The Queen v. Lo Ming-yin

HCMA000749/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 749 of 1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes In Court

Date of Hearing: 23rd September, 1988

Date of Delivery of judgment: 23rd September, 1988

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J U D G M E N T

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1. The Appellant was charged in the Magistrates Court with two others with having committed the offence of false imprisonment. The allegation was that the three of them on the 25th April, 1988 in Kowloon City unlawfully imprisoned the victim and detained him against his will.

2. He pleaded not guilty and three withesses gave evidence for the prosecution. Neither the Defendant nor any of his co-defendants gave evidence at the trial.

3. The evidence of the victim was that the Appellant with others carme to the restaurant where he victim was working and asked him to accompany them to meet "the Big Brother". The victim said that he thought the Big Brother was nearby so he went with them but after they had gone a short distance from the restaurant, he realised that he was being taken to what he described as a "far off place" so he refused to go any further.

4. The three then forced him towards a taxi but they were then observed by some police officers, two of whom went forward to the group. The evidence was that when the officers came up to the victim and the Defendants, the victim was under the total restraint of the Appellant and his co-accused.

5. The Magistrate convicted the Appellant and he now appeals against that conviction. He has filed three main grounds of appeal, the first of which is basically an allegation of bias on the part of the Magistrate in the course of the trial defence counsel asked one of the police witnesses to produce his police notebook. The record indicates that the Magistrate at that time queried why the request was made as apparently the officer had not made use of the notebook whilst giving his evidence. Eventually after some discussion between the Magistrate and counsel for the defence, there was an adjournment. After the adjournment defence counsel again asked, "could I look at the notebook of the witness" and the Magistrate then said, "Can we show the notebook to the derence?"

6. Mr Lee who appears for the appellant on this appeal was also his counsel at the trial. He tells met hat he took no objection to the Magistrate's use of "we" at the time it was spoken as he didn't hear it because he was busy studying the notebook at the time .It seems to me that the use of that expression discloses no bias on the part of the Magistrate at all. It was simply a familiar Royal use of that pronoun which meant no more than was there it a basis in law upon which Mr Lee could inspect the notebook.

7. The ground also alleges that the Magistrate found the two police witnesses' evidence unreliable and yet also found their evidence was supportive of the victim's evidence, what the magistrate said about the evidence of the two police witnesses was that "their memories were not all that reliable". That was an observation which he made because of discrepancies in their testimony about what they actually saw. The mere fact that the two police witnesses may have varied in their descriptions of the incident did not mean that their evidence could not support the evidence of the victim provided that what they described was conduct on the part of the Appellant and his coaccused aimed at restraining the victim That was what the victim described so that the Magistrate was quite right to say having found the victim to be an honest and truthful witness that the evidence of 110 police officers supported his essential allegation.

8. The remaining part of ground one attacks the Magistrate because of the way in which he reconciled the discrepancies. Again, the magistrate pointed to the main discrepancies of the witnesses and gave sound reasons for holding that those discrepancies were explicable in a way not inconsistent with the credibility of the witnesses.

9. It is alleged that the Magistrate had no basis no which to find that the Appellant and his co-accused were acting pursuant to a common design. There is no merit whatsoever in this submission because the evidence was clear that they were so acting.

10. The second ground alleges that the Magistrate did no find proved all the elements essential to be proved to support a conviction on a charge of false imprisonment. It is true that the learned Magistrate has not spelt out specifically that he found the elements proved using the terminology Archbold uses to describe the elements. The learned Magistrate has, however, come to the conclusion that the victim was totally restrained that the restraint was against his will and that it was unlawful. It is said that the Magistrate could not have found total restraint, could not have found the element against the will of the victim because he used phrases such as "force-marched", forced to do this, forced to do that. I find no merit whatsoever in that contention.

11. It is alleged that the magistrate was wrong in law when he said, "It is trite law that to constitute false imprisonment the knowledge or voluntariness of the prisoner is immaterial". Mr. Bruce pointed out that there is nothing wrong with that as a statement of the law; all that can be said to be wrong with it is that it was a matter completely irrelevant to he circumstances of this case. To my mind that is the only criticism that can be made of it. I find nothing at all in the grounds put forward to support his appeal against conviction and I must therefore dismiss the appeal.

Representation:

Mr. A. A. Bruce; C.C. for the Crown.

Mr. LEE Wing-kin (Alick Au & Massie) for Appellant