HKSAR v. CHOW KA KIN AND OTHERS

DCCC 1047/2020

[2022] HKDC 1079

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1047 OF 2021

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REASONS FOR VERDICT

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Introduction

1.  The 3 defendants are jointly charged with 2 Charges:

Charge 1: False Imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221;

Charge 2: Blackmail, contrary to section 23(1)  and (3)  of the Theft Ordinance, Cap 210.

Particulars of both Charges are the same, alleging that on 12 August 2019 they, together with Hui Ka-lok (Hui)  and Chan Kwok-chung, Michael (Chan), unlawfully and injuriously imprisoned X and detained him against his will (Charge 1)  and with a view to gain for themselves or another or with intent to cause loss to another, made an unwarranted demand of $164,700 Hong Kong currency from X with menaces (Charge 2). All defendants pleaded not guilty to both Charges.

Anonymity Order

2.  Prior to the commencement of the trial, Mr Tracy for the prosecution applied for an “Anonymity Order” to have the identity of the key prosecution witness in this case (X)  from being disclosed to the public.  The prosecution’s position was that the offences involved were serious.  There were allegations of threat and violence made to X. In this type of cases, the victim, X in this case, could be the subject of threat and retaliation.  If granted, the Order should also apply to Y, the mother of X, who would also be called as a prosecution witness.

3.  Mr Davies, for Ds, opposed the application.  He submitted that X was already known to the guilty party since 2019.  Nothing had happened so far.  The ground put forward did not make sense and there was no need for such an Order in this case.  However, he acknowledged that the Order would not cause any prejudice to the defence.

4.  Having considered the submissions and the relevant legal principles[1], I granted the application and made an Order that “The identity of X & Y is not to be disclosed to the public, and no publication or information that may enable them to be identified are allowed”.

Prosecution’s Case

5.  This case arose from a debt-collecting exercise with X being the alleged debtor.  Most of the background facts were not in dispute and contained in the Admitted Facts (P30)  submitted at the beginning of the trial.  A substantial part of the prosecution’s evidence was CCTV footages of various locations where X and the alleged culprits had attended on the day of the incident, viz, 12 August 2019.  The authenticity and accuracy as to date, time and location of these footages, together with the screenshots taken from them, were not in dispute.  The arrest of each D, items seized from each of them, including mobile phones and phone numbers thereof,  were admitted.

6.  The admitted facts also indicated that when D1 was arrested at around 10:46 pm on that day, the mobile phone, an HSBC bank card and the Mainland Home Visit Travel Permit, all belonging to X, were found in the right front trouser-pocket of D1.  Further, in an Identification Parade held subsequently (20.9.2019), X identified Chan to be one of the culprits involved in the incident on 12 August 2019.

7.  Prosecution called a total of 7 witnesses, with X being the star witness.  The other witnesses included PW2 Y, the mother of X, PW3-6 being police officers involved in the arrest of Ds and Hui, and PW7 being a staff member of United Asia Finance Co Ltd (UA), where it was alleged that X had made an application for a personal loan during the incident.

8.  As expected in a case of this nature, the prosecution’s case against Ds relies heavily, if not exclusively, on the evidence of X, who is called as PW1.  His evidence alone lasted for 3 ½ days.

9.  X is now 31 years old, born in the mainland on 19 March 1991.  He settled in Hong Kong when he was 3 years old.  After completing Form 3 education he received further education in vocational training for another 4 years.  In August 2019 he was working as a warehouse attendant at the Airport earning about $600 to 700 per day.  He handed over all his salary to his parents and only retained about $4,000 for his own use every month.

10.  In around July 2019, through a chat group on the internet he came to know a female nicknamed “Ting Ting” who was said to be around 26-27 years old.  On 11 August he invited Ting Ting out for dinner.  They arranged to meet, for the 1^st time, at near the Shangri-la Hotel in Tsim Sha Tsui East. 

11.  Having met up with Ting Ting at around 8:30 pm, they boarded the Oriental Dragon Cruise (“the Ship”)  for dinner.  As it turned out, it was a Casino Cruise which would sail out to the open sea during the evening.  After dinner X wanted to return to the shore but was told by someone that he could not do so and had to stay onboard for the night.  He and Ting Ting were given a choice of taking a room for $100,000 or $200,000 per night, however, they did not need to pay the money if they borrowed gambling chips of the same value and gamble at the casino.  They were told to pay $10,000 in any event.  Having discussed with Ting Ting, X took up the more expensive room, and paid $4,000 cash.  He did not know if Ting Ting had paid the remaining sum as agreed.

12.  After spending some time in the casino at the designated tables, they were left with about $174,000 worth of chips.  At the restaurant he was told by a person, whom he later identified as Chan (a person with tattoo)  that each of them, ie, X and Ting Ting, had to repay $160,000.  Chan wrote out an IOU and told X to sign on it.  Chan also took away the HKID Card, 2 bank cards, the Home Visit Permit and the mobile phone of X.  X was also told to provide address proof and the phone numbers of his family members.

13.  X was then taken to a room by a crew member, whom he later identified to be Hui.  By then he had no more contact with Ting Ting.  He stayed in the room, guarded by Hui, until the morning.

14.  In the morning X was taken by a small boat back to the waterfront of Tsim Sha Tsui after going through immigration clearance.  He was escorted by Chan and Hui all along.  While on the small boat, X asked Chan when he would be released whereby Chan told him that he would be released after he had repaid the debt.

15.  Upon arrival at the waterfront Hui left.  Later, Chan handed over X to 3 other persons and left also.  X described the other 3 persons as unknown person 1 to 3 (UP1 to UP3).  These UPs took X to the Shopping Mall at the Star House.  While in this Mall he was surrounded all the time by the UPs.  One of them told X that X could be released after he had repaid the debt.  Later Chan returned to join the group. They stayed in Star House until around noon. 

16.  During the period of stay in Star House, X was aware that the group, in particular UP2, had contacted his mother, Y, and asked her to repay the debt for X.  X was allowed to speak to Y for a short while but the line was cut once he mentioned the location of his whereabout.  He understood Y said she could not afford to pay such a large amount and could only afford to pay $50,000 to $60,000.  This was not accepted by the UPs.  During the period, one of the UPs also told X that he could be released once he repaid the money, or else he would continue to be taken around until Y agreed to pay.

17.  At around noon, the UPs and Chan took X to the McDonald’s at Whampoa Gardens by taxi.  While there, one of the UPs passed a phone to X.  A man who called himself  “Man Lung” and claimed to be the boss of the Ship and the “big brother” of the UPs and Chan spoke to X.  The man said if X did not repay the debt, he would send 4 knifemen to Whampoa to chop X and cause trouble to his family.

18.  X also said that while inside the McDonald’s he went to the toilet.  There he saw a cleaner and asked for his assistance to call the police but the cleaner did not seem to understand his request.  At that time those UPs who accompanied him to the toilet urged him to come out.  X had no choice and left the toilet.

19.  X was later taken to the KFC, still in Whampoa.  While at KFC UP3 had once pressed his head onto the table and accused him of playing tricks in not repaying the debt, only to be told by UP2 to stop harassing X.  X was made to contact his friends and colleagues to try to borrow money to repay the debt.

20.  The group stayed in KFC until around 7 pm when X was taken to Kowloon City Plaza.  At this location X was handed over to another group of 4, including Hui and 3 persons he had not seen before.  According to the evidence of X, these 3 persons were in fact Ds as they were arrested later in the evening by the police.  During the handover, X heard UP2 telling D1 that UP2 had made applications for personal loans to Promise and UA for $40,000 to $50,000 but the money could only be withdrawn the next day.

21.  After this handover, Chan and the 3 UPs left while Hui and Ds took X to a cyber café in the vicinity of Kowloon City.  Inside the cyber café X asked D1 when he could be released, D1 answered “you repay the money, then you can be released, we can also leave.”

22.  While at the cyber café X was once made to call his mother using hand-free.  When X tried to tell Y where he was, the phone was immediately taken away.  X also said that the group sat around him at the café and 2 of them accompanied him when he went to the toilet.

23.  Later the group took X downstairs and said they would find somewhere to say for the night.  When the group was walking in the streets, a group of police officers appeared and intercepted them.  Hui and Ds were arrested.

24.  X was, understandably, cross-examined at length on the details of his testimony.  X accepted that he had given 1 VRI and 4 written statements to the police from 16 August 2019 to 23 October 2020.  He accepted that there were a number of matters in his testimonies not included or differently described in those statements, e.g., that someone had said he would be thrown into the sea while on the Ship, the details of how he gambled or otherwise while in the casino, or whether his HKID card was taken away from him.  He disagreed that he could move around and was free to leave if he wanted to during the whole period from the Star House to the cyber café.  He agreed that he could not be certain whether it was D1 who told him at the cyber café that he would be released only after he had repaid the debt.  There were other discrepancies on the details of his experience during the whole episode which he readily agreed.  I do not see the need to list them out one by one here. 

25.  The evidence of the mother Y basically confirmed that in the morning of 12 August 2019 she received phone calls from persons unknown to her asking her to repay a debt incurred by X.  She confirmed the relevant phone numbers involved, which were later confirmed to be the phones of Chan and another unidentified person.  She said the callers mentioned that X would be taken to a finance company to obtain a loan if the debt was not repaid.  She said she reported the matter to the police at about noon that day and left it to the police to handle the matter.  However, the caller(s)  did not know that she had done so.

26.  PWs 3-6 were police officers who intercepted the group in the streets of Kowloon City at shortly after 10 pm that day.  They all described that X was surrounded by Ds and Hui when they were walking prior to being intercepted.  Under cross-examination, it was accepted that the group was walking leisurely with no sign of alertness to the surroundings prior to the interception.  None of them had attempted to run away when being intercepted.  PW3 confirmed only the 3 items of X mentioned in paragraph 6 above were seized from D1.

27.  PW7 was an Associate Vice Principal of UA.  He confirmed that an application for a loan of $50,000 was made at 4:01 pm on 12 August 2019.  It was done using the mobile phone of X with X as the applicant.  Since it was a Sunday, the loan, which was approved, could only be withdrawn by the applicant, X, in person at a branch office of UA the next day.  X would also need to provide address proof in doing so.  He also agreed that, with the details given in that application by the applicant, an application for $100,000 would also have been approved.

28.  The phone subscriber details and call records of 7 mobile phones involved in this case were also admitted without objection from the defence.

29.  At the conclusion of the prosecution’s case, there was no halfway submission by the defence.  I ruled there was a case to answer by all Ds on both Charges.

Defence Case

30.  All Ds elected not to give evidence nor to call any defence witness.

Legal Principles

31.  I direct myself that the burden of proof is on the prosecution.  It is for the prosecution to prove each element of the offence against each D on each Charge beyond reasonable doubt.  Ds bear no burden of proof.  They are not required to prove their innocence.

32.  Ds elected not to give evidence or to call any defence witness.  It is their right and no adverse inference would be drawn against them.  However, this means that there is no evidence to undermine, contradict or explain the evidence presented by the prosecution[2].

33.  I also direct myself that I have to consider the case against each D on each Charge independently.

34.  All Ds have a clear record. I direct myself in accordance with the principles applicable to this issue.

35.  There is no dispute by the parties on the elements of the offences involved.  For the offence of False Imprisonment, it consists of the unlawful and intentional or reckless restraint of a victim’s freedom from movement from a particular place[3]. For the offence of Blackmail, the prosecution has to prove (a)  a demand; (b)  menaces was made; (c)  that it was unwarranted; and (d)  that at the time of making the demand the defendant made it with a view for gain for himself or another or with intent to cause loss to another[4]. It included a demand for a debt lawfully owed[5] .

Analysis of the evidence

36.  Since the prosecution’s case stands or falls on the evidence of X, his credibility is of crucial importance. During his 3½ days in the witness box, I have paid careful attention to the contents of his testimony and his demeanour in doing so.  He struck me as person who is simple-minded and gullible.  He gave his evidence in a straight-forward manner.  When being confronted with matters not in conformity with his previous testimonies, he did not try to avoid the issue and readily accepted the discrepancies.  The incident occurred over 3 years ago.  His ordeal started when he was still onboard the Ship and lasted for over 20 hours until he was rescued, so to speak, at around 10 pm in the streets of Kowloon City.  He must have been very tired and exhausted by then.  It is no surprising that his testimonies in Court contained discrepancies when compared with the contents of the statements he had made to the police.  I do not find these discrepancies to be of importance.  Furthermore, his version of events was generally corroborated by the objective evidence, including the CCTV footages, the phone records and the fact that his personal items were in the possession of D1 when the latter was arrested.  I find that X is an honest and reliable witness and accept his evidence.

37.  There was no serious challenge by the defence on the credibility of the remaining witnesses.  In any event, they all testified in a straight-forward manner without exaggeration or avoiding questions put.  I also find all of them to be honest and reliable witnesses.

38.  As mentioned in paragraph 35 above, there is no need for me to decide whether the debt allegedly owed by X was lawfully incurred or legally enforceable.  However, the manner in which X was alleged to have incurred the debt is highly dubious.  It defies common sense to accept that a person with such a background as X would have voluntarily accepted to pay for a room costing $200,000 per night, nor would he have consented to being taken around by different groups of people unknown to him previously to different places during the day with his mobile phone, bank card and travel document being detained by them.  I have no difficulty to find that what X had experienced during the whole incident, starting from the time when he boarded the Ship, was a well-planned and well-executed scheme to extort money from him. 

39.  Mr  Tracy submitted that the prosecution’s case against all Ds was based on the doctrine of “criminal joint enterprise”, that each of them took part in a concerted scheme to unlawfully detain X and to demand money from him with menaces. 

40.  During final submissions Mr Davies raised an issue that the Particulars of the 2 Charges only named 5 culprits, Ds, Chan and Hui.  There was no assertion that other persons were involved.  As such, the conducts involving the UPs could not be used as evidence against Ds as they were not alleged to have been involved in the enterprise as particularized in the Charges.

41.  In reply, Mr Tracy submitted that the prosecution’s stance is that the parts of the incident involving the UPs belonged to an enterprise separate and distinct from those stated in the 2 Charges Ds are facing.  However, evidence relating to the UPs are relevant and admissible, and should be taken into consideration by the Court, in so far as it relates to the credibility of X.  Mr Tracy also reminded me that the Court has a discretionary power to amend the Charges under consideration at any time prior to the delivery of the verdicts.

42.  Given the stance taken by the prosecution, ie, that the enterprise involving the UPs was separate and distinct from those involving Ds, I do not consider it appropriate to exercise my power to amend the Charges to include the UPs in the Charges under consideration, as this would completely change the nature of the prosecution’s allegations against Ds.  I agree that the evidence relating to these UPs could be admitted for the purpose of assessing the general credibility of X only.  The evidence does not form part of the basis for assessing whether the prosecution has proved the elements of the offences as alleged in the Charges against Ds.

43.  With the above observations in mind, the issues fall to be decided are whether each of Ds was a party to a joint enterprise to unlawfully detain X, and another to blackmail him into repaying the debt. 

44.  The nature of the joint enterprise involved in this case falls within the “basic joint criminal enterprise” described by Ribeiro PJ in HKSAR v Chan Kam Shing[6], which “involves the co-adventurers simply agreeing to carry out and then executing a planned crime”.

45.  Ds came into the picture rather late in the day.  They, together with Hui, took over X at Kowloon City Plaza at around 7 pm.  X had no prior association with the group except Hui.  After that, they took X to a cyber café and were eventually intercepted and arrested by the police at shortly after 10 pm in the streets of Kowloon City.

46.  With the stance taken by the prosecution as stated by Mr Tracy, the issues are whether Ds had agreed to carry out a plan to detain X against his will in order to make X repay the debt (Charge 1), and another plan to make the unwarranted demand with menaces in doing so (Charge 2)  when they appeared in Kowloon City Plaza.  What happened to X prior to their appearance did not concern them as that fell under another criminal enterprise.

Verdicts

Charge 1

47.  According to X, he did not know Ds.  X stayed with this group for over 3 hours that evening.  At the time when X was handed over by the UPs to Ds, D1 was told that an application for loan had been made to a financial institution and the money would not be ready until the next day.  After the group took him over from the UPs, they had kept him under guard, sat around him at the cyber café, with 2 of them accompanied him when he went to the toilet.  One of them did tell him that “you repay the money, then you can be released, we can also leave.”  This clearly indicated that the group was there to guard X until the debt was settled by X. X understood that the group was taking him to find a place to spend the night when they were intercepted by the police.

48.  According to the evidence of the arresting officers, the group was walking along the streets leisurely when they were spotted, with X in the middle of the group.  PW4 stated that the group was walking close together, no more than half-meter apart, and X was surrounded like he was being escorted.  PW6 used “5 dots on a mahjong tile” to describe the situation, and made out a sketch (P32) to show what he saw, with X in the middle and being surrounded by Ds and Hui, with space of a person between them. 

49.  It is not in dispute that at the time the mobile phone, a bank card and the Home Visit Permit of X were in the possession of D1.  The call records showed that there had been contacts between Chan, who I am satisfied had been deeply involved in the scheme of things against X, and Ds, in particular D3, before X was handed over to Ds.  

50.  Having taken all relevant evidence into consideration, I am satisfied that X had been detained against his will from the time he was handed over by the UPs to Ds and Hui at Kowloon City Plaza until the police intercepted the group in the streets of Kowloon City.  I am satisfied that the only irresistible inference is that Ds had agreed to detain X until the latter had settled a debt and acted in concert to achieve this.  I find that the prosecution has proved all the element of Charge 1 against each D beyond reasonable doubt.  Ds are each convicted of Charge 1.

Charge 2

51.  According to the evidence as presented, the demand for the repayment of the debt had been communicated to X and Y in the morning at the Star House.  The threats uttered by the man called “Man Lung” was made to X in the afternoon at the McDonald’s in Whampoa.  The loan application was made to UA at 4.01 pm when X should still be in Whampoa.  All these occurred when X was under the custody of the UPs.  Ds had yet to come into contact with X.

52.  The evidence did not show clearly whether any of the Ds was aware of the details mentioned in paragraph 51 above.  It is not clear whether any of the Ds was aware of when and how the demand for repayment was made to X, whether any threat had been put forward, or if so the nature of the threats, and under what circumstances the application for the loan to UA was made. 

53.  As such, the evidence is not sufficient for me to find that Ds had agreed to join a criminal enterprise involving the making of an unwarranted demand, coupled with menace, to X.  Ds are each acquitted of Charge 2.