HKSAR v. Cheung Tak Fu and Others

CACC000185/1997

IN THE COURT OF APPEAL

1997, No. 185
(Criminal)

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Coram: Hon. Power, V.-P., Barnett and Saied JJ.
       in Court of Appeal

Date of hearing: 2 September 1997

Date of delivery of judgment: 2 September 1997

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J U D G M E N T

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Hon. Barnett, J. (giving the judgment of the court)

1. There are three Appellants. Their involvement together arises out of offences of money lending, and subsequent offences of false imprisonment and blackmail allegedly carried out in an attempt to recover the money which had been lent.

2. The 1st Appellant, jointly with the 2nd Appellant, was charged with one offence of false imprisonment and one offence of blackmail. He was convicted of both offences. He was sentenced to three years' and two years' imprisonment respectively, both sentences to run concurrently. He sought leave to appeal against both conviction and sentence. He has said this morning he does not wish to pursue his appeal against sentence. As we have already indicated, his application for leave to appeal against sentence is dismissed.

3. The 2nd Appellant faced four offences. He was charged jointly with the 3rd Appellant with two offences of lending money at an excessive rate of interest. He was found not guilty in respect of those two offences. As we have said, he was also charged jointly with the 1st Appellant with offences of false imprisonment and blackmail. He was acquitted of the offence of false imprisonment. He was found guilty of the offence blackmail and sentenced to 18 months' imprisonment. He, too, sought leave to appeal against both conviction and sentence. He has abandoned his application for leave to appeal against sentence and that also stands dismissed.

4. The 3rd Appellant, who faced with the 2nd Appellant two charges of lending money at an excessive rate of interest, has not appeared this morning. We understand from the Bailiff's return that she was properly served with notice of the hearing. Accordingly, her applications for leave to appeal against both conviction and sentence stand dismissed.

5. The prosecution case was that the 3rd Appellant used to work with a lady who at trial was PW1. In December 1995 and again in February 1996, the 3rd Appellant lent PW1 a sum of $10,000.00. That was to be repaid but, if PW1 was unable to repay it, then she was to pay $1,000.00 to the 3rd Appellant every 15 days as tea money. There was some dispute as to whether or not certain repayments made by PW1 were payments of interest or repayments of principal. The 3rd Appellant not having pursued her appeal, that matter which was resolved by the judge as interest need not concern us.

6. PW1, however, apart from a few payments of $1,000.00 made no repayment of the principal of the loan. On 16th July 1996 at about 5:30 pm, she was shopping with her husband, who was PW2, and her daughter in a market at Yuen Long. There she was accosted by a man and a woman. The man demanded that she repay the loans. She was persuaded to follow these two people to a nearby café, abandoning her husband and daughter. After that, she was taken to a car where she saw the 3rd Appellant's husband sitting in the back seat. She was made to board the car. The 3rd Appellant's husband asked about repayment of the money. PW1 said she could not pay. The car then drove off with PW1 inside. Later, the car stopped. PW1 telephoned her husband on a mobile phone which was lent to her but she was unable to contact him.

7. The car drove off again and came to an open space where there were garages and containers. There, she saw a man she had not previously seen and had not previously known but whom she subsequently formally identified as the 1st Appellant.

8. She also saw the man who had accosted her at the market. She was induced to make a second telephone call to her husband. This time she was able to contact him and she told her husband to take the money there. She was, however, unable to identify where she was. At this point, the man who had accosted her in the market took the phone and said to her husband that he should bring the money, saying: "your wife is with us, bring money here then you see her." The inference, of course, was that if the husband did not bring the money, then he would not see his wife. At this point, PW1 was pushed into a container by the man she later identified as the 1st Appellant and by the man who had been driving the car. She was kept inside the container for between one or two hours. The container was dark. PW1 was considerably distressed, all the more so when stones apparently were thrown at the container.

9. After a while, PW1 was released from the container. She was allowed to make a telephone call to her husband, and she asked him to hurry up and bring the money. PW1 was unable to explain where she was. She was caused to remain in a car while the 3rd Appellant's husband and the man she had seen in the market left the scene. Arrangements were apparently made for the husband to meet the people nearby.

10. In the meantime, PW2 had reported the matter to the police. On their instructions, PW2 made contact both with his wife and the people who were detaining her, and arrangements were made to meet in Sheung Che Village where he was told to bring $30,000.00. He was given an envelope with pieces of paper inside by the police and, accompanied by police officers who were in hiding in a taxi, he went to the village to the appointed place. There he was approached by a man who was subsequent identified as the 2nd Appellant and he passed the money to this person. At this point, the police came out of hiding and arrested both the 1st and 2nd Appellants at the location.

11. That was the Crown case. As far as the 1st Appellant is concerned, he made a cautioned statement to the police following his arrest in which, in essence, he said that he had been at the container yard, that it was his container in which the lady had been locked, and that he had a key. Indeed he took the police to the container yard and showed that the key did open the container. He also, of course, went to the village to collect the money.

12. The 1st Appellant's complaint is that the trial judge erred in ruling as admissible the cautioned statement. He complains that the judge failed properly to evaluate the evidence and to resolve discrepancies or inconsistencies in the evidence of the manner in which the statement was taken. He also attempted to cast doubt upon whether PW1 had in fact been put into the container. He says this because there is no evidence that PW1 had been dirtied or contaminated by any diesel oil which had apparently been stored in the container. As far as the latter point is concerned, there never really was any dispute at trial that PW1 had been so confined. And in any event, the judge properly accepted PW1 as a witness of truth as to this matter.

13. As far as the cautioned statement is concerned, the judge gave detailed reasons as to why he admitted it in evidence. He specifically said that the discrepancies had been pointed out by counsel representing the 1st Appellant at the trial. He specifically said that he considered counsel's submissions and found that the discrepancies or inconsistencies did not cause him any doubt that the statement had been given voluntarily.

14. Accordingly, we see no reason to disagree with the judge's ruling as to the statement and the judge's finding that the Appellant was guilty. Accordingly, we dismiss the 1st Appellant's application for leave to appeal against conviction.

15. The 2nd Appellant is represented by Mr. Kwok who has put forward two grounds of appeal. First, that on the evidence adduced, the inference that the 2nd Appellant acted as part of joint plan of blackmailing PW1's husband, PW2, is not a compelling one. Secondly, that the verdict is unsafe and unsatisfactory because the acquittal on the false imprisonment charge is inconsistent with the conviction on the blackmailing charge. As Mr. Kwok put it, really this is a case of all or nothing. He submitted that on the evidence before the judge, either the 2nd Appellant was involved up to his neck in both the confinement of PW1 and the demands made of PW1's husband or he was not.

16. The prosecution case, as submitted by Mr. Saw this morning, is that the offences of false imprisonment and blackmail were in fact separate and distinct matters, the false imprisonment relating as it did to PW1 and being separate and preliminary to the demand made of PW1's husband. On the facts of the case, as we have outlined them, we have no doubt that is a correct appreciation of the position.

17. The learned judge dealt very carefully with the case against the 2nd Appellant. As we have said, he acquitted the 2nd Appellant of the charge of false imprisonment. In essence, in doing so, the judge was giving the 2nd Appellant the benefit of the doubt. The 2nd Appellant also made a cautioned statement to the police. He made no admission in respect of the charge of false imprisonment. Further, he was not identified by PW1 at a subsequent identification parade. The judge thought it was highly suspicious that the 2nd Defendant might be connected with the detention of PW1, given the proximity of the detention of PW1 and the 2nd Appellant's arrest at the place appointed nearby to collect the money. Nonetheless, he gave him the benefit of the doubt.

18. As far as the charge of blackmail is concerned, again the judge dealt very carefully with the evidence. Like the 1st Appellant, the 2nd Appellant did not give evidence at the trial. The only input therefore that the learned judge had from the 2nd Appellant was the 2nd Appellant's cautioned statement in which he said that he had won money at gambling and that he, in fact, had lent $20,000.00 to PW1. In the light of PW1's evidence, the judge rejected that part of the 2nd Appellant's story. In his statement, however, the 2nd Appellant admitted that he had knowledge of the loan of $20,000.00 and that it had not been repaid. He also admitted that he had gone to the container yard where he saw PW1 that night and he also admitted that he went to the nearby village to collect the money from PW1's husband whom he approached upon PW2's arrival.

19. What the judge said was that, taking all that into account, "I draw the inference which I find to be so compelling that no reasonable man could fail to draw under the circumstances that (the 2nd Appellant) had acted as part of the joint plan of blackmailing PW2 and carried out the plan by going to (the village) to collect the money from PW2." In the light of that evidence, which we accept as being capable of being separate and distinct from the evidence in relation to the false imprisonment, we are wholly unsurprised that the judge drew the inference which he did. Indeed, we can see no other inference which he could reasonably have drawn from the facts.

20. Accordingly, the 2nd Appellant's application for leave to appeal against conviction is dismissed.

Representation:

Mr. D.G. Saw, S.C. and Miss Lily Wong G.C. for Director of Public Prosecutions

Mr. Eric Kwok instructed by D.L.A. for 2nd Appellant (re: conviction)
1st Appellant in person
2nd Appellant in person (re: sentence)
3rd Appellant in person (absent)