HKSAR v. LEUNG MAN FAI AND OTHERS

CACC 592/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 592 OF 1998

(ON APPEAL FROM HCCC 26 OF 1998)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. There were all together 17 charges. All three applicants were charged with the first two counts.

2. The first was a charge of robbery. Particulars of which were:

"LEUNG Man-fai, LIU Wan-fei and CHENG Ka-ki, on the 8th day of September, 1997 on the Ground Floor, On Wing Centre, No. 39B, Pak She Back Street, Cheung Chau, in Hong Kong, together with a person known as Ah Sai, robbed KWOK Chi-ho of his wallet, cash $700 Hong Kong currency, one Hongkong Bank Visa Card account number 4921-1100-1122-8314, one Chase Manhattan Visa Card account number 4508-8551-0297-2573, one Chase Manhattan Visa Card account number 4508-8551-0291-6166, one Hongkong Bank Superease Card account number 58222165369182288, one Dupont lighter, one Nokia mobile phone, one Nokia mobile phone headset, one Hong Kong Identity Card in the name of KWOK Chi-ho, and one Octopus Card."

3. The second was 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. Particulars of this offence were:

"LEUNG Man-fai, LIU Wan-fei and CHENG Ka-ki, between the 8th and 10th day of September, 1997 on the Ground Floor, On Wing Centre, No. 39B, Pak She Back Street, Cheung Chau, in Hong Kong, together with a person known as Ah Sai, detained KWOK Chi-ho against his will by force, with intent to procure a ransom for the liberation of the said KWOK Chi-ho."

4. A3 was also charged with counts 3 to 11 which related to offences of obtaining property by deception and charges 12 to 17 which were theft charges.

5. The former charges related to the purchase of various goods using the credit cards which had been stolen and the latter to withdrawals of money from ATM machines using these cards.

6. A1 and A2 pleaded guilty to charges 1 and 2 and were sentenced to 6 years imprisonment each on the first count and 7 years each on the second count with an order that 1 year of the first count would be served consecutively to the sentences imposed on the second count thus giving a total of 8 years imprisonment each. They both seek leave to appeal against the sentences imposed.

7. A3 pleaded guilty to counts 3 to 17 and not guilty to counts 1 and 2. After a trial before Beeson J and a jury he was found guilty on these counts. He was sentenced to 9 years imprisonment on the first count, and 12 years on the second. 1 year of the sentence on the first count was ordered to be served consecutively to the sentence on the second count. On charges 3 to 11 he was sentenced to 16 months imprisonment all of which were to be served concurrently amongst themselves but were ordered to be served consecutively to the sentence on the first count. A similar sentence was passed on counts 12 to 17 thus adding another 32 months to the total sentence to be served thus bringing it up to 15 years 8 months imprisonment. A3 seeks leave to appeal against both his convictions and his sentences.

8. When the case was first heard A3 absconded during the trial. He was re-arrested 6 months later. A significant feature of the retrial before Beeson J was that A1 and A2 gave evidence for the prosecution in the trial which was of considerable assistance in securing A3's conviction on the first two counts.

9. From the facts which were accepted by the jury it was clear that A3 was one of the main instigators of these offences. The other man who assumed a prominent role Ah Sai is at large and was never arrested.

10. It would appear from the prosecution case that a fairly elaborate scheme was hatched to relieve the victim Mr Kwok and his family of considerable assets.

11. He was lured to Cheung Chau by A3 on the pretext of taking part in a photographing session. He was taken by A3 to a bungalow which had been rented for the purpose of the crime. On arrival after A3 gave the prearranged signal A1 and A2 emerged with Ah Sai and assaulted the victim and threatened him with a knife and tied him up and blindfolded him. They took his wallet which contained the credit cards, cash and ID card referred to in the charges.

12. The victim was forced to divulge the PIN numbers of the credit cards. A3 used them to obtain the goods referred to in charges 3 to 11 and by using the PIN numbers was able to withdraw the moneys referred to in charges 12 to 17.

13. In addition to this the victim was forced to sign an IOU for $3.5 million while blindfolded.

14. A number of telephone calls were made to the victim's family and it was represented that the victim had incurred huge gambling debts. The Judge expressed the opinion when passing sentence that there appeared to be no truth in this.

15. After negotiations over the telephone the amount demanded from the family was negotiated down to $400,000. As a result of the telephone conversations the victim's family paid $60,000 into the victim's bank account and it would appear that this meant that A3 was able to withdraw more money from the accounts than would otherwise have been the case.

16. The victim was kept in the bungalow for two days. For a substantial part of the time he was bound with ropes. He was also forced to take sleeping pills. This of itself was a gravely aggravating factor. Fortunately it would appear that the victim did not sustain any permanent physical injuries as a result of these offences.

17. He eventually managed to escape while A1 and A2 were away. He immediately made a report to the police at Cheung Chau. When the police officers were going to the bungalow the victim saw A1 and A2 and identified them to the officers who then arrested them.

18. A3 was arrested shortly after this and made altogether five voluntary statements in which he made a number of admissions. At his trial A3 went into the witness box.

19. The main thrust of his defence was an attempt to shift as much blame as possible on to Ah Sai.

20. He said that Ah Sai had informed him that the victim owed him a substantial amount of money and that he thought that all that he would be doing would be to assist in the recovery of the debt. He claimed that so far as his statements were concerned he had been tricked by the police. Indeed he made a number of serious allegations against the officers and this resulted in a successful application by the prosecution to lead evidence of his previous bad character.

21. He claimed that he had not been physically present when the robbery took place and that he had left the scene of the crimes shortly after this. Ah Sai had given him the credit cards and the PIN numbers and his role had been to recover as much as possible of the victim's indebtedness.

22. In A3's amended perfected grounds of appeal there are two main grounds.

23. The first is that the Judge's directions on the burden of proof were inadequate. Mr Grounds who represented A3 submitted that although the original direction given by the Judge had been sufficient this had been severely diluted by subsequent directions which had referred to the necessity for the jury to be "satisfied" in respect of the matters referred to.

24. In the skeleton argument which was prepared the passages complained of are highlighted.

25. What is necessary is to have regard to the summing up as a whole. It is not enough to consider particular passages out of context. When the summing up is read as a whole there can be no doubt whatever that the directions which were given would have left no doubt in the minds of the jurors of the requirement of the prosecution to prove the case against A3 beyond a reasonable doubt. There is no merit in this ground.

26. In the 2nd ground complaint is made that the Judge misdirected the jury on the subject of inferences and how they should be drawn.

27. The main direction in this connection is at p.88 of the record which reads:

"Now, in relation to all the evidence, you are entitled to draw inferences form it, because not everything is going to be a matter of direct evidence. So if you find certain facts proved, you are entitled to infer the existence of other facts, but you can only do that if that inference is the only reasonable inference to draw from the proved facts.

So if from the facts that you find proved there is a reasonable inference to draw against the defendant, as well as one in his favour, then you must not draw the adverse inference. The prosecution says that there is direct evidence to show that the defendant was a major participant in the robbery and kidnap, and they would rely on the evidence of the victim and Ah Sai and Ah Fei."

28. It is contended that if this direction is considered in conjunction with the complaint in ground 1 it is possible that the jury could have obtained a mistaken impression that it was not necessary for the prosecution to prove beyond a reasonable doubt the primary facts upon which the inferences were to be drawn. It was further argued that the situation was not assisted by the fact that the directions relating to the burden of proof did not immediately precede the direction on inferences.

29. There is no requirement that this should be the case. Again as with ground 1 it is necessary to read the directions as a whole. It is very clear that when the Judge referred to facts being proved what she was referring to was facts being proved beyond a reasonable doubt. The jury could have been left in no doubt concerning this. This ground also is without merit.

30. The case against A3 was an overwhelming one. The convictions on counts 1 and 2 were in no way unsafe or unsatisfactory and this application is dismissed.

31. So far as sentencing was concerned the Judge very understandably came to the conclusion that having regard to the jury's verdicts A3 was much more culpable than A1 or A2.

32. He was one of the main instigators of the offences. In her reasons for sentence the Judge described how she arrived at the sentences which were imposed. Clearly the most serious offence was count 2 the kidnapping offence. She referred to cases where the court had adopted a starting point of 15 years imprisonment. Although in some respects this was not the most serious offence of its type it needs to be borne in mind that a robbery took place at the same time and only a small part of the sentence imposed for it was ordered to be served consecutively.

33. One of the points which has been made on this appeal is the way in which the Judge passed the sentences in relation to the different offences. Undoubtedly the robbery and charges 3 to 17 were aggravating factors if they fall to be considered within the kidnapping offence. The fact that the Judge adopted for D3 the relatively low starting point of 12 years indicates that these other offences were not taken into account. In these circumstances it was entirely right that to a considerable extent the sentences imposed in respect of the other offences should be ordered to be served consecutively.

34. Taking a global view of A3's criminality including his prime role in these offences it can in no way be said that the total sentence imposed was in any way excessive or wrong in principle. A3's application is accordingly dismissed.

35. The observations concerning the seriousness of the offences are equally applicable to A1 and A2. Even though these men were not the main instigators of these offences it still has to be accepted that in addition to the kidnapping there was also a violent robbery. No complaint can be made concerning the starting point. Nor can it in relation to their relative youth. They were both old enough to be fully aware of the seriousness of their acts.

36. The position however is not the same as when the Judge passed sentence. At that time A1 and A2 had only expressed a willingness to give evidence against A3. They have now given evidence which was of assistance in securing A3's convictions.

37. They are accordingly entitled to a greater discount than the 33% which is normally given.

38. It is not entirely simple to work out exactly what the total starting point was for these two offences on account of the order the Judge made for a large part of the sentences to be served concurrently. It is further complicated by the fact that the Judge did give these applicants a further year off to reflect the assistance given up to that date and the promise to give further evidence. In this connection it needs to be added that normally no discount can be given in respect of a promise to give evidence.

39. However one approach may be to take the starting point as 13 years which takes cognizance of the part of the robbery sentence which was ordered to be served consecutively. We consider that the applicants should receive a further discount of 1 years imprisonment. The best way this can be achieved would be by ordering that the sentences be served concurrently thus leading to a sentence of 7 years imprisonment for both applicants.

40. We allow the application and treat it as the appeal. The sentences of 6 years imprisonment on 1st count 1 and 7 years on 2nd count remain the same. However we order that all of the robbery count will be served concurrently to the forcible detention charge. To this extent the appeal is successful.