HKSAR v. LEE KA FAI AND ANOTHER

DCCC 358/2017

[2018] HKDC 214

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 358 OF 2017

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Reasons for Verdict

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1.  The two defendants face a remaining charge of blackmail and one of false imprisonment. I have determined that the evidence I have heard does not support these charges to a criminal standard, so they will both be dismissed as against the defendants.

2.  My reasons for this are as follows.

3.  These charges arise out of collection of a debt incurred by PW1.  She had lost a large sum of money gambling in Macau.  On her return to Hong Kong, she was met by the two defendants, who were responsible to collect the monies owed.

4.  The prosecution allege the two defendants told PW1’s husband that PW1 would stay with them until the money was paid - only then would she be released - and that PW1 was then held by the defendants until PW2, her husband, could arrange funds for her release, and that during her detention she was not free to leave and did not consent to be so detained.

5.  The defence case, as put to the witnesses, was that there was no threat to detain PW1 until the monies were paid, no such threat was ever uttered by either of them, and that PW1 accompanied them throughout voluntarily in order to try and raise monies through moneylenders. Furthermore, that PW1 was afraid to return home due to her husband’s anger and violent treatment of her.

6.  The issue is therefore primarily one of fact, to be determined by an assessment of the witnesses’ credibility and reliability.

7.  The evidence for the prosecution case consisted of the received evidence of PW1 and PW2, the husband and wife, together with a set of admitted facts.

8.  On 7 March 2017, PW1 had commenced a gambling spree. She started with mah-jong in Hong Kong, losing money in the process.  In order to recoup her losses, she went to Macau to gamble.  She predictably continued to lose money.  She was able to borrow money in Macau.  However, she eventually lost all this money as well.  Her lenders gave her some money to return to Hong Kong.

9.  On arrival in Hong Kong, she was met by the two defendants.  They were responsible to collect the debt that PW1 stated was around HK$140,000.  The party of three remained for some time in either McDonald’s or Kentucky Fried Chicken.  The party of three eventually then went to PW1’s home.

10.  When they arrived, PW2, her husband, was present.  There was discussion about repayment.  However, PW2 said he had no money to repay.  The situation was highly confused, with PW2 appearing to take drugs by inhalation through a straw, whilst PW1 was pushed by him and made to get on her knees and beg for money.

11.  Thereafter, PW1 and the two defendants left to go to a park and then to a number of money lenders in San Po Kong and Mong Kok.  None of these money lenders were prepared to extend finance to PW1.

12.  Later that day, a hotel room was taken for the night in Cameron Road, Tsim Sha Tsui.

13.  The next day, during the day, a further hotel room was rented. 

14.  That evening, following various phone calls, PW2 agreed to a repayment.  The two defendants and PW1 then returned to her home. The police were waiting and the defendants were arrested. 

15.  As far as the remaining blackmail charge is concerned, that allegedly occurred when PW2 said that the defendants said his wife would be released when the debt was paid.

16.  The false imprisonment was based on various utterances of PW1 about why and how she went off with the two defendants and stayed with them.

17.  The chronology of the events was not in dispute, nor was the fact that PW1 owed a large sum of money and that the two defendants were charged to collect that sum from her.  What lay in dispute was what may have been said to PW1 and PW2 to ensure that the money was repaid.

The charges

18.  The charge of blackmail requires the prosecution to prove to a criminal standard that a demand be made that is unwarranted and accompanied with menace and that, at the time that it was made, the defendants made it with a view to gain for themselves or another.

19.  The charge of false imprisonment requires the prosecution to prove the restraint of the victim’s freedom of movement from a particular place and that restraint is unlawful, intentional or reckless or without the victim’s consent. 

20.  Proving a case to a criminal standard requires proof be made beyond reasonable doubt.

21.  As far as the discussion of the evidence is concerned, PW1 had said after meeting the defendants they went to McDonald’s until dawn.  They had eventually left to go to her home to meet her husband so that he could make repayment.  PW1 could not recall what was said to her husband.  Her husband said there was no money for repayment. 

22.  She said that she was scared about what the defendants would do to her if there was no repayment, but she could not point to anything that was said to make her feel this way.  In fact, she said her husband told the defendants to take her away and she said the defendants took her away.  PW1 said she “had no choice but to follow him”.  “It was these two”, meaning the defendants, “took me away by taxi.”

23.  PW1 said that they had stayed in a hotel room overnight.  When asked why she did this, she replied, “He said I would be allowed to go back after my husband made the repayment.”  She did not leave as she had nowhere to go and the defendants knew where she lived.

24.  The next day at the second hotel, she said, she had asked the defendants when she could go back and she said, “He said, ‘Wait until your husband has raised the money.’”

25.  PW1 was asked in examination-in-chief whether she had stayed voluntarily in the company of the defendants.  She replied, “He said he was to take me away if my husband did not give him money.”

26.  In evidence, she did agree that when the party first went to her home, her husband had taken drugs - “Something like white sugar,” she said.  Her husband had told her to go with them.  Her husband had pushed her several times and she had knelt down to beg from him. 

27.  She agreed she had not been accompanied when she went into the credit companies to borrow money.  It was put clearly to her that she went with the defendants voluntarily.  She indicated agreement with this proposition.  She also agreed that she had agreed to go to the hotel.  She said that she was afraid of going home to her husband.  She also agreed that no one had made a threat to her during the two days she was with the defendants.

28.  She was specifically asked by the prosecution why she had not gone home during this time to sleep or change clothes.  Her reply was that it had been because she was afraid of her husband.

29.  PW2 gave evidence about what happened when the two defendants came to his home with his wife.  He confirmed that they had asked for repayment of the monies, that he became emotional and said he could not repay.  He said in respect of one of the unnamed, unidentified defendants that “He gave me a phone number.  He told me to raise money.  After I raised it, I would call him.  Then he would release my wife.”  Then he said, “They took my wife away.”  He did add though, that he had no idea if his wife had in fact left voluntarily.

30.  PW2 did deny that he had taken drugs that day.  He said it was an allergy medicine that he had sniffed through a straw.  He did agree that he had used a straw to sniff up the substance.  In fact, a video was produced taken on what must have been a mobile phone showing him sniffing up a substance with a straw while his wife kneeled on the floor begging.

31.  In submission on the charge of false imprisonment, the defendants said that PW1 had in fact been unable to provide evidence that she had ever not consented to remain with the defendants.  In fact, she had said that she had been with them voluntarily. 

32.  Furthermore, the surrounding evidence supported this.  She had been on her own when she visited the credit companies and at other times.  She had a mobile phone with her.  She had in fact been given a charger.  She had sent WhatsApps to her son.  Her given reason for not returning home was fear of her husband, that, whatever might have been said to her, she was willingly with the defendants whilst they all sorted means by which the debt might be repaid. 

33.  It was also submitted that a person can be compelled by persuasion to remain or go to a particular place without, in fact, being subject to restraint or deprived of their liberty.

34.  As to the blackmail charge, it was said that PW2 was simply an unreliable witness.  He had been untruthful about whether he took drugs at the time.  There was video evidence of him consuming drugs.  At minimum, this evidence could lead to the conclusion that it was at least possible that he had taken drugs at the time. 

35.  Furthermore, he had an admitted record of drug abuse.  He had been emotional and acted violently towards his wife.  His wife had not heard the threat alleged.  PW2 himself had admitted that he found it difficult to remember what had been said. 

36.  In the defence case, neither of the defendants gave or called any evidence.  No adverse inference can be drawn from that decision.

37.  As far as the resolution of this issue is concerned, I consider the charge of false imprisonment is not sustainable on the evidence.  PW1 was never able to say categorically that her time spent with the two defendants was non-consensual.  Particularly her concession that she remained with them voluntarily means that the element of lack of consent required to prove the charge could not be established to a criminal standard. 

38.  Therefore, this charge must be dismissed.

39.  In respect of the remaining blackmail charge, the surrounding circumstances of the alleged utterances by one or other of the defendants are troubling.

40.  The witness appears from video evidence to be consuming drugs.  His denial of this and his explanation it was allergy medicine appear fanciful.  He conceded the scene was confused and he had difficulty remembering.  His wife could not recall these words being said at this time despite being present.

41.  In summary, I found that both the first and second prosecution witnesses were not reliable witnesses to a criminal standard.  They both had large failures of recall, but this did appear to be unfeigned, but it is surprising, given the basis on which the prosecution originally opened the case.  One cannot properly fathom their motives for giving evidence in the way they did, but I am simply left with the position their evidence cannot support the criminal charges brought on the basis of whatever they had said earlier.

42.  What I heard in evidence from both witnesses was not capable of sustaining to a criminal standard the charges which had been brought.

43.  Therefore, the second charge as well as the first charge stood to be dismissed, and I do dismiss them.