The Queen v. George Kong and Others

CACC000397A/1984

BETWEEN:

Coram: Roberts, C. J., McMullin, V. P., & Silke, J. A.

Date: 22 November 1984

Date of Delivery: 5 December 1984

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JUDGMENT

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Roberts, C.J. -

Preliminary

1. The four applicants, who were respectively the first, second, fourth and fifth defendants (D.1, D.2, D.4. D.5) at the trial, were convicted of false imprisonment.  D.1 was sentenced to 2½ years' imprisonment and D.2, D.4 and D.5 to two years' imprisonment.

2. D.1 was also convicted of blackmail and sentenced to 2½ years, the sentence to run concurrently with that imposed on the false imprisonment charge.

3. D.2 was acquitted of falsely pretending to be a public officer. LONG Shing-yiu, the third defendant(D.3) was acquitted of false imprisonment.

4. D.1, D.2, D.4 and D.5 all seek leave to appeal against both conviction and sentence. We deal at this stage only with the question of conviction.

Outline of facts

5. On 12th September, 1983, WONG Ping-keung (P.W.1) was asked by a friend of his, named CHAN Ming, if he could find a purchaser for some loose diamonds which were for sale.  Wang spoke to TAI Yuen-yam (P.W.3), who later informed him that he had found a potential buyer.

6. Arrangements were made for all parties to meet at a restaurant in Tsim Sha Tsui on the morning of 13th September.  At this meeting, P.W.1 was introduced by P.W.3 to George Kong (D.1), who took charge of the negotiations with the seller, a man referred to as "CHID Chak", who did not give evidence at the trial.

7. It was arranged at that meeting that Chiu Chak should allow D.1 and an expert nominated by him to examine the diamonds and a purchase price of $110,000 was agreed. D.1 promised P.W.1 an introduction commission of $5,000 if the sale was completed.

8. Later that evening, P.W.1 was summoned to the Nam Ah Restaurant, expecting to receive his commission there. But when he arrived, D.1 told him that he had been cheated because, after the money had changed hands, he found that the diamonds had been switched and that he had been given a quantity of imitation stones.

9. D.1 told P.W.l that it was his responsibility to get back the money, though P.W.1 protested that he had been no more than a middleman and had seen neither the diamonds nor the money.

10. P.W.1, a friend of his, TSANG Hin-choi (P.W.2) and D.1 and some of his friends travelled to another restaurant, the Kam Moon Tong Restaurant, where it was expected that Chiu Chak would be, though he did not turn up.  D.1 told P.W.3, a member of his group, and D.5 to take P.W.l back to the Nam Ah Restaurant to wait there for him. P.W.2 decided to stay with P.W.1.

11. At about 11.30 p.m., D. 1 arrived with D. 3, and others.  P.W.1 and P.W.2 were taken against their will to the Miramar Cafe by D.1, D.2, D.3, D.5 and P.W.3.

12. Early on the morning of 14th September, P.W.1 and P.W.2 ("the victims") were taken in separate vehicles to the Singapore Hotel where D.1 booked Room 407, to which the victims were escorted by D.1, D.5 and four others.  Soon after their arrival, D.1 told the victims that they could not leave and that they were being kept there until they repaid the money lost on the diamonds.

13. D.1 and D.5 slept most of the night there. D.2 left after a while.  A guard remained on the door all night.

14. On 15th September, P.W.1 attempted to telephone for police assistance, which attempt was stopped by D.5, who alerted the others.  As a result of the P.W.1 was assaulted by D.1, D.5 and other men in the room.

15. In case the police attempted to trace the call, D.1 made P.W.2 book into Room 411 in the same hotel.  Both victims were forced by D.1, D.5, P.W.3 and others to move there. In this room, D.1 demanded that P.W1 should sign two I.O.Us. totalling $150,000.  He accompanied this demand by physical assault.  P.W.1 signed the I.O.Us., which later disappeared.  This was the subject of the blackmail charge.

16. P.W.1, P.W.2 and P.W.3 testified that D.1, D.4 and D.5 were present at various times in Room 411, during 15th September.

17. On 16th September, the victims, accompanied by D.1, D.4, D.5 and P.W.3, were taken in two cars to the Bangkok Hotel, where D.1 gave directions to P. W. 2 to remain as hostage with D.5 and others, while he went with P.W.1, P.W.3 and D.4 to Tsuen Wan, to obtain money from P.W.1's father-in-law.  Both P.W.1 and P.W.2 were able to escape from their guards and report to the police during the course of the day.

Grounds of Appeal

18. It was not contended that, if the evidence of the victims and of P.W.3 is accepted, there is insufficient evidence to justify the convictions.  We have no doubt that there is.

19. We must, however, deal with the three main grounds of appeal which were advanced -

(i)	that the discrepancies in, and the contradictions between, the accounts given by P.W.1, P.W.2 and P.W.3 were so significant that the judge should not have relied upon their evidence;
(ii)	that the judge misdirected herself as to the law governing corroboration, though it was admitted that she had correctly categorized P. W. 3 as an accomplice;
(iii)	that in any event the convictions could not stand because prosecuting counsel had commented, in his final address to the judge, on the fact that none of the defendants had given evidence, either upon the voir dire or on the main issue.

Discrepancies

20. In his final submissions, counsel for the defence listed in detail the inconsistencies which he identified in the evidence given by the three main prosecution witnesses.

21. So it cannot be said that the judge was under any misapprehension as to the presence of discrepancies in the evidence of the main prosecution witnesses.  She comments at page 4 of her judgment -

"The main witnesses for the prosecution, P.W.1, P.W.2 and P.W.3 have been thoroughly cross-examined by Mr. Cheng.   He has left no stone unturned. Every discrepancy as been seized upon and brought to light. .... I have looked at the discrepancies between their evidence in their context and examined them in the circumstances of the case.  Without listing them all here, I do not, for example, find such discrepancies as arise between what PWl and PW2 have said in relation to the length of time they have known each other or how they viewed their relationship to suggest that both persons make unreliable witnesses.  Such discrepancies stem from the sort of differences that arise from the exercise of an individual's power of observation, retention and opinion."

22. Some emphasis was placed by counsel for the appellants in a passage at p.5 of her judgment in whirch, dealing with omissions and inaccuracies in the original statement given by P.W.1 to the police, when compared with P. W. 1's evidence, she comments -

"Both D.1 (the police officer who took the statement) and PW6 (the police officer on duty at Tsuen Wan Police Station) said that PW1 was 'very excited and scared'.  He was confused in his speech and between his state at the time and the attitude DWI had, knowing that the matter would be referred to Tsimshatsui Police Station I am not surprised some details were omitted and one or two had been inaccurately recorded. Again I have examined these discrepancies in their context and do not feel they detract from PWl's credibility as a witness."

23. This comment is inaccurate in that the officer who recorded P.W.1's initial statement did not know, until he had completed it and presented it to his superior officer, that the case was to be transferred to another police station. It is therefore wrong to regard this as a factor in the recording of the statement and as a possible cause for some of its inaccuracies. Nevertheless, she decided that these discrepancies did not detract from P. W. 1's credibility.

24. We have repeatedly said that an appellate court should not interfere with the assessment of a trial judge of the credibility of a witness, whom it has not seen or heard. Only if it appears to the appellate court that the trial judge has failed to notice the existence of discrepancies, or has come to a finding of credibility in the face of evidence of so conflicting a nature that no reasonable court could accept the witness as credible, should it interfere.

25. There are weaknesses in the evidence for the prosecution; there are differences in the evidence given by their main witnesses. But we cannot say that it would be right for us to interfere with the judge's findings of credibility.

Corroboration

26. The judge recognized that P.W.3 was an accomplice, in the following passage from her judgment at p.5 -

"I have also warned myself of the obvious danger of relying on the evidence of PW3 who is an accomplice and have looked for corroborative evidence whenever possible.  I have used the cautioned statement of the defendant in question, that is to say D2, D4 and D5 only against himself."

27. Had the judge been addressing a jury, it would have been necessary for her to go further than this and to explain to them the law governing corroborative evidence.  She would have been obliged to tell them that it was open to them, if they believed P.W.3, to convict on his evidence alone, notwithstanding that it was not corroborated; and would have had to point out to them such evidence as was capable of amounting to corroboration.

28. She does not in her judgment specifically say that she accepts P. W. 3 in general terms as a "credible witness".  It is however, obvious from various passages in her judgment dealing with the case against each defendant that she accepts the evidence of P.W.3, on a large number of issues.

29. Apart from having acknowledged in the passage a quoted above that she had looked for corroborative evidence where possible and that she found it in the cautioned statements of D.2, D.4 and D.5 she does not identify in terms that evidence which she regards as corroborative,

30. It is, however, abundantly clear from the record that the evidence of P. W. 3, who was present with the victims at all important stages of this affair, is corroborated by the evidence of the victims in most of its material particulars. We thus see no substance in this ground.

Reference by prosecution counsel

31. During his address to the judge, at the conclusion ion of the defence case, counsel for the prosecution is recorded as having said -

"Defendants not given evidence so no defence has been offered.  What has been offered by Bar table is not defence or evidence."

32. Section 54(1)(b) of the Criminal Procedure Ordinance (Cap. 221) states -

"The failure of any person charged with an offence, or of the wife or husband as the case may be of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution."

33. In Yu Yuk-kwong & Others v. The Queen^(l) this court commented -

(a)

"We are inclined to the view that the section forbids even a mere reference by the prosecution to the fact that the defendant (or his wife) has not given evidence.  Thus a comment that 'the defence has given no evidence on this matter' must be taken to infer that the defendant has failed to give evidence and so to amount to an infringement of the section."; and later

(b)	"A breach of this provision will result in a quashing of the conviction or, at the least in appropriate cases, in an order for a re-trial."

34. In The Queen v. SIN Cheong-shing & YIM Kwok-keung⁽²⁾, another division of this court adopted the observations in Yu⁽¹⁾, although those remarks could properly be said to have been obiter. However, the court disagreed with the passage in Yu⁽¹⁾ which suggested that a breach of section 54(1)(b) of Cap. 221 "will result in the quashing of a conviction".

35. It pointed out that "it must be open to a trial judge to correct an error made by counsel in the course of an address.  Whether an error is capable of rectification depends, of course, on the circumstances of each case as does the time when and the manner in which the correction is made." With this we agree.

36. We have been referred to R. v. Morley⁽³⁾, R. v. Hunter⁽⁴⁾ and R. v. Dickman⁽⁵⁾, the effect of which is that, if mention is made before a jury of the failure of an accused or his wife to give evidence, this is unlikely to result in a conviction being upset if the effect of the mention is removed and there is no miscarriage of justice.

37. In this case the reference by prosecuting counsel contained no adverse comment and the trial was before a judge alone, who can properly be assumed to have disregarded such comments as were made.  Had it been a jury trial, we think that the judge could and should have corrected, at the appropriate time, any wrong impression the jury might have gathered from the remark of the prosecutor.

38. Thus, although there has been an infringement of the section, we have no hesitation in concluding that it caused no injustice and that the proviso can be properly applied.

39. We suggest, however, that the time has come when section 54(l)(b) of Cap. 221 should be amended, so as to restrict its application to cases in which counsel for the Crown makes an adverse comment, rather than a mere reference, to the fact that no evidence was given for the defence.

40. The applications for leave to appeal against conviction are refused.

(1)    [1979] H.K.L.R. 585 at p.594.

(2)    Crim. App. 595/83

(3)    [1966] C.L.R. 332

(4)    [1969] C.L.R. 262

(5)    [1910] 5 C.A.R. 135

Representation:

Mr. G. Alderdice (Y.K. Poon & Co.) for D.1, D.2 & D.4.

Mr. I. Payne (D.L.A.) for D.5

Mr. F.C. Whitehouse, Senior Crown Counsel, for Respondent.