CHAN WING KUEN and Another v. R.

IN THE COURT OF APPEAL

1994, No. 231
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The appellants were convicted of false imprisonment after trial before His Honour Judge Lugar-Mawson in the District Court. They now apply for leave to appeal against conviction.

2. There was undisputed evidence for the prosecution from a Mr Wong Chi-keung that after he had borrowed $25,000 from a loan shark in Macau in order to repay a gambling debt which he had incurred there, he was accompanied back to Hong Kong by the 1st appellant in order to collect money to repay the loan.

At about 7.30pm on 11 November 1992 Mr Wong and the 1st appellant arrived at the Hong Kong Macau Terminal at Shun Tak Centre where they were met by the 2nd appellant and two other men. He was told to board a taxi and, although he lives in Kwun Tong, was taken by the men to Chai Wan where, after he had made a number of unsuccessful calls to raise money, he was taken to a room on the mezzanine floor of a karaoke bar until 4am the following morning. There more unsuccessful calls to raise money were made. The four men who were accompanying Mr Wong then rented two rooms at a hotel in Chai Wan which they and Mr Wong occupied for several hours. At about 1.35pm that day the police, acting on a report that they had received, arrested the 1st appellant while he was accompanying Mr Wong at the Macau Ferry Terminal. The 2nd appellant was arrested on 2 June 1993.

3. The 1st appellant made a statement under caution which was admitted into evidence without challenge. In that statement he admitted that he was employed to dun debtors for payment of debts incurred in gambling at the jai alai stadium in Macau and that he had been paid $1000 to escort Wong from Macau to Hong Kong in order to collect a debt owed by him. He admitted that he had escorted Mr Wong from the stadium and had taken a ferry to Hong Kong where, in accordance with the instructions he had received, he met three other men. The 1st appellant and the three men then escorted Mr Wong to Chai Wan by taxi. After taking a meal, two of the men took possession of Mr Wong's telephone notebook in order to telephone Mr Wong's friends with a view to raising money to repay a gambling debt which, including interest, amounted to $26000. When contact was made by telephone with each of these friends, Mr Wong was asked to speak first, after which one of the men took over the telephone and asked the friend to raise money. Some 7 to 8 calls of this nature were made. However, none of Mr Wong's friends was able to assist.

4. The 1st appellant further admitted that one of the men told Mr Wong that he would have to pay an additional amount of $15,000 as wages for his four escorts and the expenses they had incurred. Wong was then taken by the four men to a karaoke lounge where more telephone calls were made in an attempt to get Mr Wong's friends to raise the money. Eventually a female friend of Mr Wong agreed to deposit the money into a bank account at the commencement of business that day.

5. At about 3am Mr Wong was escorted to a nearby hotel where the men rented two rooms. The 1st appellant said that he and another man were instructed to guard Mr Wong during the rest of the night, and that at about 10am they all went to a nearby restaurant for breakfast where Mr Wong received a call from his girlfriend telling him that $25000 had been paid into a bank account. It was then arranged that the balance would be paid by the girlfriend at the Macau Ferry Terminal. On arrival at the terminal they waited for the girlfriend to arrive. However, instead, police officers arrived and arrested the 1st appellant. His companions managed to escape.

6. In answer to questions asked by the statement taking officer the 1st appellant said that, although Mr Wong had agreed to have the money paid by his friend into a bank account, they had escorted him to the hotel to spend the next of the night to ensure that the debt could be collected in the morning.

7. A statement made under caution by the 2nd appellant was also admitted into evidence without challenge. In that statement he admitted, in response to the caution which set out the relevant circumstances, that, on being promised $1000 to do so, he agreed with one Kwai Lee Hung to go to the Macau Ferry Terminal "to pick up someone". On arrival at the ferry terminal he and Kwai Lee Hung met two men as they were emerging from the terminal. They all boarded a taxi and went to Chai Wan where one of the two men whom he had met at the ferry terminal made several telephone calls to raise money. Kwai Lee Hung told the 2nd appellant that the man had borrowed money from them in Macau and had to repay them $40,000. When, after making the telephone calls, the man told the 2nd appellant and his companions that he could not raise the money, they all went to a nearby karaoke lounge where the man again made several telephone calls to raise the money. After these efforts again proved unsuccessful they all returned to a nearby hotel where they spent the night waiting for the man to raise the money. At the hotel the 2nd appellant slept in the same room as the man while the others slept in another room.

8. At 10am Kwai Lee Hung woke them up and they all went to breakfast in a nearby restaurant. They then took a taxi to the Macau Ferry Terminal where the man said that he had to wait for someone. While they were all waiting for this person to arrive the 2nd appellant went to the toilet, only to discover on his return that everyone had disappeared.

9. There could be no doubt that the "man" whom the 2nd appellant had admitted he had accompanied and whom he was told owed money and was attempting to raise funds to repay his debt was Mr Wong.

10. At the conclusion of the prosecution case a submission of no case to answer was made on behalf of both appellants. In the course of their submissions counsel for the appellants conceded that the Crown evidence was not disputed. However they submitted to the judge that, as a matter of law, the evidence did not disclose the commission of the offence of false imprisonment

since, on their interpretation of the evidence, Mr Wong had agreed to accompany the men.

11. It is convenient at this juncture to refer to certain questions asked of and answers given by Mr Wong in the course of his testimony.

12. In examination in chief:

"25 Then?

We got to Hong Kong then I was met by three other men and I was held in a vehicle, and I was taken some where else.

26 Where did you get on the vehicle? Shun Tak Centre Taxi stand.

27 The Taxi went where? Chai Wan area.

28 How many in the taxi including you? Five.

29 Who were they? Two who were on ferry, myself and two others.

30 Inside taxi anyone talk to you? Yes - they told me they were going to take me to Chai Wan and told me to pay the money early.

31 Able to recognise one of the persons inside the taxi, apart from driver? No. I cannot.

32 Who chose to go to Chai Wan? They did.

33 Why did not you go home? I was not able to make any move - they told me to get on the taxi.

34 You lived in Kwun Tong, then? Yes.

54 Did they say anything about what would happen after payment of the money? I would be told to leave.

86 Why did not you go home? (From the hotel) Because the money had not been deposited.

87 Was it your choice to go to the hotel? No.

Court: Why did you go to that hotel?
I do not know - one said to me that we were to go.

88 Did you wish to go there? No.

99 Why did you go to the restaurant for breakfast? Because he said the amount was not correct and he had arranged to meet my girl friend.

100 Why did not you go home? Because insufficient money had been deposited.

101 What else, if any thing, was said about that? They had arranged to meet my friend at the pier.

102 Why did you still accompany them? Because I did not paid them enough yet - I cannot leave.

103 Why not? I though I could not.

Court: What if anything had being said to make you think that? He said I must clear all the money by depositing enough money first."

13. In cross-examination:

"8 I put it that you did not object to going around with those people in order to settle the debt? Right."

13 Did you have to leave the room in the Karaoke to make a call? Yes.

14. Did you leave the room alone? Well - yes, I went to make a call by myself.

15 The hotel - was it that someone suggested go some where to get a rest? Yes."

In re-examination:

"1 What do you mean - when you say you had "no objection" to going around with those people? I mean I did not say anything.

2 In your mind what did you think? Well - I just wanted my friends to be able to pay early.

3 What did you think about their suggestion that you went to various places? As far as I was concerned, I knew that when payment was made I could leave them.

4 When you say you had no objection by being silent - why did you keep silent? I was still owing money to Ah Wah, I just wanted to pay them early."

14. On the basis of this evidence the judge rejected the submission.

15. Moreover, he concluded that the law was correctly stated by the Court of Appeal in England in R. v. Rahman (1985) 81 Cr.App.R.349 at p353 where the Lord Chief Justice said:

"False imprisonment consists in the unlawful and intentional or reckless restraint of a victim's freedom of movement from a particular place. In other words it is unlawful detention which stops the victim moving away as he would wish to move."

16. After the rejection of the submissions of no case made on their behalf the appellants elected not to give evidence or to call witnesses.

17. They were duly convicted.

18. In his Reasons for Verdict the judge said:

"The actus reus of the offence is imprisonment without lawful excuse. It certainly cannot be a lawful excuse to hold a man until he arranges the settlement of any debt, unless that be done by a lawful order of a court." and

It is clear from Wong's evidence, that he did not wish to go with the group of men. Although he did not specifically say that he objected to their actions, or required to leave them, or them to leave him; the only reasonable inference I can draw from the evidence is that this group of men were keeping a close watch on him and directing his movements and actions until he, not only arranged the repayment of the gambling loan and the accumulated "expenses", but also until such time as it was actually paid. What other intention can be ascribed to a group of four men who take another around in the fashion disclosed by the evidence in this case? They were there to make sure that Wong did not slip away and leave the creditor unpaid. Indeed the first Defendant, but not the second Defendant, who was more circumspect in his admissions to the police, admitted as much in his second cautioned Record of Interview (Exhibit P.10) in it he speaks of the group of persons 'guarding' Wong. Question and Answer 3 of that record of Interview I find particularly telling on this point.

As I have said, there is no evidence of these men having any lawful excuse for their actions and in the circumstances of this case there can be none.

As to their intention, there is very clear proof of that in the First Defendant's case, for he admits what his intention was in his cautioned statement.

In the case of the Second Defendant, I am satisfied that there can only be an irresistible inference that he had the necessary intention."

It is convenient to deal with the 2nd appellant's application first.

19. Mr Grounds, who appeared for the 2nd appellant in this court but not in the court below, submitted as one of his grounds that "a danger exists that the judge erred in law in that he wrongly compared the records of interview of the 2nd appellant and his co-accused or that he was wrongly influenced by that which [the 1st appellant] said in his record of interview when he was considering the evidence in the case against the appellant."

20. We do not consider that there is the slightest merit in this submission. In the passage complained of the judge was dealing with the case of both appellants. He was not endeavouring to shed light on the case against the 2nd appellant by referring to admissions made by the 1st appellant. That this is so emerges clearly from another passage in his judgment in which he said:

"It goes without saying that what each says in [their statements] of the other's role is not and never can be, evidence against that other."

21. However, the main ground on which Mr Ground placed reliance hinged on what the judge said after making reference to the case of Meering v. Graham- White Aviation Co. Ltd. (1919) 122 LT 44:

"It is to my mind totally immaterial to the issue of the guilt of either Defendant whether Wong believed he had to go as these men directed; did not object to going with them; or felt himself under an obligation, whether moral or legal, or both to repay his debt".

22. Mr Grounds submitted that, if Mr Wong had remained with the appellant and his companions because he felt that he had a moral obligation to repay the debt which he had incurred in Macau, it was impossible to say that he had been falsely imprisoned.

23. That, however, was not the basis on which the judge came to his finding of guilt. He said this in his Reasons for Verdict:

"It is clear from Wong's evidence, that he did not wish to go with the group of men. Although he did not specifically say that he objected to their actions, or required to leave them, or them to leave him; the only reasonable inference I can draw from the evidence is that this group of men were keeping a close watch on him and directing his movements and actions until he, not only arranged the repayment of the gambling loan and the accumulated 'expenses', but also until such time as it was actually paid. What other intention can be ascribed to a group of four men who take another around in the fashion disclosed by the evidence in this case? They were there to make sure that Wong did not slip away and leave the creditor unpaid."

24. Plainly therefore, irrespective of whether Mr Wong felt under a moral obligation to repay the gambling debt which he had incurred in Macau, and leaving aside the fact that there was no evidence to suggest that Mr Wong felt under any obligation to pay the extra $20,000 that the men were demanding to cover their wages for escorting him until he repaid the gambling debt, the judge found that Mr Wong had accompanied the men against his will.

25. This was a finding that the judge was fully entitled to make, particularly in the light of Mr Wong's evidence that "we got to Hong Kong then I was met by three other men and I was held in a vehicle and I was taken somewhere else"; "they told me they were going to take me to Chai Wan and told me to pay the money early"; "I was not able to make any move - they told me to get on (sic) the taxi" and "I did (sic) not paid them enough yet - I cannot leave". Indeed, we would have been amazed if, on all the evidence before him, the judge had come to any other conclusion.

26. The remaining ground advanced by Mr Grounds was that the judge erred in law in failing to regard himself as bound by the decision of Barnes J in R. v. Cheung Wan-ing [1990]1 HKLR 655, where the judge held at p658:

"False imprisonment as a tort is a species of trespass to the person. Where there has been no physical restraint placed upon a person's movements, a court must, at the very least, need cogent evidence of some real danger threatened by the culprit and feared by the victim in exercising freedom of movement before finding the offence of false imprisonment has been established."

27. With the greatest of respect, we do not accept this as an accurate statement of the law. It is not founded on authority and is contrary to the definition of false imprisonment set out in the passage which we quoted earlier from the judgment in Rahman and which was cited with approval in R. v. Hutchins [1988] Crim.L.R. 379.

28. For the offence to be committed it is not necessary that there be evidence that the defendant or defendants uttered a threat to the victim that he was in "some real danger" or indeed that any threat was uttered.

29. The 1st appellant adopted the above submissions made by Mr Grounds and sought to demonstrate, as did Mr Grounds, that the evidence that Mr Wong had left the room alone to make a telephone call while at the karaoke lounge and had been accompanied by only one of his minders while sleeping at the hotel, demonstrated that Mr Wong was at liberty to go where he pleased. We have already stated that there was ample evidence before the judge which entitled him to find that Mr Wong had accompanied the men against his will.

30. There being no merits in the appeals, they were dismissed.