R. v. LAW FU YING and Another

IN THE COURT OF APPEAL

1994, No. 126
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The 2nd and the 3rd defendants seek leave to appeal against their convictions. The charge against each of these applicants is identical, that is to say, forcible detention of a person with intent to procure a ransom for her liberation. This is a case of alleged kidnapping. The facts placed before the jury are that these two applicants together with others kidnapped a young child on 17 December 1992. The elder sister of the victim immediately notified their father after the abduction. The victim was taken to a hut and subsequently to a petrol station. At the petrol station, the telephone number of the victim's father was obtained from her and contact was made. A demand of a ransom was made of the father, which was finally reduced from $10 million to $3 million. The ransom was in fact paid. After the telephone conversation, the victim was removed to others premises where the victim was taken upstairs. She was kept in those premises for a while. Then she was taken by car to a place where a taxi was boarded. The victim was thereupon taken to the vicinity of Yaohan Department Store. The father was directed to go from place to place. After he deposited the ransom money as instructed, he was circling around in the area, hoping to find his abducted daughter. The victim was seen in the street with one of the applicants and the father took over the victim. The driver of the car, not one of the applicants, was apprehended. The 2nd defendant was arrested in the same evening. The 3rd defendant was caught, as it were, by the police 4/5 days later on 22nd December 1992 at the ferry pier in Central. The 2nd defendant was identified by the father and the elder sister at different identification parades. The 3rd defendant was identified by the victim at another identification parade. Both applicants made statements to the police. After voir dire, those statements were admitted by the judge as having been made voluntarily. Video tape was also admitted against the 2nd defendant. The 3rd defendant elected to give no evidence. The 2nd defendant claimed that he and the 3rd defendant were elsewhere at the time of the offence.

2. The 3rd defendant is represented by Mr Grounds. First, in Ground 1 it is submitted on his behalf that the judge failed to put the 3rd defendant's case fully to the jury. It is complained that discrepancies in the case were not outlined for the benefit of the jury, particularly those relating to the evidence of Sergeant 20292 , PW18. As against the 3rd defendant, the jury heard the evidence of the victim but it had to be corroborated before it could be relied upon. It is submitted that the judge failed to direct the jury to acquit unless they could "place weight upon the 3rd defendant's statements under caution". That is Ground 2.

3. The jury was clearly warned about the need for corroboration. The judge also directed the jury that the three statements given by the 3rd defendant were the only evidence capable of corroboration. Under Grounds 1 and 2, counsel presses upon this court that the evidence and reliability of Sergeant PW18 was crucial. The judge did not particularise the discrepancies. Granted that evidence of Sergeant PW18 was not specifically addressed, the jury was, however, told to have regard to the salient features of the events which were questioned by counsel. It is submitted by Mr Grounds that since the 3rd defendant gave no evidence and since there was no evidence of any physical injuries sustained by him, there was all the more the need for summing up carefully the discrepancies instead of simply making sparse references in the summing up. The judge directed the jury that they had to be sure that the defendants made the statements and they had to exercise caution in their deliberation as to whether or not what was said in the statements was true. The judge thus assisted the jury on the weight to be given to the statements in the case. He reminded the jury of the accusations raised on behalf of the defendants, particularly the alleged misconduct of as well as ill-treatment and fabrication of the confessions in the statements by the police. In the circumstances, we find the judge's directions sufficient and his handling of the 3rd defendant's case adequate. Ground 1 therefore fails.

4. We pass then to ground 2. It is submitted that the judge was wrong in law in failing to direct the jury that they should acquit the 3rd defendant unless they found in his statements corroboration of the evidence of the victim. Ground 2 is, in effect, part of ground 1 and for the reasons we give it falls with it. Ground 1 (3), so counsel informs the court, does not stand on its own. In the manner we have referred to, the judge properly directed the jury on how the statements should be considered. There is no substance in ground 1 or ground 2.

5. For ground 3 (1) and (2), it is the 3rd defendant's case on appeal that the judge, in effect, told the jury that a lie could prove guilt. Up to the sentence in the judge's summing up and I quote: "an innocent man who was elsewhere all by himself at the material time fearing that if he tells the truth he may not be believed, might sometimes invent a more plausible story", Mr Grounds concedes his directions as impeccable. The complaint lies in the question immediately following and I quote again: "This can happen and that is the reason why the mere fact that a false alibi does not necessarily mean the person is guilty of the crime with which he is charged". Could this sentence adversely affect the 3rd defendant? Clearly this following sentence is exclusively referable to the sentence before it. This is reasonably clear from the word "This" at the beginning of the following sentence. That being so, the sentence under complaint cannot, in our view, make a dent to what is otherwise conceded as a perfect direction. It adds nothing more to what had gone on before, and no complaint is directed at the preceding sentence. That last sentence could not, therefore, be understood to be a suggestion to the jury that the lies from the rejected alibi could provide evidence of guilt. Ground 3(3) & (4) may be taken together: it is submitted on behalf of the 3rd accused that a proper direction on lies ought to have been given to the jury because of the lies told in the 2nd defendant's alibi evidence, which included the 3rd defendant. The 3rd defendant did not himself give evidence. He did not raise an issue of alibi. He told no lies. The alibi evidence of the 2nd defendant was rejected. There was no question of lies told by the 3rd defendant who was simply unable to take advantage of the rejected alibi evidence provided by the 2nd defendant. There is no merit in ground 3(3) & (4) of the Grounds of Appeal. Taking the case as a whole, bearing in mind the straight forward allegations against the 3rd defendant in a relatively simple case of kidnapping, we do not find his conviction unsafe or unsatisfactory. His application for leave to appeal against his conviction is therefore denied.

6. The 2nd defendant acts in person. He has elaborated on his home-made Grounds of Appeal. He submits that counsel for the prosecution invited the jury to compare all the defendants' cautioned statements and rely on them globally to convict the defendants including himself. But this is not what the trial judge did. He directed the jury to consider the case of each defendant separately. Moreover, he told the jury that the confessional statements given by each accused are to be considered as against that particular accused alone. There is no merit in ground 1 of the Grounds of Appeal of the 2nd defendant.

7. Grounds 2 & 4 could be taken together. The 2nd defendant submits that his statements and video tape, because of the manner in which they were taken or made, should not have been admitted. In particular it is complained by the 2nd defendant that the same team of officers who produced the video tape whose conduct was improper in procedure, also took the statements from him. The trial judge directed the jury that they should consider with care whether the statements of the 2nd defendant and his video tape were made by him or with his consent. And also, they had to consider whether the contents were true. The jury were invited by the judge to bear in mind the circumstances in which his statements and video tape were made, particularly his alleged mis-treatment and his alleged forced confessions by the police. The judge gave proper directions to the jury. Grounds 2 & 4 therefore cannot stand.

8. The last Ground of Appeal, ground 3, is critically directed at his identification parade. As to identification evidence, the judge properly directed the jury as to the possible weaknesses the jury had to focus on in weighing the identification evidence. His direction was proper and adequate. None of the four grounds advanced by the 2nd defendant has any merit. His application for leave to appeal against his conviction is therefore refused.