The Queen v. Lai Kam Keung

HCMA001145/1991

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO.1145 OF 1991

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BETWEEN

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Coram: Hon Hooper J. In Court

Date of hearing: 30 January 1992

Date of delivery of judgment: 30 January 1992

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J U D G M E N T

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1. The appellant, a Chinese male, aged 17, was charged with two other Chinese males, aged 29 and 32 respectively with blackmail and false imprisonment. The appellant himself also faced a charge of lending money at an excessive interest rate. The hearing took place on the 14th, 15th, 17th and 21st October 1991 on which latter date the magistrate reserved his judgment until the 25th October.

2. In that judgment, the magistrate acquitted all the defendants, on the charges they were facing with the exception of the one charge of false imprisonment against the appellant (who was the 1st defendant).

3. It is against that conviction that the appellant appealed to this Court. Having allowed the. appeal, I now state my reasons why.

4. On the 25th October, the magistrate recorded his judgment as follows :-

"The main witness for the crown in this case involving 3 defendants is of course PW1. It must be remembered straight away that in relation to the 'A' charge she is giving evidence about something that happened over a year ago now - and in relation to the other charges. Something that happened now some 8 months ago. I say straight away that I have great difficulty in being sure myself of the accuracy of what PWl said in examination in chief in relation to the 'A' charge I have no doubts that she did approach Dl for a loan of 5000 and that the repayment were to be of $580 each over a period of 10 days - payable each day. What I cannot be sure beyond a reasonable doubt of is how much, she in fact repaid and how many payments of $80 interest she made. It was apparent in cross-examination of PWl that she herself possibly because of the time lapse was not certain, as she admitted as much in cross-examination. I think therefore I need go no further in relation to the 'A' charge and say I am not satisfied prosecution have proved 'A' charge beyond reasonable doubt against D1 and he is acquitted of that charge. In so far as the allegation of blackmail against all 3 defendants is concerned this relates to the incident at Tsui Wah Restaurant in the early hours of 20th February last. Once again I have the evidence of the victim and the 3 cautioned statements that each defendant made. The victim in her evidence said that there was a conversation with Ah Lung (D3) in the restaurant and the other 2 defendants were present. It's clear from the cross-examination of the victim. By counsel for D3 that at this particular time the victim was overcome with alcohol and in fact she admitted that she was drunk. She also accepted that her mind was not clear after she had consumed alcohol and that this would partly explain the reason for the discrepancies in her evidence to the court and her various statements to the police. I consider this to be a substantial point because effectively I am left in a position as to not being sure beyond reasonable doubt where the truth lies due to the victims state of mind. Despite the cautioned statements going some way to rectify the situation so far as the crown are concerned - due to my finding as to the credibility of PW1, I do not think I can give much weight to the statements and even if I did, a close analysis of each defendants statement confirm that they are probably exculpatory and put the blame on each other rather than consisting of unequivocal admissions. There being no further evidence in relation to the blackmail, I say I am of satisfied the prosecution have proved this charge beyond reasonable doubt and each defendant must be acquitted.

Dealing with the false imprisonment - I deal firstly with D3. He was not ever present at the flat at the time - the evidence against him comes from PW1 when she said that it was D3 in the restaurant who told D1 and D2 to take her (the victim) to D1's flat. I have already dealt with the credibility of the victim in relation to the blackmail and the same considerations quite obviously apply. Therefore D3 must be acquitted.

In so far as D1 is concerned however I consider the prosecution evidence to be reliable in relation to this charge, it was indeed to D1's flat that the victim was taken and I believe her when she said she asked Dl to allow her to leave - but this request was refused. There is corroboration of the victims evidence to be found in the evidence of PW2 who said she spoke to Ah Keung on the telephone who told her to bring along $200,000 to get her sister back. I say I am satisfied beyond reasonable doubt prosecution proved this charge against D1 - defendant is convicted accordingly on 'C' charge."

5. In his statement of findings, the magistrate explained in more detail why he convicted the appellant on that charge. He said :-

"3. In relation to the charge of false imprisonment the allegation of the crown was that the Appellant took PW1 Madam LAW Yuk-ha to No.50 Kweilin Street, Flat B, 9th Floor in the early hours of 20th February 1991 and detained her there against her will.

4. Despite the fact that Madam LAW conceded she had been drinking that night and her mind was not very clear, it was not challenge by the Appellant that he took Madam LAW to his home in the early hours of 20th February 1991. I found as a fact and was satisfied beyond reasonable doubt that the Appellant did take Madam LAW back to his premises.

5. I further found as a fact and was satisfied beyond reasonable doubt that Madam LAW was not willing to accompany the Appellant to his flat as I accepted her evidence that she had asked the Appellant if she could leave, that request being met with the response that she could leave if she had $200,000.-

6. I found corroboration of PW1's evidence in the evidence of Madam MAK Sau-mei. She gave evidence to say that in the morning of 20th February 1991 she spoke to the Appellant on the telephone. She said that the Appellant had told her to bring $200,000. in order to get her sister (PW1) back. I accepted the evidence of this victim and had no doubt whatsoever that what she said was the truth.

7. PC 49598 gave evidence to say that at about 7:48 A.M. on 20th February 1991 he went to 9th Floor, No.50 Kweilin Street, where he located a number of people amongst whom was Madam LAW Yuk-ha. He said that Madam LAW made a complaint to him. This Police Officers evidence went unchallenged and I accepted what he said.

8. I found a case for the Appellant to answer on the charge and the Appellant elected not to give any evidence nor to call any witnesses.

9. At the conclusion of the case I found that the prosecution had proved each and every element of the charge of False Imprisonment against the appellant beyond all reasonable doubt and in particular I was satisfied that the evidence which I had accepted as to Madam LAW, being released only if she had $200,000. - was sufficient evidence of bodily restraint. I convicted the Appellant accordingly."

6. Mr Lambert Lee who appeared for the appellant, based the appeal on the ground that the magistrate was wrong to rely on the evidence of PW1 where -

"(a) there were lots of major discrepancies between her oral testimonies in            Court and her various statements to the police;

(b) PW1 was overcome with alcohol in that she was drunk; and

(c) simply because no challenge was raised by the appellant."

The second ground of appeal was that the learned magistrate erred in finding that the evidence of PW2 as to the telephone conversation that she had with the appellant was capable of corroborating the evidence of PW1. Ground 3 was that in all the circumstances of the case, the conviction was unsafe and unsatisfactory.

7. Mr Lambert Lee took me through the evidence and referred me in detail to many discrepancies in the evidence of PW1. They were, in fact, serious discrepancies of the sort which would throw grave doubts upon her credibility and reliability. Furthermore, she admitted in cross examination that she had been convicted in respect of an offence of dishonesty, namely theft. Mr Lambert Lee also criticised the magistrate for placing some weight on the fact that no challenge was raised by the appellant on some matters, when in fact the appellant was unrepresented during the hearing. Furthermore, it was clear from the evidence that PWl was very much under the influence of alcohol on the night in question. The magistrate was not prepared to convict the appellant on the other charges based upon her evidence, and indeed had acquitted the 3rd defendant.

8. So far as the second ground of appeal is, concerned, there was no dispute that the appellant had had a conversation with PW2 over the telephone. PW2's evidence was "he is the first one (D1 identified) he told me he had located my younger sister and he told me to bring along $200,000 to get her back. He then hang up the phone."

9. She was asked two questions by the appellant in cross-examination as follows :-

Q: When I spoke to you on the phone I did not tell you to bring along money to get younger sister back.

A: Disagree.

Q: I said since your sister is living in Shatin and she has to go to Court at 9"30 and she will not be able to come to Court in time and she has consumed alcohol. She said she would stay for a while and I would go to Court with her at the time after 9 a.m.?

A: Disagree, never said that."

10. Mr Lambert Lee compared this with what PW1 had said in the following passage :-

"I sat down and I told D1 I had to contact my elder sister. He said 'fine contact her' I contacted her and paged her. I talked to her on the phone.

While talking to my sister nothing happened to me. After I talked to her nothing happened to me. I just sat there. I sat on the sofa inside a room. Dl an D2 were inside the room with me. D1 took me to the room. They rented that room and it was shared by a number of people. I was to stay there until the morning when I had to go to a Court. At 9.00 a.m. I had to go to a Court. I was not allowed to leave by myself. D3 told them not to allow me to leave. He said so at the restaurant. They never said when I could be allowed to leave."

11. There is, therefore, a conflict between the evidence of PW1 and PW2 as to whether PW2 actually spoke to the appellant at all.

12. So far as ground 3 is concerned, Mr Lambert Lee relied upon the fact that the magistrate had placed some weight upon the fact that PW1 had made a complaint to the police officer which went unchallenged.

13. Miss Mohamed who represented the respondent suggested that the discrepancies were merely peripherial matters. The evidence of PW2 was consistent with the charge of false imprisonment. Some of the alleged discrepancies were not so much discrepancies but alterations. The evidence of the police officer went unchallenged. There was no doubt that PW1 was in the premises of the 1st defendant (the appellant) and the magistrate was quite sure that the offence had been committed.

14. I allowed the appeal on the basis that in all the circumstances of the case, the conviction was unsafe and unsatisfactory. The evidence of PW1 was quite clearly from an examination of the record, far from satisfactory, and indeed did not persuade the magistrate to be sufficiently reliable when he considered the other two charges the appellant was facing and also the charges against his co-defendants. Furthermore, the magistrate should have placed no weight upon the fact that Madam Law (PW1) made a complaint against the appellant. This was not a charge of a sexual nature, where the evidence that a complaint had been made at the earliest reasonable opportunity would have been admissible in evidence to show consistency. There was nothing to indicate that the complaint had been made in the presence of the appellant or that the appellant had reacted in any particular way indicating that he admitted the terms of the complaint. In these circumstances, it was wrong for the magistrate to place any weight upon the fact that a complaint had been made.

15. For these reasons, the appeal against conviction was set aside as well as the sentence.

16. There was no application for a retrial.

Representation:

Miss Yasmin Mahomed, C.C., for Crown

Mr Lambert Lee, inst'd by M/s Norman Yung & Co., for Appellant