HKSAR v. LO TAK CHEONG

CACC 530/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 530 OF 2000

(ON APPEAL FROM HCCC 159, 170 & 261 OF 2000)

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J U D G M E N T

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Hon. Seagroatt, J. (giving the judgment of the Court):

1. This Applicant seeks leave to appeal against his convictions for forcible detention and false imprisonment before Beeson, J. and a jury on the 15 December 2000 after a three-week long trial. His co-accused, his brother, was acquitted. Two other Defendants had pleaded guilty on an earlier occasion.

2. The essence of the prosecution case was that the Applicant, together with his brother and others, kidnapped a man by the name of Yuen Chi-Kwong and forced him, and others including some of his employees, into the back of a box truck, owned by the Applicant. Before the actual kidnapping took place, the victim, Mr Yuen, had been sitting in the Applicant's motor car discussing the Applicant's grievance against Mr Yuen concerning the burning of the former's petrol lorry parked at or near Mr Yuen's premises. They knew each other well over many years. That much is common ground. The truck was driven off with the victims inside. Mr Yuen was beaten up sustaining amongst other injuries a fractured leg. He and some others were blindfolded. A ransom was demanded from his wife by telephone. Others were released at about 7 pm on that day, 7 January 2000, but he was not able to regain his liberty until after 11pm.

3. The evidence against the Applicant consisted of visual and voice recognition by Mr Yuen (PW1) and voice recognition by Madam Lam (PW6), Mr Yuen's wife. Two other witnesses, a Mr Wong Chung-Mau and a Mr Ho Kam-Wan, who were in the truck, purported to identify the Applicant by his voice but in cross-examination said that they were not sure. Additional evidence against the Applicant consisted of an alleged oral admission by him to the arresting officers, in the following terms:

"We kidnapped Yuen Chi-Kwong merely to get back the loss sustained in the accident in which he burned down my petrol station."

There was also agreed factual or circumstantial evidence in the form of a mobile phone found in the possession of the Applicant, and records showing that the phone had been used on seven occasions between 5.50pm and 6.50 pm to make calls to the mobile phone of Madam Lam, the victim's wife. On hearing the tape recordings of these calls Madam Lam said she recognised the Applicant's voice. Also found in the Applicant's possession on his arrest, were the keys to the yellow box truck owned by the Applicant. They gave the police access to the truck itself.

4. The Amended Perfected Grounds of Appeal settled by counsel, consist of eight pages and seem to be based upon alleged misdirections in the summing up by the trial judge. It is not necessary to go into a detailed consideration of that document. Suffice it to say that it is difficult to distil from it precisely what is alleged on behalf of the Applicant. There is also an eight-page written argument submitted by counsel, Mr Christopher Grounds who has appeared before us on this application. Regrettably we found it equally difficult to follow. Finally Mr Grounds submitted a document entitled "Supplemental Points" on the day before the hearing. That is equally convoluted although the complaint, such as it is about the trial judge's "material factual misdirection", is clear enough. We shall refer to the nature of that specific allegation later.

5. Insofar as this application is based in part on a contention that the trial judge failed to follow the "Turnbull" guidelines and give a proper direction to the jury in accordance therewith, (see ground 1) there is subject to one aspect with which we will deal later no substance. The judge gave an otherwise impeccable "Turnbull" direction. [R v Turnbull and Others 1997 Q.B. 224; 63 Cr. App. R 132; Archbold 2003 edition §14-2 to 14-10 and § 14-17]

6. During the course of the hearing it emerged that the real cause of complaint was two-fold. One was that the judge failed to direct the jury that they must not or could not place any reliance upon the identification evidence of Mr Wong Chung-Mau (PW2) or Mr Ho Kam-Wan (PW5). The other was that since the jury acquitted the second Defendant they must have found the identification evidence of Mr Yuen (PW1) and Miss Lam (PW6) in relation to him unreliable, and therefore should have found their evidence in relation to this Applicant equally unreliable. In these circumstances it is argued that their verdicts were inconsistent and that they should have acquitted the Applicant as well.

7. We propose to deal firstly with the ground in relation to the two witnesses referred to as PW2 and PW5, Mr Wong Chung-Mau and Ho Kam-wan. Both were referred to at an early stage in the summing up at page 28 R.

"Mr Ho and Mr Wong referred to his (first accused i.e. Applicant) voice but they, when they are pushed, say that they might be mistaken about whether or not that was his voice."

There is no exception taken to that, indeed there could not be. The judge proceeded to deal with their evidence on an individual basis starting at page 34 P in the case of Mr Wong Chung-Mau.

8. Having correctly summed up his evidence-in-chief as to identification of the Applicant and the circumstances in which he made that voice identification, the judge reminded the jury that he said

"that he could not be sure of the voice" adding "so you may not find his evidence particularly helpful in that regard." "He said he found it difficult to recognise people and that the same applied to recognising voice and he agreed that he therefore could be mistaken about whether or not he had heard the 1st accused's voice."

The topic which PW2 had heard spoken about was compensation. That subject matter was not challenged. This of course as the jury was well aware, was what the Applicant agrees he was talking about to Mr Yuen in the car before Mr Yuen was forcibly removed into the box truck.

9. Mr Grounds' complaint was that it was not sufficient for the judge simply to point out that the witness agreed that he could not be sure, but should have gone further and told the jury that they must ignore it and that it could not be regarded as supportive of the identification evidence of Mr Yuen (PW1) and Miss Lam (PW6).

10. In relation to Mr Ho's evidence the position was somewhat different. Like Mr Wong, Mr Ho had not identified the Applicant on the identification parade. There was however, as is apparent from the transcript of the evidence of Mr Ho, a good deal of confusion in his mind as to what was required of him on that parade. He appeared to be saying that although he recognised the Applicant's voice in the box truck and knew the Applicant through previous contact, he did not pick him out on the identification parade because he had not actually seen him in the box-truck, he having been blindfolded. He understood from what was said to him before the identification parade that he was only to identify any person whom he had actually seen on the occasion of the kidnapping incident. Because he had not seen the Applicant on that evening he did not identify him on the parade. The Police Officer in charge had given evidence to the effect that the position concerning voice identification had not been fully explained. The witnesses were not told that they could ask anyone on the parade to speak. The judge explained this confusion, to the extent that it could fully be explained. What she did not do was remind the jury that Mr Ho had said at the end of his evidence that he could not be sure that the voice he had heard was the voice of the Applicant.

11. Neither defence nor prosecution counsel noticed this as neither mentioned the omission to the judge so that she could address that matter. However at the outset when dealing with those witnesses who had identified the Applicant, she had clearly said, as we have pointed out earlier, that Mr Ho (as well as Mr Wong) said he might be mistaken about whether or not the voice he heard was that of the Applicant. It may well be that both counsel having already heard that, did not regard the fact that the judge had not repeated it as important and therefore did not think it necessary to draw the judge's attention to it.

12. The last of the Turnbull directions summarised in Archbold 2003, at §14-17 (page 1323) is:

"(h) identify evidence which might appear to support the identification but which does not in fact have that quality."

It is correct that at the outset in general terms the judge had indicated that both witnesses had conceded that they might be mistaken on their identification of the Applicant's voice. She repeated this in the case of PW2 but not in the case of PW5. What she did not do was to direct the jury that by reason of the witnesses' uncertainty on this voice identification they could not use such evidence as supportive of the identification evidence of PW1 and PW6 (the victim and his wife.) We think that in that respect she did not follow the full requirement of that part of the "Turnbull direction". Had she done so she would of course have been entitled to draw the jury's attention to the fact that the topic of the conversation which they had both heard, and which was unchallenged, namely the compensation for the burning of the lorry, was a topic which the Applicant had agreed he had been discussing with the victim (PW1) in the car before the arrival of the truck and subsequent kidnapping. They might have regarded that topic as of assistance in determining to what extent the evidence of PW2 and PW5 on the voice identification was supportive. Notwithstanding this however, we think the omission to deal with the effect of the witnesses' uncertainty as to identity amounted to a material misdirection.

13. The question then arises as to whether we should apply the proviso under section 83(1) of the Criminal Procedure Ordinance which enables the Court:

"notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred."

The jury had clear evidence of identification by the victim and his wife together with other direct and circumstantial evidence including the oral admission by the Applicant, the possession of the telephone and the record of the calls made from it to PW6 and his possession of the key to the box truck which the police used to free the victim, coupled with the Applicant's admitted presence at the scene in his car with the victim, discussing compensation for the burning of his lorry at the very time that the kidnappers arrived. Taken together this was overwhelming evidence of the Applicant's involvement. We are satisfied that the convictions were safe and proper ones and that no miscarriage has occurred.

14. The second ground of appeal relates to the jury's acquittal of the second Defendant. It is clear that the evidence of identification by the victim and his wife of the second Defendant's voice was not as strong as that of the Applicant's voice. Neither had known him prior to the incident for as long a period as they had known the Applicant. Furthermore there was considerable other circumstantial evidence against the Applicant which the jury were entitled to consider as supportive of the evidence of identification of the Applicant, quite apart from the evidence of his oral admission. The circumstantial evidence against the second Defendant was less strong and some of it was explicable on an innocent basis. Mr Grounds entered into the realms of speculating how the jury might have differentiated between the evidence against the two. His argument advanced lacks logic and there is no substance in this point.

15. Finally there is the supplemental point raised by reference to page 36(F) of the transcript of the summing-up. The judge, referring to the evidence of Mr Ho, said:

"He (Ho Kam-wan) said that Ah Cheong helped the men take off the bonds on the hands."

The witness Mr Ho in his evidence said it was Ah Chung, one of those abducted. There is a subtle difference in spelling and no doubt in tone in pronunciation. Neither counsel for the defence nor prosecution picked this up at the time, if indeed it was apparent that a different person had been referred to, which we doubt. It is more than likely to have been simply an error in transcription. The jury cannot have been in any doubt about the matter because Mr Ho had made it clear that he had not seen (because he had been blindfolded) Ah Cheong (i.e. the Applicant) at the scene. Indeed that had been the whole point of his evidence and the confusion about his understanding of the identification parade and voice identification. We are quite satisfied that the judge intended to refer to Ah Chung and the jury would have understood her to do so. This was in our view a point which ought never to have been raised.

16. Having regard to the matter raised under the first ground, we shall give leave. Treating the hearing as the appeal, we dismiss the appeal having applied the proviso.