The Queen v. Cheung Wak Ing and Another

HCMA001088/1989

IN THE SUPREME COURT OF HIGH COURT

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1088 OF 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 17 October 1989

Date of Delivery of Judgment: 17 October 1989

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J U D G M E N T

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1. The appellants were jointly charged with the offence of false imprisonment. The particulars of the offence were alleged as follows:

"that between 0230 hours and 1155 hours on the 26th day of July 1989 at Room 809, the Caravelle Hotel, 84 Morrison Hill Road, Happy Valley, in Hong Kong, did detain CHIU Sau-chun against her will. They pleaded not guilty but were found guilty after trial."

2. The particulars of the charge do not allege that the detention was unlawful but no point has been taken on that either in the court below or on this appeal.

3. At the trial, two witnesses gave evidence for the prosecution. The defendants neither gave nor led any evidence in their defence. One of the prosecution witnesses gave evidence limited to the arrest of the appellants in room 209 of the Caravelle Hotel.

4. The other witness was PW1, Madam CHIU Sau-chun. She said that she came here from Japan on the 11th of July this year to look for a Japanese friend named Ito. Her search for Mr. Ito took her to Macau. During long and frequent interruptions in her search for the elusive Mr. Ito she visited the gambling table in the VIP room of the Lisboa Hotel. As a result, she lost all her money but the bitterness of her loss was sweetened somewhat by the timely appearance of a Mr. Cheung, a kindly gentleman, who on their first meeting, gave her $50,000 worth of chips with which to continue playing. Her story of her subsequent relationship with Mr. Cheung was so diffuse that it is best paraphrased by saying that, although she had every intention of repaying Mr. Cheung, circumstances not only thwarted the carrying out of her honourable intentions but created the need for her to borrow money elsewhere. This led to her assoication with Mr. Cheung turning sour. When the time came for her to leave Macau, with no money and no Mr. Ito, she was told by Mr. Cheung that it the $50,000 she had borrowed was repaid in Hong Kong, there would be a sur-charge of $6,000 making her total indebthess $56,000.

5. She returned to Hong Kong with a lady she met in Macau. Back in Hong Kong the two of them went everywhere she said but they had been met at Shamshiupo by Mr. CHAN Hung, a brother of the man who lent her the money in Macau. This meeting was apparently arranged by Mr. CHIU Hung, a man, who according to PW1, looked like a fighter and who was engaged by the Mr. Chan in Macau to escort her back to Hong Kong. She told CHAN Hung that she had already signed an I.O.U., that CHAN Hung had to trust her and that she would repay as promised. The promised repayment date was Tuesday the 25th of July and it was then Tuesday the 25th of July. When she returned to the Caravelle Hotel, Chan and Chiu accompanied her. In her hotel room, she asked them to trust her but they insulted her. Eventually two gangs of people appeared in her room. There was talk of Killing and she was called an old whore. By this time the first appellant was present. She was told to return the money at once. A member of one of the gangs had a spring knife. She asked them to leave saying she would repay the following week. Both gangs refused and swore at her. Then the 2nd appellant was called by telephone and he came to the room. Although PW1 said in her evidence-in-chief that she was not allowed to go out, in cross-examination she said the door of the room was not locked and that-she could have come and gone as she wishes.

6. The police officers; who came to arrest the two appellants, came as a result of a telephone call which PW1 made from the room.

7. The gravamen of the offence is the total restraint on another's liberty not justified by the law. The charge related, as I mentioned, to the time between 2:30 am and 11:55 am. During this period, PW1 was alone with the appellants. Giving evidence about what happened during this time, she began by saying that they both said. "We are only employees, please try to co-operate with us". Questioned as to why she did not try to leave the room, she gave these answers: "because I felt very dizzy at the time. Their bosses told them to follow me wherever I went so I knew that even if I went out to the lobby or the corridor, they would follow me". At the end of her examination-in-chief when she was asked about what their bosses had told them, she said that the posses had said that in the toilet and she did not hear what was said. Continuing with her reasons as to why she did not leave the room, she said: "I would think of my reputation, I was ashamed of that. If they would follow me like that, I would rather not go out. Also I did not want to escape. I did not want to leave behind a bad reputation. I could not lock the door. During their stay in the room they did not prevent me from do anything. They did not say anything relevant to the case. They did not say anything to me about my bodily movement".

8. In cross-examination she said sire could not let her family know she had anything to do with loan sharks. And at one stage the following exchanges occurred:

"Q. Was your hotel room ever locked?

A. It was not locked. I could go out and come in freely.

Q. Did you attempt to leave the room?

A. I had not considered that.

Q. Not one item of physical harm was done to you by the 2 accused?

A. Right.

Q. There was nothing to prevent you leaving your hotel room?

A. But they followed we even when I went to the door of the room and their bosses said "Move and I won't be kind to you". This is a threat and intimidation. How do you expect me to answer your question.

Q. But you made no attempt to leave the room?

A. I have no need to leave. I knew that many people were watching outside why should I leave.

Q. The truth of the matter is you were ashamed to contact any of your family because you were ashamed of gambling?

A. Yes.

Q. This case is not about threats and imprisonment but because you feared loss of face.

A. First, I feared personal safety. Secondly, they might let my family know about this. According to Japanese law a wife who has done this wrong has to leave the family."

9. The learned magistrate found PW1 to be a sincere woman who told the truth while giving evidence. Having accepted her evidence that neither appellant had physically restrained her, that she was at no time physically restrianed from leaving the room, the learned magistrate nevertheless found that the offence had been committed because the fears which PW1 held has the effect of inhibiting her freedom of movement to the same extent as if she had been physically restrained. In dealing with this part of the case, the learned magistrate said there were two reasons which weighed equally with PW1 in deciding not to leave the room.

10. The first was the threats and intimidation uttered by the bosses of the appellants to her in the room. And the second was put by the learned magistrate as follows:

"PW1 also referred to something else which operated on her mind to stop her leaving the room and I quote her own words '.... I knew that even if I went out to the lobby or the corridor they would follow me. I would think of my reputation, I was ashamed of that. If they would follow me like that I would rather not go out ..... I don't want to leave behind a bad reputation.' "

11. 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 threatend by the culprit and feared by the victim in exercising freedom of movement before finding the offence of false imprisonment has been established.

12. On the learned magistrate's findings, it was not the earlier threats and intimidation which alone kept PW1 in her room, but those threats coupled with her fear that her reputation would be damaged, if it became known, that she was assoicating with loan sharks. If there had been no risk to her reputation, she may not have felt there had been any infringement on her right to move beyond her room, in which case it could not be said that it had been proved beyond a reasonable doubt that she had been unlawfully detained therein.

13. The learned magistrate's findings therefore did not support a conviction on the charge as laid. The appeals must, therefore, be allowed and the convictions and sentences quashed.

Representation:

Mr. Steve Chui, S.C.C. for Crown Prosecutor

Mr. Hugh F. Boa of M/s Paul Kwong & Co. for D1: CHEUNG wan-ing

Mr. D.B. Gunston of M/s Hampton, Winter & Glynn for D2: AU Hon-suen