HKSAR v. Leung Hung on

CACC000179/2002

CACC 179/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 179 OF 2002

(ON APPEAL FROM DCCC NO. 1056 OF 2001)

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Coram: Hon Stock JA, Yeung JA and Burrell J in Court

Date of Hearing: 17 April 2003

Date of Judgment: 17 April 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1On 21 March 2002 the applicant was convicted after trial by HH Judge Chua in the District Court of false imprisonment and of burglary. He was sentenced to a term of three years' imprisonment in respect of burglary and to a consecutive term of six months' imprisonment in relation to the false imprisonment. He now seeks leave to appeal against the conviction for false imprisonment.

2The charge of false imprisonment alleged that on 26 June 2001 at Flat 3A of Good View Court in Tai Ping Shan Street in Central, the applicant and one Lai Kai-man (who was the 2nd defendant at trial) together with a person unknown, unlawfully and injuriously imprisoned a Miss Toothill and detained her against her will.

The facts

3In the afternoon of 26 June 2001 a number of police officers saw this applicant and the man Lai on the rooftop of Good View Court. The men were then seen inside Flat 28A looking out, and then the two of them climbed out of the window there and made their way down the drainpipe. On their way down the police shouted out to them to stop. They did not do so but climbed into a flat on the 18th floor, Flat 18A. The episodes which we have thus far related gave rise to a charge of burglary of Flat 28A in respect of which the applicant was convicted; and the burglary of Flat 18A of which he was acquitted because the judge could not be satisfied that he there intended to steal. His conduct in the flat at 18A was by then, since he knew that the police were on to him, more consistent with an attempt to escape.

4The applicant and his colleague then made their way down the building to the third floor. In Flat 3A resided Miss Toothill. The police by then had been alerting residents of the block of flats, and had already been to Miss Toothill's place and had told her to secure her windows and her door. They departed, but a short while later the door bell rang again and there were the two men, the burglars, whom Miss Toothill had first thought to be plainclothes policemen. The applicant merely said: "No problem", and she closed the door again. A few minutes later the door bell rang once more and she opened the door. Her evidence was then this: "The defendant pushed the door and they both came in and the smaller guy - Defendant 2 - locked the door behind him."

5She had said nothing to encourage them to enter. She had not invited them to enter.

6They signalled to her to calm down, and the defendant indicated that he wished to use her telephone. He gestured and spoke to her in broken English. He then told her that he needed a change of clothing, and she went to fetch a t-shirt which belonged to her boyfriend. She sat on the sofa and the men sat on either side of her. They made more telephone calls.

7One telephone call was made by the applicant to a man to whom he spoke and who was put on to Miss Toothill by the applicant; in other words the applicant made a telephone call, spoke, and then handed her the receiver and asked her to speak to the person on the other end, who turned out to be a man who spoke very good English. That man told her to remain calm and that she had to wait there until around 7, until it was dark; she then had to leave the building, with the two men and pretend, if asked, that she was their friend. No doubt he is the "person unknown" to whom the particulars of the first charge refers as party to the false imprisonment.

8Mr Percy, who appears today for the applicant, and also appeared at trial objected at trial to the admissibility of that telephone conversation on the basis that he then put it, that: There is no evidence that these two were present and able to hear the conversation that this man said to the lady. Whatever he may have said may or may not be what they wanted him to say, or in fact that it was true. The sense of the last comment about truth, when looked at with the other passages in the transcript, seems to have been a contention that the evidence was hearsay and was therefore inadmissible. To this point we shall return, for it is the basis of the first ground of appeal.

9Then, according to the evidence, the applicant asked Miss Toothill what her mobile telephone number was, and she supplied it. Her evidence was that she was scared and she was then asked this question:

"Q. Did you think you could leave the flat?

A. No, not after the conversation with the gentleman on the phone and the fact that they'd locked the door when they came in." (tr page 44).

She was asked whether she had a boyfriend and she said Yes she had, and she said that he would be coming home at around 6 or 6.30 p.m. The applicant then said that they wanted her to telephone him to tell him not to come home. So she made a telephone call, not to her boyfriend, but to her employer, a Mr Higgins, and she spoke to his personal assistant, and he then telephoned back.

10According to this evidence, Miss Toothill was asked whether she was O.K. and she answered "No"; and he asked her if she could leave the house and she said she could not, and he asked if she was being held against her will and she said that she was. That is what, according to her evidence, she believed.

11Cross-examination was directed at suggesting that the men did not behave aggressively; that neither said to her that she could not leave; and that she was not compelled to do anything. The point which the cross-examination was seeking to make was that she was not in the flat under compulsion. We note that in the course of cross-examination she said that she thought that the applicant was indeed aggressive and that he was in her flat and in her presence and "he was panicked"; and that in so far it was suggested that she was never kept on the sofa, she said that "... the fact that they were present and sat next to me so closely made me feel that I had to stay there." (tr page 51L).

It then was put to her that:

"Q. Neither man told you at any time that you could not leave the flat.

A. Verbally, no.

Q. Nor did you try and leave the flat and were physically stopped.

A. They locked the door behind them when they came in, which suggested to me I couldn't leave." (tr pages 51S-52A).

The judge's reasons

12In her Reasons for Verdict, the judge said that whereas counsel submitted that the defendants' wish was only to escape the police and not to restrain Miss Toothill; that she was free to move about her home; that she had never asked to leave; she, the judge, said that she was satisfied that:

"... Miss Toothill was a necessary hostage to their plan to escape. They could not risk her leaving or using the phone to alert the police of the presence of the two strangers in her flat.

Although Mr Percy objected to the admissibility of the phone conversation, this is admissible as part of the res gestae. D1's friends could not have known Miss Toothill's telephone number. I infer from the evidence D1 had called round to find a friend who could communicate to Miss Toothill what he intended she should do, that is to say, that she should stay calm and at 7 pm when the police may have departed, she was to accompany them out of the building. However, if they were stopped, she was to say they were her friends.

Later, alarmed that her boyfriend would turn up, he made her call to dissuade him. I am satisfied she was not at liberty to leave her flat." (tr page 29H-R).

13Accordingly, the trial judge convicted the applicant of the charge of false imprisonment.

The hearsay point

14The first ground of appeal is that the judge was wrong to have admitted into evidence the contents of a telephone conversation which Miss Toothill had with a stranger, as evidence of the true intentions of the defendant. Mr Saw SC for the respondent, in his written submissions, answered that the conversation was admissible to prove not the truth of the contents of the statement, that is the suggested statement that she would in fact be required to remain in the flat with the applicant until 7 p.m., but the witness's state of mind.

15We have to say that the approach by both sides is to complicate a straightforward point. The fact of the matter is that the person to whom Miss Toothill spoke was, according to the unchallenged evidence, a person introduced by the applicant to speak to her; and to speak to her specifically about the situation in which the applicant had placed her. It was for the judge to determine whether that person was speaking to Miss Toothill on the applicant's behalf. In the circumstances in which he was introduced to speak to her, the only reasonable inference was that he was doing so on behalf of the applicant and that, not surprisingly, is what the judge found. That being so, he was speaking to her as the applicant's agent in the course of the attempts by the applicant and Lai to escape capture by the police. His declarations as agent for the applicant were therefore admissible as declarations of the applicant, whether or not it was the intention of the prosecution to rely on the truth of any assertion of fact expressed or implied in them.

The evidential point

16The second ground asserts that the judge was wrong to have concluded that Miss Toothill was a hostage and not at liberty to leave the premises. In his written submissions Mr Percy took us to the decision by Barnes J in R v Cheung Wan Ing and Another [1990] 1 HKLR 655 in support of a suggestion that in the absence of physical restraint a court requires, in the case of false imprisonment, cogent evidence of a real danger threatened by the alleged offender and fear by the victim. The point, as we understand it, is said to assist the applicant in this case because the argument is that Miss Toothill might not have felt restrained but for the telephone call to which we have earlier referred.

17All that the court was saying in that case was that where someone is not physically restrained, some other form of restraint upon the victim's freedom to leave, which is also intended to have that effect, must be shown. That case was, in any event, wholly different from this. That was a case in which the complainant's evidence was that the door of her room was not locked and that she could have come and gone as she wished; but that she was reluctant to leave her hotel room because she feared being followed about by the men who were there to persuade her to pay a gambling debt; and that she felt intimidated.

18In this case, deliberate blockage of the complainant's freedom of movement was obvious from a variety of factors. The two men in Miss Toothill's private residence had shortly before committed a burglary and to their knowledge were being hunted by police who at that very time were in the same building; and the burglars wished to take cover until dark. They entered the flat without any permission to do so; and they locked the door, with Miss Toothill inside. The circumstances reeked of compulsion. Miss Toothill was told in terms by someone acting on behalf of the applicant and Lai that she had to wait until 7 p.m. and that she had to leave with the two men. She was told by the applicant so to arrange matters that her boyfriend did not return to the premises until that hour; until the time, that is, for their escape at dark. There was in the circumstances no need for the applicant or for his colleague in crime to tell Miss Toothill that she was not free to come and go as she pleased. The idea that she could leave - as no doubt she would at once have done unless it was obvious that she was being confined - and that she could leave to report the matter, as no doubt she would at once have done, to whomsoever she wished, but most particularly to the police who were in her building searching for the men, is fanciful. How it can seriously be suggested that in these circumstances she was a free agent is difficult to comprehend. Of course she was being constrained against her will. She was unlawfully imprisoned. There was no other reasonable conclusion which the trial judge could have reached.

Conclusion

19The grounds advanced in this application have no merit whatever and, accordingly, the application for leave to appeal against this conviction is dismissed. So devoid of any vestige of merit is this application that, pursuant to the provisions of section 83W of the Criminal Procedure Ordinance, we order that one month of the time served by this applicant pending appeal shall not be reckoned as part of the sentence.

Representation:

Mr Duncan Percy instructed by Messrs Yuen & Partners for the Applicant

Mr D G Saw, SC leading Ms Alice Chan, SGC of the Department of Justice for the Respondent