HKSAR v. LI CHUN MING

CACC32/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.32 OF 2003

(ON APPEAL FROM HCCC 80 OF 2002)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

Introduction

1. On 14 January 2003, the applicant was convicted by a jury following a trial before Deputy Judge Day of an offence of forcibly detaining a person with intent to procure a ransom for his liberation, contrary to section 42 of the Offences Against the Person Ordinance, Cap.212.  He had originally faced two such counts at trial but was acquitted of the first count and his conviction was in respect of the second of those counts only.  The applicant now seeks leave to appeal that conviction.

2. The prosecution case had been that the applicant, with other individuals, two of whom were his co-defendants at trial, had abducted the victim of the first count (PW1) and detained him in a house in Sai Kung, and then subsequently had, with the assistance of PW1, lured the victim of the second count (PW2) to the same premises where both the victims were then detained for approximately four days.  The underlying motive for all of this was said to have been a gambling debt owed by one or both of the victims.  Various demands for payment of the alleged debt were then communicated to persons associated with the victims in return for the victims’ promised release.

3. One of those persons had contacted the police and the applicant and his co-defendants were arrested.  The applicant was not arrested immediately as he was not at the premises when the police arrived and he left Hong Kong for the Mainland later that same day.  He was arrested on his return to Hong Kong six weeks later.

4. The evidence against the applicant was firstly and importantly that of PW1.  PW1 said that at the premises in Sai Kung after he and PW2 had been abducted, he saw the applicant, who was referred to as “Tai Kau” by the other members of the gang, on one occasion beating PW2 and on another carrying PW2 out of the premises at a time when the gang were intending to take PW2 to the Mainland by sea and, finally, guarding both himself and PW2 at night time during their detention.  PW1 had identified the applicant as this person at a police identification parade following the arrest of the applicant.  PW2 made no identification of any defendant at trial.

5. The second area of evidence relied upon by the prosecution was purely forensic.  The applicant’s DNA was detected on cigarette butts found in the Sai Kung house and in a water bottle also found there.  His fingerprints were found on the inside of the windscreen of a car which had been used to transport at least one of the victims to the premises and later to bring the wife of PW1 to the premises on two occasions during the ransom negotiations.  

6. The third item of evidence against the applicant comprised of the contents of his interview under caution with the police.  During that interview, he told the police that he had never been to the house at Sai Kung and had no recollection of being in the particular vehicle.  Obviously, in the face of the DNA and fingerprint evidence before them, the jury were likely to conclude that the applicant had told a lie to the police at least about never having been to those premises.

7. Mr Wong Man Kit, SC for the applicant, advances three grounds of appeal.  They may be summarised as follows :

(1)    That the judge erred in directing the jury that if they rejected PW1’s evidence of identification of the applicant as being one of those involved in the forcible detention of the victims, there was still evidence in the form of the DNA and fingerprint evidence and the applicant’s lies to the police upon which the jury could convict the applicant.

(2)    That as the admitted facts had described the probabilities of the DNA found on the cigarette butts and from the water bottle as coming from someone in Hong Kong unrelated to the applicant as ranging from “1 in 5.8 to 1 in 56 Billion”, the judge erred in directing the jury that the agreed evidence established that a randomly selected person in the Hong Kong population who was unrelated to the applicant would have a probability of in excess of 1 in 5.8 billion of having the same DNA as the applicant.

(3)    That as the fingerprints of the applicant were found on the nearside of the windscreen and on the inside of it, and that as they could have been placed there while the applicant was standing outside the car through its open passenger window the judge was wrong to direct the jury that it was evidence the applicant had been inside the car at some stage.

The first ground of appeal

8. Mr Wong’s argument in this regard is that the trial judge, in the course of summing up to the jury on the lies told by the applicant during his interview with the police, effectively directed them that if they rejected PW1’s evidence of identification of the applicant as being one of the gang who had abducted himself and PW2, they could nevertheless proceed to consider whether to convict the applicant solely on the basis of the DNA and fingerprint evidence before them, taken in conjunction with the evidence that he told lies to the police during his cautioned interview.

9. In that regard, the judge said this to the jury :

“… If you reject the identification evidence, there is still evidence which you should consider.  There are the fingerprints in the car used by those who brought the 1^st and the 2^nd defendant and Madam Kong to the house.  There is the DNA evidence found on the cigarettes found in the house linked, you were told, to the 3^rd defendant.  There is therefore, if you accept it, evidence linking the 3^rd defendant to the car and to the house.  And although you have no evidence when the fingerprint was left on the car window, or when the cigarette ends were left at the house, you do have the statement he made to the police.  You have a copy of it.

In his statement he denied knowing Mr Lee or Mr Chow, and he said he could not remember what he did on the nights of this incident.  He did not remember if he had ever been in the car, GN 1036, and did not know why his fingerprint was found in the car.  He agreed that he knew Tai Tau Chai and Fei Chai, but said that he had not seen either of them for a year.  He also told the police he had never been to the house in Sai Kung.  If you accept the DNA evidence linking cigarette ends found at the house with D3, then you might conclude that he was not telling the truth when he said he had never been to the house.  If you conclude that he was lying when he said this, you are entitled to consider whether this supports the case brought against him by the prosecution.”

Following that, the judge gave a perfectly proper lies direction.

10. Mr Wong says that the judge should not have left the evidence to the jury in that way because in the event that the jury rejected the evidence of identification of the applicant by PW1, the remaining DNA and fingerprint evidence could never, by itself, have proven that the applicant was at the premises at the same time as the events relating to the detention of PW1 and PW2, or that he as “Tai Kau” participated in those events in the way alleged by the prosecution, and that any lies told by the applicant to the police could never provide the missing proof of those facts.

11. Because the jury acquitted the defendants in relation to the first count (which alleged the kidnapping of PW1), we must proceed on the assumption that they viewed the testimony of PW1 as testimony upon which it was not safe to rely.  It follows from that that the directions as to the remaining evidence against this applicant were of particular significance.  The effect of the directions which we have recited at paragraph 9 above was to tell the jury that the DNA and fingerprint evidence, plus the lie that he had never been at the premises, could suffice to prove beyond reasonable doubt that the applicant was a party to the unlawful detention that was the subject of the second count.  We do not on the facts of this case think that that was correct.

12. There is nothing in the nature of the forensic evidence which would suggest that the applicant’s DNA was left on the cigarette butts or in the water bottle, or his fingerprints on the car windscreen, at any particular time, either during or before the commission of the offence.  This was not a case in which the judge was, in the passages cited, telling the jury that there was evidence to support an identification that was under attack.  The judge was there asking the jury to assume that they had reached a stage where there was no identification at all of the applicant.  What then was the case which the lie was said to be capable of supporting?  No more than that at some time or another the applicant had been in the premises in question.  Given that a lie in itself is not proof of guilt, we are not at ease with the suggestion in this case that there was a case at all in respect of which the lie could provide support.

13. We do not in the circumstances think that the judge should have left the matter as he did, and we are of the view that the identification testimony having been rejected, as we must assume it was, the conviction is unsafe; and accordingly we grant the applicant leave to appeal against conviction and treating the hearing of the application as the appeal, we allow the appeal and quash the conviction and sentence.

14. Given our conclusions we do not need to deal with the remaining grounds of appeal.