TSE KWOK KEUNG and Others v. R.

IN THE COURT OF APPEAL

1991, No. 529
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The first applicant TSE Kwok-keung ("Tse") was convicted on his own plea, and the second applicant CHUNG Yuk-kau ("Chung") and the third applicant MAK Ah-yau ("Mak") were convicted, after trial, of forcible detention of a person with intent to procure a ransom for his liberation. They were sentenced to imprisonment for 18 years, 25 years and 22 years respectively. Chung seeks leave to appeal against both conviction and sentence. Tse and Mak seek leave to appeal against sentence only.

2. For the purpose of these applications, it is necessary to give only a bare outline of the facts. Shortly after 8 p.m. on 10 April 1990, the victim, a Mr WANG Teh-huei, was forcibly taken away from his car and detained. A ransom of US$30 million was paid but the victim was never seen again, is presumably dead.

3. The Crown relied principally on the evidence of an accomplice called Hui and a number of cautioned statements made by Chung.

4. Two grounds of appeal against conviction have been advanced on Chung's behalf.

5. Firstly, it is contended that the learned trial judge erred in admitting into evidence Chung's two cautioned statements made on 16 May 1990 (Exhibit 72) and 17 May 1990 (Exhibit 73), such statements not having been made voluntarily. In particular, it was said, the deputy judge failed to fully consider the allegations made by Chung that prior to these statements being made, he had been assaulted, prevented from seeing his solicitors and been promised immunity if he co-operated.

6. The cautioned statements were the subject matter of a voir dire, during which Chung's complaints against the police were fully canvassed. Chung gave evidence that an Inspector To had assaulted him at an interview in the police station, but it is worthy of note that Inspector To was not the officer who took statements from him. The statement-taking officers were Chief Inspector Tam and Inspector Chan. It is true the medical evidence indicated a faint and small bruise mark on the chest consistent with having been caused by a hard object. There was, however, no independent evidence as to whether the injury was self-inflicted or whether it had been caused by another person. The possibility that the injury was caused on 13 May 1990 was "very low", but the possibility that it was caused on the 14th was "higher". Chung was taken into custody on the 15th and the two cautioned statements in question were taken on the 16th and 17th respectively by officers other than the Chief Inspector whom Chung said had assaulted him.

7. The deputy judge, having found that there was no oppression, inducement or assault, was satisfied that the two statements had been made voluntarily, and he saw no grounds to exercise his discretion to exclude them.

8. All that could be said below by counsel on Chung's behalf was said before this court. The deputy judge had all the evidence before him and counsel addressed him fully on the relevant issues. We cannot say the deputy judge had committed an error in any way.

9. Still under the first ground, it was said that the police had denied Chung the right of access to his solicitor. The deputy judge had the evidence of the solicitor as well as that of Chung. He accepted, as he was entitled to, the evidence of Inspector Chan that, when taking the statement on 16 May 1990, he asked Chung if he wanted to wait for the arrival of his solicitor before he started his statement, and the reply was that there was no need. Again this, and all the other complaints, had been considered by the deputy judge when he made the ruling that Chung's statements were voluntary and admissible.

10. Then it was argued that the applicant had been promised immunity if he co-operated. Again the deputy judge had considered the issue and found there was no inducement.

11. The first ground of appeal fails.

12. The second ground of appeal is that the deputy judge had erred in his direction to the jury on the accomplice evidence (a) by failing to give any reasons lying behind the danger of accepting the accomplice Hui's uncorroborated evidence; and (b) by wrongly directing the jury that they could act on Hui's evidence without reminding them that they could only do so upon the evidence if they were satisfied that it was true.

The direction which the deputy judge gave was this: -

"Another matter of law which I must explain to you concerns the giving of evidence by an accomplice. The Crown have called HUI. HUI is clearly an accomplice, and the evidence of an accomplice is always suspect. It is for that reason that the law requires me to give you a warning with regard to HUI's evidence, and it is this - I must warn you, members of the jury, of the danger of convicting a defendant on the uncorroborated evidence of such person, that is of HUI.

Now what does corroboration mean ? It means this, members of the jury - independent evidence from a source other than HUI which implicates the accused, that is, which confirms in some material particular, not only the fact that the crime was committed but also the fact that the defendant was the person who committed it. Having been warned of this danger, if despite the warning, but bearing it in mind, you can act on the evidence of HUI even if you find that there is no corroboration."

13. While it is true that in this passage the deputy judge did not refer to any specific reason that the accomplice Hui might have given false testimony, he went on later to say: -

"HUI has told you that after his arrest in connection with this offence, he had deliberately set out to mislead and deceive Superintendent PONG by falsely accusing one of his associates, CHUNG Wah, with trafficking in dangerous drugs. Now he admitted he lied and that he told these lies because it was his hope that by doing this he would somehow divert the Superintendent's attention from his part in the abduction of Mr. WONG Tak-fai. HUI has admitted before you that he is prepared to lie to save his own skin, although it is his evidence that what he has told you in this court concerning the 1st and 2nd defendants he makes no mention whatever of the 3rd - is true."

14. In the light of this passage we are of the opinion that the jury could have been in no doubt that the danger which existed was that Hui could have been giving false evidence in order to shift the blame to the applicant in order to save his own skin.

15. As to the second complaint, although it is plain that the deputy judge directed the jury that, even if they concluded that there was no evidence capable of amounting to corroboration of Hui's testimony, they could still act on that testimony provided they bore in mind the danger of convicting the applicant on that testimony alone, he did not direct them that, in that event, they must be sure that Hui was telling the truth. However, we do not think that, in the light of the deputy judge's direction that if they were not sure of the applicant's guilt it was their duty to find him not guilty, the jury could have been under any impression other than that if they were to convict on Hui's testimony alone they must be sure that Hui was telling the truth regarding the applicant's involvement in the crime on which he was standing trial.

16. What was essential was that the deputy judge direct the jury that it was dangerous to convict the applicant on the evidence of Hui in the absence of corroboration. He gave this direction. Moreover, this was not a case where there was no evidence capable of amounting to corroboration. There was, as the deputy judge correctly directed the jury, the evidence of the applicant's two confessional statements which were plainly capable of corroborating Hui's testimony. The second ground of appeal also fails. The application for leave to appeal against conviction is therefore dismissed.

17. We now go on to the sentences.

18. It was argued by counsel for the applicants that the level of sentences in the instant case is much higher than those imposed in earlier kidnap cases.

19. In The Queen v. PAU CHENG NA YUET (1992) No. 496 (criminal) (unreported), where the victim of the kidnapping was the same Mr WANG Teh-huei in 1983, the accused, a woman of 67 years of age, was sentenced to seven years' imprisonment. The starting point adopted by the trial judge was ten years. The Court of Appeal held that it was an entirely proper sentence.

20. In Attorney General v. David Lee Po-man (1992) 2 HKCLR 70, the respondent, a 19 years old youth, was sentenced on a review under Sec. 81 of the Criminal Procedure Ordinance, to five years' imprisonment. The Court of Appeal heal that ten years would not have been an inappropriate starting point and, had it not been a review, a sentence of seven years would have been proper.

21. The Court of Appeal in The Queen v. TAM Ping-man (1992) No. 161 (criminal) (unreported) held that for a planned kidnapping contrary to the Common Law and for ransom, a sentence of not less than eight years' imprisonment for a conviction after trial might well be called for.

22. In The Queen v. LAM Hing-yin and others (1993) No. 46 (criminal) (unreported), 14 years' imprisonment was said to be proper for robbery and forcible detention of a person with intent to procure a ransom for his liberation.

23. Quite apart from the authorities, a question may well be asked as to what sentences should be passed on an accused, who had played a key role in the kidnap if the sentences on those with relatively minor roles received the sentences they did ?

24. That the part played by Tse and Mak was comparatively small was never in dispute. Tse assisted in dragging the victim from his car, and whether or not he actually physically laid hands on the victim when the latter was assaulted, the deputy judge found that he was part of the assault. Mak's role, the deputy judge found, was a non-violent one but, nevertheless, it was an important role because for five or six consecutive days before the abduction, he waited outside the premises of the victim's office and alerted his fellow members of the kidnapping gang by portable telephone that the victim was leaving the premises in his car. Chung's plea of guilty was taken into account when the deputy judge considered sentence but he noted that, while Chung was not a mastermind, the kidnap was carefully planned and though Chung came into the plan at a late stage, he did take part in the rehearsal shortly before the abduction on the hillside in Yuen Long, where one of the organisers played the part of the victim and another played the part of the kidnappers. Chung also knew weapons would be used, and he used a knife to threaten the victim. It was accepted that Chung tried, unsuccessfully, to "back out" before the kidnapping took place.

25. At the hearing of the applications, we were addressed on the different roles played by the applicants and on their personal circumstances.

26. The sentences passed are clearly very much heavier than those in the authorities cited to us. And if Chung were to be handed a sentence of 25 years after trial, what would the mastermind be given ? In our view, having regard to all the circumstances of this very serious case, justice would be served if the sentences were reduced by about one third. We therefore allow the applications for leave to appeal against sentence, treat the hearing of the applications as hearing of the appeals and allow the appeals.

27. Accordingly, Tse's sentence is reduced from 18 years to 12 years, Chung's sentence is reduced from 25 years to 16 years, and Mak's sentence from 22 years to 14 years.