R. v. LEUNG CHI WAH

IN THE COURT OF APPEAL

1994, No. 569
(Criminal)

___________

________________

J U D G M E N T

________________

Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his conviction of forcible detention of a person with intent to procure a ransom for his liberation. He also seeks leave to appeal out of time against the sentence of six-and-a-half years' imprisonment which was imposed by Deputy Judge Bokhary.

2. The alleged detention occurred from 4 to 9 February 1994. The person was Nguyen Ngoc Hung who was referred to as Hung Chai who was the four-and-a-half year old son of Jenny Pham who was the principal prosecution witness.

3. The applicant was known to Ms Pham. He was at the relevant time residing with her in premises at Tai Kok Tsui. There was some dispute over whether they were cohabiting together. It is however common ground that Ms Pham did at the relevant time owe $15,000 to the applicant. According to Ms Pham's evidence when she returned from work as a bar hostess in the early hours of the morning she found that Hung Chai was missing. She learnt that the applicant had taken him to stay with friends of his at Tsing Yi Island. When she asked for the address the applicant said that he would only divulge this to her if she repaid the moneys that she owed him.

4. Ms Pham did not immediately go to the police. According to her evidence she had not fully appreciated that the applicant would persist in his demands that Hung Chai would only be returned if she repaid the moneys. After she went to the police arrangements were made for marked notes to be handed to the applicant and the applicant admitted that he received the money. The applicant made cautioned statements to the police which contained admissions.

5. Issue was taken at the trial as to the voluntariness of these statements but Deputy Judge Bokhary ruled that they were admissible.

6. There were also tape recordings of telephone conversations which had taken place between Ms Pham and the applicant which contained demands along the lines which we have indicated.

7. There is one substantial ground of appeal. This concerns the refusal of Deputy Judge Bokhary to order that the trial be adjourned indefinitely to enable the applicant to trace one of the Crown's witnesses referred to on the back of the indictment Mr Mak Wai Sun. Miss Remedios for the prosecution informed the court that she did not propose to call Mr Mak to give evidence.

8. Mr Mak was one of the people who had been living at the premises with the applicant and Ms Pham. It appeared that he had been cohabiting with another woman who lived there.

9. It had been envisaged that he would give evidence that on the evening when Hung Chai was removed from the flat he had been asked by Ms Pham to act as a baby sitter for her. He would accordingly be able to give evidence concerning the circumstances of Hung Chai's removal from the flat by the applicant.

10. The main problem which had been encountered was in tracing Mr Mak. Miss Remedios gave particulars of the attempts which had been made to trace him but the information concerning his then whereabouts was vague and unsatisfactory.

11. The issue which was before Deputy Judge Bokhary was whether the interests of justice would be served by allowing the trial to continue without the defence having an opportunity of having Mr Mak as a witness. The main factors which had to be weighed by Deputy Judge Bokhary were the chances of securing Mr Mak's presence within a reasonable time and more importantly the extent to which any evidence he may give may be of assistance to the defendant.

12. Mr Walters who represented him at the trial submitted that the main purpose for calling him as a witness would be to discredit Ms Pham's evidence. Mr Mak could shed light on the relationship which existed between Ms Pham and the applicant and on the relationship with the boy.

13. The prosecution contended that Mr Mak's evidence was peripheral to the main issues which were before the jury and could really be considered as only background.

14. It had not been in issue that the applicant had taken Hung Chai to his friends at Tsing Yi Island. There was the evidence on the statements and on the tapes concerning discussions for the return of Hung Chai and also the evidence of the payment of the $15,000 to the applicant which was not in dispute.

15. These would have been the most important matters that Deputy Judge Bokhary would have had in mind in exercising her discretion as to whether or not to grant the adjournment of the proceedings.

16. We consider that Deputy Judge Bokhary was right to exercise her discretion in the way she did.

17. The conviction is in no way unsafe or unsatisfactory and the application for leave is dismissed.

18. No reason has been given for the application for leave to appeal against sentence being out of time. We decided to hear the application de bene esse. While it could be said that the sentence was on the high side we see no grounds for interfering with it. It is relevant to state that the forcible detention of a very young child in circumstances such as the present case must have occasioned grave anguish to Madam Pham. Leave to apply out of time is refused.