R. v. Cheng Wai King

CACC000449/1994

IN THE COURT OF APPEAL

1994, No.449
(Criminal)

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Coram: Hon. Power,V.-P., Liu and Mayo, JJ.A.

Date of hearing: 19 September 1995

Date of delivery of judgment: 12 October 1995

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of forcibly taking a person with intent to procure a benefit for his liberation and two counts of kidnapping.

2. The first count alleged that the applicant, CHAN Siu-hung (1st accused) and FAN Kin-wah (2nd accused) between 3rd March 1992 and 6th March 1992, together with other persons, forcibly detained Chan Kwai-kin ("Mr. Chan") against his will with intent to procure a benefit for his liberation. The second count alleged that the applicant, together with the same persons, between 3rd March and 6th March 1992, unlawfully stole and carried away Tam Yu-kin ("Mr. Tam") against his will and the third count, having recited the same particulars, alleged the kidnapping of Du Gui-fong ("Miss Du"). Mr. Chan was PW1 at trial, Mr. Tam was PW2 and Miss Du was PW5. The applicant was found guilty on all counts after trial before Deputy Judge Pang and a jury and was sentenced to five years on each count with the sentences ordered to be served concurrently.

3. It was the Crown case that on 4th March 1992 Mr. Chan was staying in Room 4502 of the Island Shangri-La. It appears that Mr. Chan had been given $50,000,000 by Mr. Wang Chun-kit the Managing Director of the Wing Fung Group of Taiwan to invest. Mr. Wang Chung-san ("Mr. Wang"), who is named as a co-defendant in each charge, is the brother of Mr. Wang Chun-kit. Mr. Chan was in his hotel room with Mr. Tam, who was a business associate and Miss Du, his girlfriend, between 5:30 p.m. and 7:30p.m. on the evening of 4th March.

4. Mr. Chan and Miss Du left the room at about 7:15 p.m. and, having stepped into the corridor, Mr. Chan said:

"Suddenly someone from behind me grabbed hold of me by my neck and pointed something against my neck and then dragged me into an adjacent room ....."

He said that there are about ten persons included Mr. Wang, the applicant and the co-defendant Mr. Yeung On-tung ("Mr. Yeung").

5. The applicant in her cautioned statement admitted that she had hired the room. She said that she did so in order to have peace and quiet for a day or two and that coincidentally she had found that Mr. Chan who she knew owed money to connections of her boyfriend, a Mr. Tam Shing, was occupying a room nearby. She said that she telephoned Mr. Tam Shing who was in Malaysia and that later an unknown man came with others to her room.

6. Mr. Chan went on in his evidence to state that Mr. Tam was later brought into the room and that "all the way through he was being beaten". He said that he also was hit and injured. It was his evidence that Mr. Wang and Mr. Yeung told him that he was required to sign documents authorizing them to collect money from the proceeds of the sale of a building known as Po Lap Court. Mr. Chan said that he was kicked and that one of the men rang his solicitor but was apparently told by the solicitor that it was too late in the evening. He said that the applicant, Mr. Wang, Mr. Yeung and others then went into the bathroom. Mr. Chan said that he was later taken away by two men under restraint and that the party was followed by Mr. Tam accompanied by another two men.

7. There was evidence from Mr. Tam that in the presence of the applicant he was assaulted and put under pressure.

8. The applicant made the following admissions in her cautioned statement:

"I heard Chan Kwai-kin shout for help at the corridor. They pushed Chan Kwai-kin, a man and a woman into my room. Then I heard them say to Chan Kwai-kin; 'you owe someone debt. You have to repay the money. There is no use to hide. They then told Chan Kwai-kin to telephone lawyer Chung to ask him if the documents could be signed right now. The lawyer said that the staff were already off duty and that there was no one there to type the documents. They were told to go to the solicitors firm at around 10 a.m. the following day to sign the documents. They then took Chan Kwai-kin and another man away. They told me to follow the other woman home to get the chop and have it ready for signing in a document at the solicitors' office on the following morning. So she went with me and Wah Chai to her home at Happy Valley to get the chop."

She here admits that a person or persons used her room to keep surveillance upon the room occupied by Mr. Chan; that she heard Mr. Chan shout for help; that he and two others were pushed into her room; that she heard Mr. Chan being pressured to repay money and that he and the other man were then taken away.

9. Mr. Chan in his evidence said that:

"Before leaving that hotel room they only arranged Miss Cheng (the applicant) to take Du Gui-fong (Miss Du) to go to the address in Happy Valley where we lived to get the company seal but had no idea of where we were going."

He went on to say that he was taken to a hut in the New Territories as was Mr. Tang and that at about 10 p.m. Miss Du arrived at that hut. He said that some time after 1 a.m. he was told that he would be going so that he could sign and that a person to whom he referred as "Tai Lo" said "After you have done everything, after you have signed, then we would release her." He said that he was then taken in a van to the Gala Association in Lockhart Road. At this point that the applicant comes directly into the picture again.

10. We have her words in her cautioned statement for the part which she says she then played:

"At about 2:30 that night they paged me again and said that they had nowhere to spend the night. I suggested finally a place to play mahjong. They asked me if I got any place in Hong Kong side which I was familiar with. I then made arrangement and booked a room at the Gala Association in Wanchai. I then waited for them at the Gala Association. Shortly after 3 o'clock they arrived together and we started playing mahjong. After that I returned home to sleep and did not see them again."

Mr. Chan says that on arrival the applicant was with "Tai Lo" and others in the room. He says that at about 8 a.m. he was taken to the room opposite and told to sign and that Miss Du was safe and that when he had "done all the things" she would be released. He said that the applicant was not present at that time.

11. The part played by the applicant is further dealt with in the evidence of Miss Du as follows:

"Q. After you were taken into the next door room, what did you see and what happened?

A. After entering the room, I was pushed to move over to the chair to the dressing table. Chan Kwai-kin was pushed to where the first bed was by several men. Several men grabbed hold of him and one of the men held a fork against the back of his neck. Then Chan Kwai-kin said, 'Whatever matter it is, can take time to discuss', and then they spoke in foul language and then someone said, and then they said, 'You want to play tricks, you better be honest'. They threatened him like that, and I was very frightened because inside the room, there were only two people I knew, one of them was called Ah Leung whom I had met before, and the other one was Wang Fei -- oh, someone surnamed Wang, called something-Fei. And I said, 'Please don't do that. If there is anything, can take time to discuss'. I was sort of kind of pleading to them. It was because I didn't have any idea of what was happening. I was very very frightened. A short time afterwards, several men looked through the anti-burglar lens of the door to look outside and they were there saying, 'I seem to have seen Tam Yu-kin. Tam Yu-kin has seemed to have come out.' So they opened the door, went out and grabbed hold of Tam Yu-kin and brought him into the room where we had been. And during that period of time, there was sort of a commotion. Some men there were beating Tam Yu-kin and, according to what I saw, Ah Leung, who was one of them, he rushed forward and he was the one who beat him most hard. The whole group of the men together pushed Tam Yu-kin to come in and pushed him over to where Chan Kwai-kin was sitting.

Q. Now at that time, were the men that you had seen in the hall, including those who you identified this morning, were they in the room together with you and the other persons you are talking about now?

A. Then I cannot remember very well.

Q. Yes. What happened after Tam Yu-kin was brought into the room?

A. And then a female said something.

Q. Which female said something?

A. The female sitting over there. (It is not in dispute that she then indicated the applicant who was sitting in the dock.)

Q. What did she say?

A. 'You want to play tricks', meaning 'you can't expect you can be any smarter than us in playing tricks'. And the man who was holding a fork against Chan Kwai-kin's neck, well, they together further hit Chan Kwai-kin and also kicked him at his loin with feet and at that time there was kind of a commotion. I was very frightened and I was afraid that the fork which was held against Chan's neck might injure him, so I said to them, 'Please stop it, please stop it'. Then the one surnamed Wang, the one I have earlier mentioned to be someone called something-Fei said, 'So what are you going to do? Are you going to sign or not?' And they said, 'Telephone the solicitors firm and tell him to go to sign now'. And at that time I said, 'I have made an appointment to have a meal with a friend, may I be allowed to leave first?' I said so because I hoped that by leaving the room could go to call the police. Then CHAN Kwai-kin said, "The matter between us has nothing to do with the woman, can the woman be allowed to leave first?"

Q. Yes.

A. Then they said, 'No more nonsense, shut up'. The way they spoke looked as if they wanted to beat us up, that's why we dared not say anything further. And then someone did something which looked he telephoned a solicitor -- whether that was real, I have no idea -- and he said something like having to go out to sign something. Soon afterwards, they had a discussion. They went into the bathroom, I mean the female and those men went into the bathroom. They behaved that in a way that they looked to be very concerned, they looked that they were discussing things concerning us as to what to arrange for us. After the discussion they took Chan Kwai-kin out. If my memory is right, it seems that soon afterwards they also took TAM Yu-kin out and I was the one who was left behind. And the people who went out with me included the female, a follower of the female, the one called Ah Leung. As far as I can remember, a total of four persons went out with me.

Q. When you refer to the female, was there any other female in the room apart from yourself and the 3rd defendant sitting in, the dock?

A. No other female, just one.

Q. What happened next?

A. They escorted me to the place where I was living for the purpose of getting the company seal.

Q. Who escorted you?

A. The four persons who went out of the room together.

Q. Who were those four persons?

A. The female, the female's son, the female's follower and Ah-Leung.

Q. Who do you refer to by the female's follower?

A. Because I don't know what his name is.

Q. After you had been escorted from the room, where did you go?

A. Went down to the lobby of the hotel. Ah Leung then left first saying that he was going to fetch the vehicle or car. Then the two males and the one female I mentioned earlier together with me went to my residence in Happy Valley on board of a vehicle and I was sitting in the middle when on the vehicle. After arriving at my residence, the female made several phone calls from my home. She used the telephone to call Ah Leung telling Ah Leung to wait downstairs of where I lived in a car. At that time, I thought I would be all right then. Then the female said, 'The one surnamed WANG and Ah Fei have disappeared. It must be CHAN Kwai-kin has played tricks, so you cannot go away,' She said something -- words to the effect that I was needed to be a hostage."

If the evidence of Miss Du is true, there can be no doubt that the applicant was both fully involved in the attempt to extort money from Chan and that she unlawfully detained Miss Du.

12. In his first ground Mr. Macrae, who appears for the applicant, submits that the judge

"failed to explain sufficiently or at all what the defence was or what the real issues were. Having merely referred to the applicant's cautioned statement, he failed to explain how it could provide the applicant with any answer to the Crown case."

It is true that the judge did no more than advert to the statement and tell the jury "this is her explanation to the police regarding the incident, that is the incident which took place in the Shangri-La Hotel and in the Gala Mahjong Association". The transcript of the address of Mr. Raffell, counsel who appeared for the applicant at trial, covers almost 30 pages. Scant mention is made therein of the statement. Indeed the whole thrust of the defence was the unreliability of the Crown witnesses. At the very outset Mr. Raffell said:

"Because when it boils down to it, if you have any doubts about their evidence at all, you must acquit Madam Cheng. It's as simple as that, that is what the law is. So their evidence obviously is of vital importance."

When he came to refer to the statement he said:

"My friend made certain comments about the statement which I'm going to deal with now. I wasn't going to deal with the statement at all, because I was going to simply say to you, you can read the statement, you can make of it whatever you will; but he has made certain comments, so I will address you upon the statement just very briefly."

He later said:

"So what evidence do you have? You decide this case on the evidence. The evidence is 'I followed her there'. The evidence of Miss Du is 'she took me there' basically, but you have to decide whether you believe Miss Du or not. You don't have to decide whether you believe Miss Cheng in her statement. She doesn't have to prove anything to you. You have to be satisfied that what Miss Du said is the truth. If you are not so satisfied, then you must accept Madam Cheng's version."

Finally after a comprehensive attack upon the credibility of the Crown witnesses Mr. Raffell said to the jury:

"When you consider all of these matters, what you have to ask yourselves is this: having listened to Chan, Tam and Du, can I be sure individually, as an individual member of the jury, can you the jury collectively be sure that they are telling the truth? Can you say you have no more doubt than a reasonable doubt, you are sure that what they have told you is the truth?"

13. The judge in his summing-up made it plain, as had Mr. Raffell, that the real issue was the credibility of the three principal Crown witnesses. We do not consider that there was any unfairness occasioned by the way in which the judge left the statement to the jury. Had he made any comment thereon it must, inevitably, have been one damaging to the defence. The applicant in the statement had admitted that surveillance had taken place from her room, that the three principal Crown witnesses had been manhandled into the room, that Mr. Chan had been threatened in the room, that he and Mr. Tam had been taken away from the room, and that she had later reserved a room at the Gala Association to which the party made resort.

14. In Ground 2 it is submitted that the trial judge:

"having correctly referred to the elements of 'unlawfulness' in respect of the 1st count and 'without lawful excuse' in respect of the 2nd and 3rd counts, never explained at all what was required to be proved or whether the applicant could, on all the evidence (including her cautioned statement), provide or raise a reasonable excuse. Furthermore, he failed to give any direction whatsoever as to how far the applicant could legitimately go in assisting others to retrieve the money from PW1, and, therefore, what in the circumstances was lawful or what might amount to a lawful excuse."

15. It seems to be here suggested that it might have been open for a properly instructed jury to have taken the view that the applicant was motivated by a belief that the persons with whom she was associated were taking proper steps to obtain repayment of a genuine debt and that there was a failure to instruct the jury that this would raise a defence of reasonable excuse. It is, in our view, naive to suggest that any jury could have given serious consideration to such a possibility. It was the Crown evidence that the applicant was deeply involved in a plan to force Mr. Chan to pay money by forcibly detaining him, Miss Du and Mr. Tam.

16. Nowhere does the applicant suggest that there was no such plan. It was her defence that she was somehow peripherally and innocently involved therein. She admitted knowing of the existence of the alleged debt and of demands accompanied by the use and threats and force for its return. It was never suggested that she thought that what was being done was lawful and that she had assisted with that belief. The real issue as regards the applicant was whether the jury, given the admissions in the statement and the evidence of Miss Du, and to a lesser extent that of Mr. Chan and Mr. Tam, accepted that the applicant participated knowingly in the attempt to extract money from Mr. Chan.

17. The trial judge was clearly directing the jury as to the real issues when, dealing with the evidence of Miss Du, he said:

"She told us that she had left the hotel room, that is Room No.4502, with Mr. Chan a few moments ahead of Mr. Tam. When she stepped outside the room, she saw several men rushed up and grabbed Mr. Chan and he was pushed into an adjacent room and she was dragged in as well.

Once inside, she saw one of the men held a fork against Mr. Chan's neck and Chan was kicked. She also told us that Madam Cheng was also inside the room. She heard Madam Cheng telling Mr. Chan that if he wanted to play tricks, he would never be able to outsmart her. She also told us that she overheard conversations about signing certain documents.

Members of the jury, examine the evidence of the witnesses' account of how they were taken into the room by the various men and how they were treated once inside the room. This may assist you in deciding whether force had been used and whether they were taken against their will."

Later he said:

"We shall now look at the evidence of Miss Du from the time she was taken away from the hotel room in the Island Shangri-La. She told us that after PW1 and Tam were taken away, she was later escorted by Madam Cheng and other persons to the hotel lobby. She was taken by Madam Cheng and another person. She was not clear on this part of the evidence, whether there had been two men or one man, but the 3rd defendant, that is Madam Cheng, escorted her to the Happy Valley flat in a taxi. In the flat she collected the company chop.

Madam Cheng arranged over the phone for a car to pick up Miss Du. At one stage the defendant told Miss Du that she had to be held as hostage."

If the victim was detained in the circumstances detailed by the Crown witnesses there could be no belief that such detention was lawful. It was clearly wrong and unlawful. The real matter in issue was, as we have said, quite clear: Did the jury believe the evidence of the three principal Crown witnesses?

18. In Ground 3 the judge's direction as to lies is attacked. The judge said:

"But if you are sure that she did not lie for some such other innocent reason, then her lie can be evidence going to prove guilt."

It is submitted that such a direction was wrong in law.

19. Mr. Saw, who appears for the Crown, concedes, given that there were lies in the statement, that the direction was wrong. He submits, however, that any material lies only occurred when the applicant gave her reason for fleeing the jurisdiction saying that because she "feared that this incident might get me into trouble", she had "sneaked into the Mainland". Mr. Saw submitted that it was the Crown contention that the applicant's statement as to what occurred was not in essence untruthful. He submitted that it was, rather, a gloss upon what had happened in which the applicant had omitted full details of the part she played. We find force in this submission. Further, as we will indicate, when dealing with Ground 8, we have considerable doubt whether it can properly be said that she told any lie when giving her reason for fleeing the jurisdiction. We are satisfied as we have indicated in Grounds 1 and 2 that the jury were well aware of the real issue and that they would not have made any wrongful use of lies, if indeed they thought that any were told, by the applicant in her statement. The misdirection, conceded by the Crown, does not make the verdict either unsafe or unsatisfactory and we would therefore, on this ground, have no hesitation in applying the proviso.

20. Ground 4, we are satisfied, falls with Ground 3.

21. Ground 5 contends that the judge:

"gave no instruction or warning whatsoever as to how the jury should regard the evidence of what was said and/or done in relation to PW1, PW2, and PW5 by others in the applicant's absence."

We note that this evidence was led without objection from the defence. It was led in order to prove an on-going joint enterprise. What occurred at the Shangri-La Hotel, at the flat at Happy Valley, at the hut in the New Territories and finally at the Gala Association in Wanchai were, on the Crown case, all part of one transaction. It is true that conspiracy was not charged but all of these events were, the Crown argue, part of the res gesta of the offences that were charged. We are satisfied that the evidence was properly before the jury and that there is nothing in this objection.

22. Ground 6 submits that:

"one possible view of the evidence was that the applicant had only played a part of any significance in relation to PW5 (Madam Du), it was vital that the jury were instructed that it was a matter for them as to what the scope of the joint enterprise was and whether what happened to PW1, PW2 and PW5 was in the applicant's contemplation."

We reject the submission that a possible view of the evidence was that the applicant only played a part of significance in relation to Madam Du. On any view of the evidence this was clearly not so. Her dealing with and detention of Madam Du was clearly part and parcel of a joint enterprise which was to force Mr. Chan to pay the money alleged to be owed. The scope of the alleged joint enterprise was, as we have just indicated, perfectly plain. There is nothing, we are satisfied in this ground.

23. It is not necessary for us to canvass Ground 7 as we are satisfied that it is a repetition of Ground 6 with which we have just dealt.

24. In Ground 8 it is submitted that the judge:

"failed to give any direction to the jury as to how they might regard the evidence of the applicant's flight, given that it was an admitted fact that

'sometime after the 5th March 1992 Cheng Wai-king left Hong Kong. She was arrested in China on 4th October by officers of the Public Security Bureau and returned by them to Hong Kong on 23rd October 1992.' "

The judge told the jury to :

"consider the whole of the statement in deciding where the truth lies. You may feel that there is less weight to be attached to her explanation because they were not made under oath nor had they been repeated under oath."

What a jury make of evidence of flight is very much a matter of common sense. The applicant in this case did not say that she had fled because she was frightened she might be somehow wrongly involved in an incident in which she had played no part. What she said was that she fled: "for fear this incident would get me into trouble ....." She had already admitted involvement. The question the jury had to determine, taking into account the admissions which she had made in her statement and the evidence of the principal Crown witnesses, was the extent of that involvement. That was the real issue and that issue was squarely before the jury. We have no doubt that the jury applied their common sense when considering the statement and that no complaint can be properly made upon the basis that there was no specific direction as to the applicant's admission that she fled the jurisdiction.

25. We allow the application. We treat the hearing of the application as the hearing of the appeal. There having been a conceded misdirection as to lies we, being satisfied that the conviction was neither unsafe nor unsatisfactory, apply the proviso. The appeal against conviction is dismissed.

26. The applicant also appeals against sentence on the ground that it was manifestly excessive and wrong in principle. When sentencing the trial judge said:

"The degree of sophistication of this case can be seen in the profuse use of cellular telephones by the culprits and the deployment of the personnel in detaining and conveying the victims after they were overpowered. I note from the evidence that at least 5 vehicles were involved at the various stages."

He went on to say:

"I take into consideration that this is your first transgression of the law and, more importantly, you were not the mastermind in the planning and execution of these activities. And as an individual, you had not assaulted any of the victims. It also appears from the report that you had been an industrious and sociable person. I consider this to be the mitigating factors. I assess the appropriate sentence for each count to be a prison term of 5 years."

27. Mr. Macrae urges us to bear in mind that she has now thrown herself upon the mercy of the court and that her son is undergoing life threatening brain surgery. He again points out further that she was not the mastermind of the scheme and that whatever her role it was not to obtain any financial benefit for herself. Giving full weight to those considerations, they are not such as would allow us properly to interfere with the sentences imposed.

28. All too commonly in Hong Kong people endeavour to obtain repayment of alleged debts by the use of, or threat of use of, force. Such actions flout the rule of law. They constitute offences of considerable gravity. The courts must make it plain that such conduct will not be tolerated. The judge was, in our view, perfectly right to impose the sentences which he did.

29. The application for leave to appeal against sentence must also be refused.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Andrew Macrae instructed by Messrs. Raymond M.K. Wu & Co. for the Applicant.