Tam Ching-to and Others v. The Queen

CACC000341/1982

BETWEEN

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Coram: Roberts, C.J., Li & Silke, JJ.A.

Date: 9 November 1982

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JUDGMENT

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Silke, J.A.:

Preliminary

1. The applicants apply for leave to appeal against their convictions on the third charge, the false imprisonment of Yeung Han-wai between the 2nd and 3rd days of October 1981.

2. The other two charges on the charge sheet were (1) conspiracy to blackmail and (2) blackmail.

3. At the opening of the trial the Crown elected to proceed on the conspiracy charge and eventually the applicants were all acquitted of that charge.

Background

4. The evidence as to false imprisonment came from Yeung. The trial judge sought corroboration of that evidence from the exculpatory extra judicial statements of the applicants. These were, by themselves, equivocal and contained no direct admissions.

5. It is clear from the evidence that Yeung was deeply involved in assisting in an arrangement to sell gold which he thought might be stolen.

6. He had contacted Wong Kwok-fai (Dl), a workmate, who agreed to help in the sale, and Dl's friend, TAM Wah-hang (D9) who was to act as a go-between.

7. Yeung, who was in financial trouble, lived in October 1981 in a flat at Fortress Hill with his girl friend, Yiu, her friend Miss Au Yeung and two men referred to throughout as "Ah Ming" and "Ah D". Miss Au Yeung had a boy friend, Norman Law, who visited the premises on occasions to spend the night with her.

8. Ah Ming and Ah D were the purported sellers of the gold. Various meetings were held involving D1, D9, TAM Ching-to (D2) and others not identified. Contact between Ah Ming and Ah D and this group was made partially through the assistance of Yeung.

9. Finally there was a meeting at the Kwong Wah Hospital on the 1st October in which the participants were a man called Lo, another called Ah Chi, D9, D2, an Indian man, Ah Ming and Yeung.

10. From the hospital, D2, Lo, the Indian, Ah Chi and another male left for the New Territories. The arrangement was apparently that half the money, the price being $300,000, was to be paid first, the gold handed over and a hostage held pending the payment of the other half.

11. Ah Ming had remained behind with Yeung and D9. Shortly after the buying party left, he indicated to Yeung that D9 should be given the slip.

12. This having been done, Ah Ming and Yeung went for tea and later for a sauna. When Ah Ming's pager rang, he and Yeung went to Waterloo Road, where an unidentified male got into the car in which they were travelling and handed Ah Ming a bag. From this bag Ah ming took out and counted $70,000. He gave this to Yeung who was asked to conceal it. Ah Ming then left having arranged to meet Yeung later at the Hilton Coffee Shop. Yeung went there but Ah Ming did not turn up. He did however meet his brother to whom he gave the $70,000, after which he went back to his flat at Fortress Hill.

13. At about 12:20 a.m. on the 2nd October Dl telephoned Yeung, asked him what had happened to the money and arranged to meet him in the Dickens Bar at the Excelsior Hotel.

14. At the entrance to the hotel when he arrived, Yeung saw D9 and Ah Choi. It was suggested to Yeung that he should cross the harbour and a reference was made by Yeung to the buyers having used counterfeit money.

15. The party crossed the harbour and went to a flat in Hung Lok Street, where they joined D1, D4, D5 and others unidentified.

16. Yeung was told that, far from a successful sale having been completed in the New Territories, the buying party had been set upon and robbed of the sale money. D2 had been injured. Yeung was asked to help find Ah Ming and Ah D. He was lightly struck one or two blows on the back by one of the party.

17. Yeung then went back to his flat in Fortress Hill with D4, D5, D9 and three unidentified males.

18. Miss Yiu and Miss Au Yeung were at the flat. Norman Law arrived later. The party waited there for the return of Ah king and Ah D who, not surprisingly, failed to arrive. Law and Yeung spent the remainder of the night with their respective girl friends. Each couple was in a separate room and alone. There were telephones in the bedrooms used by Law and Yeung.

19. The two girls left the flat at about 8 a.m. on the morning of the 2nd October, but Yeung remained there until later in the day, when be returned to the Hung Lok Street flat, accompanied by Norman Law and some of the defendants. At the Hung Lok Street flat were D2, D4, D5, D7, D8 and D9.

20. At about 5 p.m. that day Yeung, together with D2, D4 and D7, went to Yuen Long. On the way Yeung was taken to the robbery scene, having expressed an interest in viewing it. From there the party went to a flat in Kau Yuk Road, Yuen. Long, where, at various times, D2, D5, D6, D7 and two unidentified girls were present.

21. The matter of the $70,000 given to Yeung had bean first mentioned by Yeung on the afternoon of the 2nd October in the car travelling between the Hung Lok Street flat and the one in Yuen Long. Those who were of the buyers party wanted it back believing, not without reason, that it formed part of the proceeds of the robbery.

22. In the Kau Yuk Road flat, there was a conversation between the buying party and Yeung concerning the raising of $240,000 and Yeung was asked to get this.

23. Various telephone calls were made to Law, who was then a away from the flat, to Miss Yiu and to Yeun's sister. These calls were mainly made by Yeung. Law eventually brought 150,000 - the $70,000 having been reduced to that sum in some manner unexplained - together with a further $10,000 raised from a dance hostess - to the flat in Kau Yuk Road. Law had made a frustrated attempt to keep the extra $10,000, explaining in evidence that this was for "medical expenses". In the course of that explanation he made use of triad terminology. He was an admitted triad member, as indeed most of those involved in this matter seem to have been.

24. Yeung remained in the Yuen Long flat until about 8 p.m. on the 3rd October, when the police burst in carrying guns. While he was there, the two unidentified girls had gone out at the request of D2 to buy some food, while Yeung watched television. At about 10 p.m. on 2nd October, Yeung went with D2, D7 and some other unidentified males, who arrived at the flat after Yeung, to a restaurant about three streets away for a meal. While they were there Yeung used the phone at the counter, and away from the group, to talk to his girl friend. The whole group left at about 12:30 a.m. As they did so, they passed two uniformed police officers.

25. When they had returned to the Yuen Long flat, D7 said it would be alright for Yeung to remain in the flat that night. There was a conversation between D7 and Yeung as to Young's responsibility for recovering the $240,000.

26. At about 1:30 a.m. on the 3rd October, Yeung rang his sister to tell her he was alright. He rang her again later to ask her to tell his parents that he was alright. He also telephoned his girl friend with the same message. He was asleep at the time the police arrived. Superintendent Burbidge-King who was leading the police party says that when he saw Yeung he was distressed and crying. Yeung said in evidence that he was frightened by the arrival of thy police carrying guns.

False imprisonment

27. What is the evidence which supports the false imprisonment charge?

28. It begins at the Excelsior Hotel, when Yeung said that Ah Choi asked him to cross the harbour, that he had first refused but that Ah Choi asked him to look at his leg and it "seemed" to Yeung that Ah Choi had something "wrapped" to his leg. Yeung said he was frightened and further that Ah Choi intimated to him if he did not go "he (Ah Choi) would not be kind to me". When he entered a taxi with Ah Choi, Ah Choi produced a knife.

29. In cross-examination this evidence was considerably weakened:

30. At the flat in Hung Lok Street, D2 asked Yeung whether he could help them to find Ah Ming and Ah D. When he said that he did not know where to find them, he was struck on the back by someone.

31. After the return to Fortress Hill, where they waited for Ah Ming and Ah D, Yeung said two things in his evidence, upon which the Crown rely: (1) that as far as he was aware he was not free to leave the flat and (2) that "they" watched over him all the time.

32. In cross-examination he agreed that he had suggested that the group should go back to Fortress Hill to wait for Ah Ming and Ah D and that he had warned the group that the two might have guns. He also said that he was not allowed to use the telephone in the bedroom, which was occupied by himself and his girl friend while they waited in Fortress Hill.

33. The bare statements that he felt he was not free to leave either the flat at Hung Lok Street or the one in Yuen Long, that he was being watched, that he could not use the phone in Fortress Hill and that he was told to raise $240,000 were never elaborated upon. The evidence of his sleeping with his girl friend does not support the impression given by those statements. Further, he had a conversation alone with Norman Law in the bedroom.

34. The evidence of the girl friend, Miss Yiu, does not suggest that there had been any threat, or use, of force to detain Young, at least up to the time that she left on the morning of the 8th October. Law had even gone with Yeung to keep him company when they ventured across the harbour to Hung Lok Street later that morning. He impressed upon Yeung that he should do his best to help the group.

35. Across the harbour, Yeung proffered information as to places both in Kowloon and in Hong Kong where Ah Ming might be found and offered to go with the group to these places to seek him out. He was by no means keen to be at his Fortress Hill flat when and if An Ming returned there.

36. He agreed that he decided to ask his brother to return $50,000 to the group in order to show his sincerity in this affair.

37. His penultimate answer in cross-examination was to the effect that he felt a moral obligation to assist the group because Ah Ming and Ah D had taken money from them.

38. In making the bare statements to which we have referred, he never said directly that he had been frightened, apart from the original incident at the Excelsior Hotel. The trial judge acquitted of the charge of conspiracy to blackmail because he thought it unsafe to convict on Yeung's uncorroborated evidence. But on the charge of false imprisonment, he said that he did believe Yeung's evidence. In our view, even if the judge were right in placing reliance upon Yeung, we do not think that there was sufficient evidence, even giving such weight as is proper to the statements made by the defendants, to justify a conviction.

39. There may well have been pressures placed upon Yeung in the course of the few days he spent with the defendants - none of the participants are very savory characters - but what exactly were these pressures, and whether or not they amounted to force or threats of force, is not sufficiently clear from the evidence.

40. Mr. Cotsen for the Crowd has urged us to take the flavour of the evidence as a whole. He submits that what Yeung said, and the contents of the statements, establish that he was with the defendants and that he was under pressure.

41. Assuming that this was the position, it is not enough. The Crown must prove positively that the victim of a charge of false imprisonment was detained against his will and that the defendants intended that he should be.

42. In his reasons for verdict, the judge commented -

"I believe he was frightened out of his wits and was probably too frightened to try and seek his escape when oblique opportunities were presented to him."

43. He doubt if the evidence supports such a finding of fear, as the victim himself only refers to being frightened at the Excelsior Hotel and when the police arrived with revolvers.

44. He had a number of chances to escape, or to telephone for help, which he did not take.

45. He was not asked why he did not avail himself of these opportunities. This is a pity, since such questions would have helped the court in deciding how far he was being detained against his will by virtue of the intention of the defendants to restrain him, and how far it was his own state of mind which prevented him from leaving.

46. The Crown is not assisted by the various cautioned statements which were in evidence, none of which amount to an admission that any of the defendant intended to detain the victim a against his will.

47. In the event we think the convictions to be unsafe. The applications for leave to appeal are granted. The appeals are allowed and the convictions quashed.

Representation:

J.D. Donnelly, Esq., Q.C. & V.T. Nguyen, Esq. (Raymond Tang Co.) for the Appellants.

S.H. Cotsen, Esq. for Crown/Respondent.