R. v. WONG CHI WAI

IN THE COURT OF APPEAL

1996, No. 727
(Criminal)

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J U D G M E N T

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

1. On 12th December 1996 the applicant, Wong Chi-wai, was convicted after trial by Her Honour Judge Chua in the District Court of the offence of false imprisonment. He was sentenced to a detention centre. He was acquitted of offences of assault occasioning actual bodily harm and theft.

2. The facts stated briefly are as follows. The victim, Chong See-cup (PW8) owed money to one Li Hing-ki who was the 1st defendant tried with the applicant. The 1st defendant through a female Chan Ka-yee, who was the 2nd defendant, lured PW8 to a flat in the evening of 20th January 1996. They got there at about 10 o'clock that night. There were three others present - the 3rd defendant and the applicant who was the 4th defendant and his girlfriend, DW1.

3. The Crown case was that they held the victim against his will overnight until next morning, threatening him with a knife and assaulting him in an effort to force him to pay the debt. They got him to make telephone calls to his family for the money but the family were away in Taiwan. They forced him to write two IOUs. They tried to withdraw money from his bank account with his ETM card and PIN number which they got off him. They even made him identify wealthy friends and provide information about them for the purpose of robbing them. The next morning the 1st defendant tried to take PW8's car but it had been immobilised by an anti-theft device. They then left the flat, threatening the victim with a knife and took him to a nearby restaurant. The victim tried to get away by hopping into a taxi but he was dragged out, assaulted and threatened. At the restaurant the 1st defendant took the victim's wallet, removed $1,800 and the victim was later allowed to leave.

4. The applicant now seeks leave to appeal against his conviction.

5. Before we come to the grounds of appeal, it is helpful to indicate the nature of his defence. He first of all made a statement under interview to the police. In it he admitted that he knew someone was going to be called to the flat and efforts made to press him to pay debts. He also admitted that the door was padlocked. He admitted that in the course of the events, the knife was passed to him. He held it and later put it down on a sofa. I need not refer to other details in his statement. But at his trial, he gave evidence, and his girlfriend gave evidence on his behalf. Their evidence was that they went to the flat to do stocktaking on clothing they were going to hawk for the 1st defendant. They merely witnessed the fight between PW8 and the 1st defendant. They denied that the door was locked or that there was a knife. With that very short outline of the facts and his defence, we turn to the perfected grounds of appeal, of which there were three:

"(1) That the learned trial judge in her reasons for verdict failed to direct herself on the applicant's previous good character when considering his evidence as opposed to the previous bad character of the victim who had convictions for offences of dishonesty. In the special circumstances of this case, this omission amounted to a material irregularity."

In pursuing that ground, Mr Peter Lavac, who also appeared for the applicant below, refers to PW8's previous bad character. That can be seen from the following passage from the judge's reasons for verdict:

"In examining carefully this witness's credibility, I had regard to the fact that in 1983 he was put on probation, with no conviction recorded for an offence of dishonesty - burglary. There are three other convictions in 1989, notably the one in May of that year for making a false report of a commission of an offence. In July the same year he was convicted of theft, uttering a forged document and perverting the course of public justice. In 1989 this witness was 22 years old. There have been no convictions since then."

So, Mr Lavac is quite right in saying that PW8 was a witness whose character reflected badly upon his credibility. That was not all because the judge then went on to refer to some discrepancies revealed by cross-examination. She went on:

"The most significant one relates to the knife and when it first made an appearance. In evidence-in-chief, having said both D2 and D4 held the knife at various times, he was asked when it appeared. This is what he said. After the blow to his head, D2 "... took it out from a room. He rushed out of it and came with a knife as if he was going to chop me with it."

The judge also referred in detail to questions put to PW8 in his cross-examination. We do not find it necessary to read those but the judge made specific reference to this part of PW8's evidence:

"'The other man holding the knife therefore could not be D2.' He then said it was D4. At this point he was plainly flustered and said, 'D2. No, D3. No, D4.'"

6. To return to Mr Lavac's submission, plainly the judge did give consideration to PW8's character the nature which she plainly recognised. Mr Lavac submits that this was in massive contrast to PW4's character. He submits that PW4 was of previous good character and that in the circumstances this cries out for a direction on the applicant's previous good character, notwithstanding the authority of R v Fok Tin-yau [1995]2 HKC at 450 where Power V-P said this:

"Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved."

Mr Lavac contends notwithstanding that very clear statement of the legal position, a direction should have been given. In support of that he relies upon R v Wong Chi-wei and anor [1994]1 HKCLR 94. We do not propose to refer to the passage he took us to, which plainly, in our view, does not alter that position. Nor in the end did Mr Lavac suggest that it did. He contented himself merely in saying that there was a recognition that in some cases it might be incumbent upon the court to give a direction. That does not assist us in this case. The question here is whether the judge give due weight to the applicant's good character. The care with which she addressed the matter of PW8's character, dealing with it with almost over three pages of her reasons, far from raising any doubts about her not having addressed the matter, persuades us that she could not have failed to do so. Moreover, here there was not simply a matter of the applicant being a person of good character. He had given one version of affairs to the police in his interview at which his father was present; but in court he gave a diametrically opposite version as to essentials. That could not but have the gravest implications for his credibility. It is in that light that the claimed failure of the judge to address the matter of the characters of PW8 and D4 has to be considered. To sum up the matter, there was no duty upon the judge to give reasons and her judgment leaves us in no doubt that she must have considered the matter fully. We find no merit in this ground.

7. Ground 2 was in these terms:

"2. The learned Trial Judge failed to resolve major and crucial discrepancies in the victim's evidence as to who actually had the knife and how the knife came to make its first appearance on the scene. These discrepancies were a prominent issue in the trial and the closing submissions. The non-resolution of these discrepancies is unfair or unjust in all the circumstances."

Mr Lavac took us to several passages in the reasons for verdict. Again, we see no reason to set them out. Indeed, we have already referred to a part of them in a passage already read out. What is of significance is whether or not there was a knife and whether it was used. Where it happened to come from was not a matter of significance nor, as far as we can see, in issue. In his interview statement, upon which Mr Lavac seems to rely, the applicant plainly admitted that he had the knife; it was given to him; he held it and held it at a time when the victim was being assaulted and then placed it on the sofa.

8. Mr Lavac also suggests that this point somehow gives rise to a lurking doubt. We are not persuaded that anything of that sort arises in this case. The fundamental question that arises from Mr Lavac's submissions is whether D4 participated in the detention of PW8 and the attempts to get him to pay up. The judge was satisfied that he did. There was ample evidence upon which she was entitled to come to that conclusion.

9. The third and last ground was that:

"3. The learned Trial Judge insufficiently addressed the material issues in this case including why she disbelieved the evidence of the applicant and the supporting evidence of his girlfriend that he did not participate in the detention of the victim."

10. Now, it is true that the learned trial judge did not specifically list her reasons for rejecting the evidence of D4, the applicant and his girlfriend DW1. However, it is plain from the way she approached the evidence that she did reject their evidence and the reasons are not far to see when the matter is viewed in a realistic way. One does not have to look for reasons why she had rejected DW4's evidence beyond the conflict between his evidence and his statement, not to mention the circumstances. He suggested that he was an innocent bystander, although he was present there from 10 o'clock that night right through to the next morning. Furthermore, the judge accepted PW8's evidence that he was punched by the applicant. We do not think the learned trial judge can be faulted for not having listed reasons why she rejected the testimony of D4 and DW1, or that their absence in the form of some list is of significance. We repeat she is not required to give reasons.

11. At the end of the day, having regard to all the evidence and the circumstances, we can find no fault with the judge's decision; or indeed, the way in which she reached it. She was clearly entitled upon the evidence and circumstances to find that D4 had participated in detaining PW8. We find no merit in the grounds of appeal and we refuse the application for leave.