The Queen v. Ng Kit Fong

CACC000194/1991

BETWEEN

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Power, J.A.

Date of Hearing: 4 December 1991

Date of Judgment: 4 December 1991

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JUDGMENT

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Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. This is an application for leave to appeal against conviction.

3. On the 23rd March 1991, the applicant (who was 17 years of age at the time of trial) was convicted by a jury after trial before Deputy Judge Sharwood of fraudulent taking and detention of a person with intent to procure a ransom or benefit for his liberation, contrary to s. 42 of the Offences against the Person Ordinance, Cap. 212. The victim was an 11-year old boy Lam Chun-yu, who was her own cousin. Lam's father and the applicant's mother were brother and sister.

4. From the evidence of two young men, Wong and Fok, and also of the boy's mother and paternal grandmother, there was ample material upon which the jury could come to the conclusion that an offence under s. 42 of the Offences against the Person Ordinance had been committed, at least by Wong and Fok.

5. The Prosecution's case against the applicant was not that she actually took part in this offence but that she counselled and procured the offence and also aided and abetted others to carry it out. The case for the Prosecution was that she counselled the offence by advising and soliciting Wong and Fok to do it; she procured the offence by setting out to see that it happened, and took the appropriate steps to produce that happening. It was also alleged that she aided and abetted by going to the scene, by pointing out the boy, and by assisting with ideas as to what to say to  his mother to lure her out for him to be taken away by Wong and Fok.

6. The Prosecution evidence need only be briefly stated. In March 1990, the applicant told Wong that her boy friend was in debt and therefore needed money. She suggested that Wong and Fok should take the boy for a walk round the city and they should ask his father for money. For this purpose the applicant gave Wong a piece of paper with the name of the boy, the telephone number of her relative, and the address and names of the boy's parents. It was agreed that $500,000 was to be demanded from the boy's father. In accordance with the applicant's suggestion, Fok telephoned the boy's mother, pretending to be the boy's teacher to lure the mother to go to his school. Then, again at the applicant's suggestion, a telephone call was made to the boy, who was told that his mother was waiting downstairs. The boy went downstairs and was taken away and detained by Wong and Fok. Eventually Fok telephoned the boy's father and demanded $20,000. Later he met the father at a restaurant and received from the latter $20,000 and a finger ring. The police having earlier been informed, Wong and Fok were arrested as they walked out of the restaurant with the boy. The applicant was later arrested at a 'video centre.

7. Whilst negotiations between Wong and the boy's father were going on, the applicant paged Wong four times to discover what was going on.

8. The applicant gave evidence in her own defence denying the offence. The essence of her evidence was that though involved in the offence she was acting under duress and was therefore innocent.

9. In the Perfected Grounds of Appeal, complaint is made of the evidence of Woman Detective Police Constable 18241 in which she described the applicant as . the "target person". In particular the learned trial judge is criticised for the following passage in his summing-up (at pp. 25-26):

"The final witness for the prosecution was TAM Oi-wah, WDPC 18241. She was one of the police officers who went to the video game centre. She said that the girl met the description of the target person. Mr. Mullick immediately invited me to tell you to ignore that remark and I did. On reflection, I am confident that you understood what it all meant. It simply meant that the accused was suspected. You know that WONG and FOK had been arrested outside the restaurant with the boy. They were caught red-handed. They had made statements, they had confessed and they had implicated the accused. Therefore, the police suspected the accused. They were looking for her and that is why they came to the video centre. This is why this female officer referred to the accused as the target person. It means no more than that she was suspected. It does not mean that she is guilty. She was suspected and that is why she was arrested. If you are suspected, you are in that sense a target. Nothing more, nothing less."

10. It is contended that the judge should simply have directed the jury, as he in fact did in the course of the evidence, to put the reference to "target person" entirely out of their minds and left well enough alone.

11. It is not argued that the facts stated by the judge in this passage of his summing-up are in any way incorrect.

12. It is unfortunate that the expression "target person" was used in evidence in reference to the applicant and the learned judge was right in asking the jury to ignore that remark. The judge could have confined himself to simply telling the jury to ignore them, or he could, out of caution, have explained the effect of those words by ensuring that they understood the significance of the words in the light of all the surrounding circumstances. She was, on her own evidence, involved in the offence though she stressed that she had acted under pressure or duress and was therefore innocent.

13. The jury of course already knew that the applicant was implicated by Wong and Fok when they were arrested.

14. Having regard to those facts, we cannot say that the judge erred in the direction that he gave to the jury in this respect. For these reasons, we refuse the application.

Representation:

Mr. C. Coghlan for Crown/respondent

Mr. John Mullick (DLA) for applicant