered travel document and with making a false representation to an immigration officer in respect of that document.  He pleaded guilty to both these immigration offences but pleaded not guilty to the offence of forcibly detaining Kwok Chi Ho with intent to procure a ransom.

14.  After his arrest, the applicant made a cautioned statement concerning the forcible detention of Kwok Chi Ho.  In doing so he made a number of inculpatory statements.  At trial, the cautioned statement formed the basis of the prosecution case.

15.  The applicant testified in his defence.  He said that he had been approached by Cheng who had held out to him that he wanted his assistance to collect a gambling debt.  The applicant said that he had agreed to assist but, being unable to give his full assistance because of other commitments, he had introduced Leung to Cheng who in turn had introduced Liu.

16.  The applicant called just one witness in his defence: Cheng himself.  In testifying on behalf of the applicant, Cheng accepted that he had in fact been the ringleader of the criminal enterprise to kidnap Kwok Chi Ho and to seek a ransom from his family.  He accepted that at his own trial he had given false testimony when he had pointed the finger of blame at the applicant.  The truth was, he said, that it was the applicant who had been deceived into giving some limited assistance on the understanding that Cheng was seeking to recover a legitimate debt.  The applicant’s involvement, said Cheng, had at all times been peripheral and innocent; he knew nothing of the plan to kidnap and demand a ransom.

The grounds of appeal against conviction

17.  The applicant’s counsel, Mr McGowan, advanced what in substance were five grounds of appeal which he submitted demonstrated that the applicant’s conviction was in all the circumstances unsafe and/or unsatisfactory.

The first and second grounds

18.  These two grounds can be dealt with together, arising, as they do, out of the same exchange of questions and answers which took place during cross-examination of the applicant by prosecuting counsel.

19.  Earlier in the trial, in the absence of the jury, defence counsel had sought a body order to bring Cheng from prison in order to testify.  In opening the defence case, this time in the presence of the jury, defence counsel informed the court that the applicant had elected to testify and would be calling one witness.  Prosecuting counsel was therefore aware of the identity of that intended witness.

20.  During the applicant’s cross-examination, having obtained the applicant’s confirmation that the intended witness was Cheng, prosecuting counsel then commenced the following exchange:

“Q. Cheng was in Stanley Prison because he was convicted of this offence. Is that right?

A. Right.

…

Q. But you do know that he pleaded not guilty to this charge. Is that right?

A. I don't know.

Q. Did you know that he absconded in the middle of the trial?

A. No.

Q. And when he was arrested again he went back to trial in 1999. Did you know that?

A. No.

…

Q. And he was convicted after trial ... did you know that?

..

A. Not at that time.

Q. And in his admissions to the police did you know he tried to put the blame on you?

A. No.

Q. He said it was your idea. Did you know that?

A. No.”

21.  In respect of this exchange, Mr McGowan made the following submissions.

22.  First, prosecuting counsel’s questions sought to elicit answers that were hearsay and therefore inadmissible.  But the greater prejudice, he submitted, was the fact that the questions, which were essentially rhetorical in nature, brought to the attention of the jury that in an earlier trial Cheng had been convicted of forcibly detaining Kwok Chi Ho with the intention of procuring a ransom and in the course of that trial had implicated the applicant in the commission of the offence.  Second, to compound the prejudice already caused, the consequence of the questions was that, for all effective purposes, the applicant was deprived of any choice as to whether or not he should call Cheng as a witness: he was now forced to do so to explain the circumstances in which he had implicated the applicant.

23.  Before looking to these submissions, we make two observations.  First, at the time when prosecuting counsel put the questions, defence counsel raised no objection.  Second, when immediately thereafter, Cheng was called as a witness for the defence, the very same matters which had been put before the jury during the exchange between prosecuting counsel and the applicant were obtained from Cheng by defence counsel himself, those matters forming part and parcel of the defence case.

24.  Turning now to Mr McGowan’s first submission, we agree that prosecuting counsel’s questions should never have been put to the applicant.  As Mr McGowan submitted, they sought to elicit answers concerning matters of which the applicant had no direct knowledge and which were therefore hearsay.  In addition, put at that time, they had the potential to be materially prejudicial to the defence case.  The issue, of course, is whether, in the circumstances of the case viewed as a whole, they were in fact materially prejudicial.

25.  In HKSAR v Lo Wai Ming CACC 530/2005, this Court, differently constituted, considered an exchange which had taken place at trial between prosecuting counsel and the appellant, the appellant having been charged with trafficking in dangerous drugs together with a man named Lau.  Unknown to the jury, Lau had been dealt with in earlier proceedings.  Prosecuting counsel, in cross-examining the appellant, asked him if he would be calling Lau as a witness.  When the appellant said that he would not, counsel put the following proposition to him:

“The reason you’re not calling Mr Lau is because you know he pleaded guilty to taking part with you in this drug transaction. You know that, don’t you.”

26.  As the Court of Appeal said, that information should never have been put before the jury.  It had the dangerous potential of leading the jury to conclude that the appellant was guilty because another accused had pleaded guilty in earlier proceedings to committing the offence together with him.  Prosecuting counsel had attempted to get in “through the back door what he could not get in through the front”.

27.  The circumstances of the present case, however, are very different.  In the present case, the witness, Cheng, was in the court building waiting to be called and prosecuting counsel appears to have put his questions in order to forewarn the jury of Cheng’s fallibility as a witness.  That does not excuse the questions.  But, contrary to Mr McGowan’s submissions, we do not see that they were in fact materially prejudicial.  As we have said, at the time the questions were put, there was no objection to them by defence counsel.  Indeed, defence counsel then proceeded to call Cheng as a witness and elicit from him the very same matters which prosecuting counsel (through the applicant) had been able to place before the jury.

28.  More than that, Cheng’s conviction in earlier proceedings and his attempt to implicate the applicant in the course of those proceedings were matters integral to the defence case.  When Cheng testified, he admitted that he had given false testimony during the course of his own trial, not only as to his own guilt as the ringleader of the criminal enterprise but also in his attempt to implicate the applicant.  He had done so, he explained, because the applicant, at that time being absent in the Mainland, was the obvious target for blame.  However, now that he stood convicted and was serving his sentence, he wished to give truthful testimony and the truth was that the applicant had not been a knowing party to the kidnapping and forcible detention of Kwok Chi Ho in order to secure a ransom from his family. 

29.  Even if it had been the intention to call Cheng, it was Mr McGowan’s second submission that, as a result of prosecuting counsel’s pre-emptory questions, the defence was (for all practical purposes) deprived of the right to come to a final decision whether or not to proceed to do so.  As Mr McGowan put it, an explanation was now required as to how it was that, in another independent set of proceedings, a co-accused had pleaded guilty to the same offence faced by the applicant and had implicated the applicant in the commission of that offence.  In short, so it was argued, prosecuting counsel’s improper cross-examination had forced the applicant’s hand.

30.  But, looking to the reality of matters, we are satisfied that the applicant was never placed in such a position.  Assuming, despite defence counsel’s failure to object to the questions put to the applicant, that a final decision to call Cheng had not yet been made, it nevertheless remained open to defence counsel to inform the court that, as a result of the improper questions, the applicant was placed in an invidious position as to how best to conduct his case.  An application for the discharge of the jury could then have been made.  An application to the same effect (but for another reason) was made by defence counsel at another point in the trial: see paragraphs 48 and 49 of this judgment.  On this occasion however counsel did not see fit to make such an application.  There can only be one reason for not doing so.  That is because the final decision had already been made to call Cheng as a witness for the defence and the defence duly proceeded in accordance with that decision.

The third ground

31.  In the course of Cheng’s testimony, defence counsel sought confirmation from him that Leung and Liu had also been convicted of detaining Kwok Chi Ho with intent to procure a ransom, indeed that they had pleaded guilty to that offence.  In the result - through defence counsel - the jury were made aware of the fact that the applicant’s three co-accused named in the indictment had all been found guilty of the charge faced by the applicant.  

32.  There could only be one reason for this.  It was not in issue that the victim had been forcibly detained nor that ransom demands had been made of his family.  It was, however, the prosecution case that four persons had committed the crime, namely, Cheng, Leung, Liu and the applicant, while it was the defence case that only three had committed it, that is, Cheng, Leung and Liu; the applicant not being a party to the criminal enterprise.  The issue to be determined by the jury was therefore a single and straightforward one.  In light of all the evidence, including the evidence of the applicant and Cheng, could they be sure that the applicant was also a party to the criminal enterprise?

33.  In respect of that single issue, it was integral to the defence case that the jury be made aware that, aside from the applicant, all the others named on the indictment had admitted their complicity in the criminal enterprise.  It was integral to the defence case because it was against that background that the evidence of Cheng, the admitted ringleader, stood to be viewed most sympathetically when he testified that only three persons had taken part in the commission of the crime, namely, the three who had already admitted their guilt and had admitted the roles they had played.

34.  It was in this context that Mr McGowan advanced his third ground of appeal.  It was to the effect that, even though the convictions of Cheng, Leung and Liu were integral to the defence case, it remained incumbent on the judge to direct the jury that the fact of those convictions could have no bearing on their decision in respect of the applicant’s guilt.

35.  But, as we have said, it did have a bearing in the sense that it was central to the defence case.  The jury were asked to accept Cheng's testimony supporting that of the applicant.  They were asked to do so on the basis that Cheng had now fully admitted his own criminal conduct and had brought to their attention that Leung and Liu had also admitted their criminal conduct in the same criminal enterprise.  Against that background of admitted complicity, the jury were asked at the very least to accept that the mutually supporting evidence of the applicant and Cheng may be true and that the applicant may not himself had been a party to that criminal enterprise.  That being so, while in the normal course of events a direction of the kind advanced by Mr. McGowan may have been required, in the circumstances of this case it was not, in our judgment, necessary.

36.  During the course of argument, Mr. McGowan's submission was extended to include a submission that it was nevertheless incumbent on the judge to direct the jury that, even if they rejected Cheng's evidence, it was not permissible for them to use the fact of the earlier convictions of Cheng, Leung and Liu to infer the guilt of the applicant.

37.  Again, we do not see that, in the particular circumstances of this case, such a direction was necessary.  As we have said, the issue in this case was a stark one.  The defence wished it to be so.  The question before the jury was this.  In light of the evidence that Cheng, Leung and Liu had admitted their own criminal conduct and that Cheng was now supporting the applicant in exonerating him of any knowing involvement, were Cheng and the applicant to be given the benefit of the doubt or was their evidence, which was mutually supportive and in large measure stood or fell together, to be rejected?  In this context, it was inherent in the case advanced and canvassed that the fact of Leung and Liu’s pleas of guilty could not be taken to mean that the applicant was or may also have been guilty.

The fourth ground

38.  In testifying as to how he had come to make certain admissions in his cautioned statement, a statement which he said had been obtained from him by threats and trickery, the applicant denied that he had allied himself to a criminal scheme to kidnap Kwok Chi Ho in order to procure a ransom.  He admitted only that he had allied himself to a scheme to collect a debt even if, in order to collect that debt, it meant restraining Kwok Chi Ho’s freedom of movement.  The applicant, it appears, saw the latter course, even if morally reprehensible, as not constituting criminal conduct.

39.  It was Mr McGowan’s submission that in the circumstances it was incumbent on the judge to direct the jury that there is in law a distinction between the offence of false imprisonment, for example, restricting the freedom of movement of a person in order to collect a debt, and the offence charged, that is, the offence of unlawfully detaining a person with intent to procure a ransom for his liberation.  It was Mr McGowan’s submission that the judge, in summing-up to the jury, had made “disparaging remarks” concerning the applicant’s belief that, if the purpose of restraining the movements of Kwok Chi Ho was in order to seek payment of a debt properly owed, then that was permissible.  Those remarks, he said, added to the importance of directing the jury as to the distinction between the different offences.

40.  First, we do not agree that, read in context, the comments of the judge were disparaging.  They were accurate reflections of the relevant evidence.  Second, we do not see that there is any substance in the submission that the jury should have been burdened with a direction distinguishing the ingredients of false imprisonment and the offence charged.

41.  The applicant faced a single charge.  The ingredients of that charge were fully explained to the jury.  The jury had to be satisfied that the applicant had been part of a group that detained the victim in the house against his will knowing that the intention was not simply to collect a debt but was to obtain a ransom.  As the judge directed in the clearest terms, in this case the ransom was to be obtained from the victim’s family.

42.  In addition, as Mr Lee, counsel for the respondent said, this was not a case where the applicant had admitted some lesser offence, for example, false imprisonment.

43.  In accordance with the directions of the judge, if the jury was not sure on a consideration of all the evidence that the applicant had taken part in detaining the victim with the specific intention of procuring a ransom for his liberation then the applicant was entitled to be acquitted.  In the circumstances, directions concerning the essential ingredients of similar offences such as false imprisonment or kidnapping would only have served to confuse.

The fifth ground

44.  During the course of the trial, two prosecution witnesses, both police officers, made brief reference to the fact that, in addition to the principal offence of forcibly detaining a person with intent to procure a ransom, they had investigated the applicant's possible involvement in other criminal activity.  Mr. McGowan did not submit that with this evidence now before the jury, no matter how sparse its nature, the jury should have been discharged.  However, he did submit that, as the applicant's credibility was a crucial issue for determination by the jury, the obligation fell on the judge to warn the jury in clear terms that it must ignore all evidence of these other investigations.  Such a warning, he said, or at least a warning in appropriate terms, was not given.

45.  The first mention of an investigation into any other offence was made by a Detective Police Constable when, during re-examination, he was asked about his involvement in the course of the applicant’s investigation.  Before being stopped, he began his reply by saying:

“On the following day I investigated with this arrested person concerning another case about - .”

46.  The second mention was made by a Detective Senior Sergeant.  While being cross-examined, he said:

“… as soon as I saw him, I introduced myself to him and then I knew his name. I told him that he would be interviewed in relation to a case of kidnapping happened 10 years ago in 1997 and that he was also investigated upon because of his uttering forged travel documents and was stopped by the immigration officer. But that’s all I had talked to him. That’s all.”

47.  In the presence of the jury, defence counsel asked the judge to direct the jury to ignore this mention of other offences.  This the judge did in terms that were succinct and clear:

“Members of the jury, he was investigated for two allegations, the kidnapping and travel documents. The travel documents don’t concern us at all in this court. They are quite irrelevant.”

48.  However, the matter did not end there.  In the absence of the jury, defence counsel then made an application for its dismissal on the basis that, despite the direction just given, the jury had now been made aware of a criminal matter which was “attached” to the applicant and may well presume that he had attempted to return to Hong Kong using false documentation.

49.  The judge declined to dismiss the jury.  This was a matter, she said, which could be cured by a direction to the jury.  Although she had already given the direction to which we have referred, she indicated that she would give a further one.  As it transpired, however, no further direction was given.

50.  In the circumstances, Mr McGowan’s complaint was not to the effect that no direction was given but rather that no further direction was given.

51.  In our judgment, even though in the absence of the jury the judge had indicated to counsel that a further direction would be given, as matters stood there was no need for the direction to be repeated.  When the assertion of collateral investigation was raised during the course of the trial, the judge had immediately given the clearest direction to the jury that any such investigations were irrelevant to the matters that fell for their consideration.  The jury could not have been left in two minds.  That direction was sufficient as it stood and in the circumstances did not require repetition.  Indeed, raising the matter afresh at the time of the summing-up, may well have done the defence more harm than good.

52.  By way of postscript, although it was not known to us when we dismissed the applicant’s application for leave to appeal, a subsequent review of the audio tape and transcript of proceedings revealed that:

(a)   Prior to giving her directions to the jury, the judge enquired of counsel on two occasions whether there was any particular direction counsel wished her to give.  Defence counsel said that he left the matter entirely in the judge’s discretion.

(b)   After the judge had completed her direction to the jury, when she enquired again if there were matters that should perhaps have been raised, it was only then that defence counsel raised the issue of the jury learning of police investigations into the immigration offences.  The judge replied to the effect that she had deliberately refrained from raising that issue again for fear that it may exaggerate the importance of the matter in the minds of the jury.  Defence counsel did not in any way contest the wisdom of that decision.

Conclusion

53.  For the reasons given, we were satisfied that the conviction of the applicant was neither unsafe nor unsatisfactory.