R. v. LAU MEI WAH AND ANOTHER

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the Court.

2. The first applicant (A1) was convicted by Judge Tung after trial of false imprisonment (Charge 1) and of criminal intimidation (Charge 3). She pleaded guilty to a charge of common assault. She was sentenced to four years' imprisonment on Charge 1, six months' imprisonment on Charge 2, and 15 months' imprisonment on Charge 3. Those sentences were ordered to run concurrently. She now seeks leave to appeal against sentence.

3. The second appellant (A2) was convicted after trial of false imprisonment (Charge 1). He seeks leave to appeal against conviction.

4. The ground of appeal advanced on A2's behalf is that the conviction was unsafe and unsatisfactory. Twelve particular complaints are made in support of this ground.

5. The victim in question was at all material times a 16-year old girl. The judge found her to be "a very truthful witness". He had "no difficulty to accept her evidence", and gave "full weight to her evidence".

6. Her evidence was that shortly after 11 a.m. on the 9th December 1990, she paged A2 at his request. She was told to meet him as he had something to talk to her about. A2 then arranged for them to meet at 11.30 a.m. at the Kowloon Watch Company in Kwuntong. It was her understanding that at the meeting A2 would be with Lau Kin-wah whom she had known slightly. On arrival at the watch company, she saw A2 and Lau Kin-wah and the three walked together. Lau said, "Let us talk about it on arrival at home." At the time A2 said nothing.

7. On arrival at a flat at Mut Wah Street, Kwuntong, according to the evidence of A1, A2 woke her up and told her that the victim had arrived. It will be noted that the learned trial  judge rejected most of A1's evidence but accepted this piece of evidence having warned himself that she was an accomplice and her evidence was uncorroborated. It is not disputed that she is Lau Kin-wah's elder sister.

8. According to the victim, whilst she was kept in the flat Lau Kin-wah said to her "Do you know that I love you very much? Now you treat me like that! That is what we call love turns to hatred?" A1 accused her of playing with her brother. The victim then said that she was told by a friend that Lau Kin-wah only wanted her because he wanted her to be a prostitute, whereupon A1 struck her. She was in tears. Then Lau Kin-wah produced two knives and held a beef knife a few inches from her neck. He declared that she had three alternatives: to be his wife and to be with him all alone; to work as a prostitute; or to arrange for someone to have a settlement talk with him. During this period, A1 and A2, and a girl then 13 years of age called LEE Yuen-wah (PW2) were present.

9. Then A2 and PW2 left the room on Lau Kin-wah's instruction and they went into another room. There was a hatch in the wall separating those two rooms. It was after A2 and PW2 had gone into the other room that a camera was passed by someone in the second room, through the hatch, to A1. Lau Kin-wah then forced her to have three photographs taken of her in the nude. The photographs were produced in the court below, one of which showing that she was held down and all three show she was in great distress. Under cross-examination, she said it was after Lau Kin-wah had produced the camera that she cried out to A2 for help. She said she cried out loudly but there was music being played at the same time, and the volume was described by this witness as ordinary. However, the hatch was open, so a person in one room could look into the other room.

10. After the victim had been photographed, Kin-wah allowed her to dress and leave. She had detained for about two hours.

11. Throughout these two hours, A2 said and did nothing towards the victim.

12. In a cautioned statement, A2 denied knowledge of what A1 and her brother and the victim said or did. It was largely an exculpatory statement except that he concluded by saying when he, A1 and PW2 left the apartment to go out into the street he saw the victim with two uniformed police constables so he "escaped". The judge found that by the statement A2 had expressed his guilty intent. He found that the statement was A2's confession of what he had done in aiding and abetting A1 and her younger brother

13. A2 did not give evidence or call any witnesses.

14. The main issue which calls for examination is whether the evidence against A2, described by the judge as "mainly circumstantial", was sufficient to show that he had participated in what was clearly false imprisonment of the victim and did the trial judge properly evaluate it.

15. In this connection, we need cite only one authority, namely Coney (1882) 8 QBD 534, where Hawkins, J said (at p. 557):

"It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not."

16. The dictum was approved by the Courts-Martial Appeal Court in Clarkson (1971) 55 Cr. App. Rep. 445 (at p. 557).

17. Mr. Forrest, acting on behalf of A2, argued that the judge erred in his Reasons for Verdict in asserting that A2 had "induced" the victim to go to A1's flat whereas he had only "arranged" a meeting and it was Lau Kin-wah who suggested going to the flat. This seems purely a matter of semantics. There is nothing in this complaint.

18. Then it is said the judge erroneously accepted A1's evidence that A2 woke her up to say the victim had arrived at the flat. Having considered A1's evidence, it was open to the judge to accept her evidence in part. In any event, the significance of this piece of evidence is minimal.

19. The complaint that the judge erred in finding prior planning between A2 and Lau Kin-wah does not hold water. Taking the whole of the evidence in its proper context, the judge was perfectly entitled to say that all those happenings and what A2 did could not be coincidental.`

20. The. Crown concedes that the judge had misdirected himself in law by finding that A2's cautioned statement was a confession of guilt. There was no expression of guilty intent in that statement: it is not a confession.

21. On the question of A2's participation, the Crown refers to a number of factors, viz., a clear inference that he arranged the meeting at the watch company by means of a ruse; he was with the victim throughout; he woke up A1 to inform her of the victim's arrival; he was present when A1 assaulted the victim and Lau Kin-wah threatened her with knives and offered her the three alternatives; he did nothing to prevent what was being done to the victim; he and PW2 then went into the second room on Lau Kin-wah's instruction; a clear inference could be drawn that whilst he was in the second room, he could hear the victim's cries to him for help; he could probably look through the hatch to see what was taking place; the photographs were taken by flash and he must have been aware of what was happening; etc, We accept that taking the evidence as a whole, there are ample grounds to support the inference that A2 was acting in concert with A1 and Lau Kin-wah in the false imprisonment of the victim.

22. The next complaint is that the judge erred in finding that the victim's cries to A2 for help were uttered at an early stage in the incident whilst on the victim's own evidence, she cried out for help after the camera was produced. Clearly the trial judge mistook the evidence, but, as the Crown argues, the significance is that cries were uttered thereby indicating distress and A2 did nothing.

23. The victim under cross-examination admitted that the reason why she called out to A2 for help was she did not, at first, believe A2 was on the side of Lau Kin-wah in trying to keep her in the flat. Mr. Forrest submits that this answer ought to have raised a doubt in the learned judge's mind as to whether A2 was a party to the false imprisonment. We do not agree. The victim's answer merely shows what her own belief was - which was clearly shown to be wrong.

24. Lastly, it is argued that A2 could not be found guilty if he did not act in concert with A1 or Lau Kin-wah in detaining the victim in the flat. We agree. The law is clear. On the evidence, a clear inference could be drawn that A2 by his presence and conduct intended to, and did, encourage A2 and Lau Kin-wah.

25. While accepting that the errors made by the trial judge were serious ones, we have come to the conclusion that the general strength of the evidence was such that no tribunal properly directing itself could come to anything other than a conclusion of guilt.

26. We allow the application, treat the hearing of the application as hearing of the appeal but, applying the proviso, dismiss the appeal.

Sentence

27. We now come to A1's application for leave to appeal against sentence.

28. Lau Kin-wah was the principal culprit. A1 played a supporting role. A1's assaults on the victim were neither serious nor frequent. There were no injuries. In all the circumstances, we are of the view that the overall sentence of four years' imprisonment on her was manifestly excessive, though we in no way minimize the gravity of the offence, nor do we overlook the shock, terror and humiliation which the victim must have suffered.

29. We allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. We accordingly reduce the sentence on Charge 1 to one of two years' imprisonment. The sentence of six months' imprisonment is to run consecutively to the sentence on Charge 1. The sentence of 15 months is to be a concurrent sentence. The totality of sentences is therefore two and a half years.