HKSAR v. Lee Chi Fung Ray and Others

CACC 45/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 45 OF 2004

(ON APPEAL FROM DCCC NO. 675 of 2003)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA and Lunn J

Date of Hearing: 7 February 2006

Date of Judgment: 7 February 2006

Date of Reasons for Judgment: 22 February 2006

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REASONS  FOR  JUDGMENT

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 28 January 2004, the appellants (D1, D2 and D3 respectively) were convicted, following a trial in the District Court before Judge Sweeney, on joint charges of false imprisonment, contrary to Common Law, and blackmail, contrary to sections 23(1) and (3) of the Theft Ordinance, Cap. 210.  D1 was convicted on a further charge, which he faced alone, of common assault, contrary to Common Law and punishable under section 40 of the Offences Against the Person Ordinance, Cap. 212.  All of these offences were alleged to have been committed on 1 May 2003.  Each of the appellants received a total sentence of six years’ imprisonment.  They sought leave to appeal against conviction and sentence.  D1 and D3 were legally represented.  D2 was not represented as he had discharged the legal aid he was granted for the purposes of the application for leave to appeal against conviction.

2.A number of grounds of appeal were advanced.  However, in the event, we only needed to be concerned with one of these.  This related to the non-disclosure of the criminal record of a prosecution witness (PW3) in circumstances which the respondent conceded, at least so far as D1 was concerned, amounted to a material irregularity.  In our opinion, the irregularity at trial was material to all the appellants and, accordingly, the only issue for us to decide was whether the proviso in section 83(1) of the Criminal Procedure Ordinance, Cap. 221 could be applied.

3.At the conclusion of the hearing on 7 February 2006, we allowed all the applications in relation to conviction and granted leave to appeal.  Treating the hearing as the appeal, we quashed the convictions and we now give our reasons for so doing.  In addition, we ordered a retrial on all the charges, to take place in “about 2 months”.  We refused bail, having been informed that both the prosecution and the defence needed not less than 6 weeks before they would be in a state of readiness for the retrial.

The facts

4.The judge, in the course of giving his reasons for convicting, ended his Reasons for Verdict by saying:

“49. It is clear from the evidence that the victim of this case, Tung Kin-yip, was targeted as a son of a relatively affluent family, by a very sophisticated Hong Kong/Macau gang in order to get him over to Macau to sign an IOU.  This IOU was then used as the basis for extorting money out of his parents in Hong Kong after he himself had been falsely imprisoned in order to confirm his address, and had also been assaulted by one of the defendants.

50. The defendants did not testify, but I have considered their case as advanced in cross-examination, and I find that it raises no reasonable doubt in my mind on the evidence of the prosecution witnesses.” (Appeal bundle p. 25)

5.The “sophisticated” method used by the gang to get the alleged victim (PW1) to go to Macau had earlier been described by the judge in the following way:

“2. The charges arose in Hong Kong out of alleged attempts made by a Hong Kong gang to recover an alleged Macau gambling debt plus interest. An unusual feature of this case was the elaborate subterfuge used to attract the victim to Macau in the first place and then to lure him into signing an IOU that became the basis of a demand for $350,000 back in Hong Kong on the following day.

29 April 2003

3. On 29 April 2003 at about 1.10 pm, PW1 …, a 21-year-old student of business administration at a community college run by Hong Kong University (hereinafter referred to as ‘the victim’) was walking up an escalator inAdmiralty. Suddenly, two men came from behind and intercepted him. They were both wearing peaked caps and surgical masks (it being during the SARS outbreak). Only one of these men spoke to him. He claimed to be ‘Wong Sir’ and that they were both police officers. The victim was shown a card bearing a police logo.  He did not look at it closely but believed it was a genuine warrant card. He was asked many questions. His uncle, … , and the subject of bookmaking were mentioned. He was asked if he would work for these ‘police officers’, or else his family could be in trouble. Then they parted. Subsequently, ‘Wong Sir’ rang PW1 a few more times that afternoon, urging his co-operation. (See telephone records of the witness and of the number that ‘Wong Sir’ gave him - that is, 9272 2140 - P1 and P2.) The victim believed ‘Wong Sir’ because he appeared to know a great deal about him and his family. He even knew his residential address. He had told the victim he was from the ‘Police Intelligence Unit’ and at one stage took out a stack of photographs of the victim walking to and from his classes along Queensway Plaza. ‘Wong Sir’ asked him to co-operate with their unit or the victim could find himself in trouble with the police. He was ‘to think about his situation’ and to let ‘Wong Sir’ know if he would co-operate.” (Appeal bundle pp. 11-12)

6.PW1 agreed to “co-operate” and soon found himself on the ferry bound for Macau in what he believed was part of an undercover police operation to tail a ‘target’ suspect.  He went to various locations in and around the Lisboa Casino under the direction of someone calling himself “Ah Sang” who he met for the first time in Macau.  Ah Sang explained to PW1 that he would deliberately have to lose in soccer betting before arrests would be made.  A number of activities then took place which in due course led to PW1 having to sign an IOU in the sum of $180,000.  Ah Sang pretended to be in the same position as PW1 and signed an IOU in the same amount.  Eventually, PW1 went with two men, including Ah Sang, back to Hong Kong to repay the “debt” he had incurred while gambling in Macau.

7.On 1 May 2003, when PW1 arrived in Hong Kong, he was put into the hands of a group of four men who were waiting to collect him at the ferry terminal.  This was after Ah Sang had pointed PW1 out to them.  It was not denied at trial that the group of four included the appellants.  The other person was described as the “chubby man”.  They proceeded to take the victim’s belongings, including his wallet and mobile telephone, and generally they bullied him.

8.The judge described what allegedly followed in these terms:

“… The taxi took him and the three defendants and the ‘chubby man’ to a restaurant in Woosung Street in Jordan, where he was put sitting on the inside seat of a booth at the rear of the empty restaurant. There, they bullied him and demanded of him his personal particulars. He was told that they ‘could not guarantee his fate’ if he did not co-operate. Whenever he tried to leave, one of them blocked his way. Meals were ordered and eaten by all five of them, including the victim. The four men with him in the restaurant included these three defendants.

12. Then the victim was tapped on his shoulder and taken outside to a taxi by those four men in the restaurant. After he had been threatened to tell the taxi driver his address, the taxi took all five of them to his home …   There, one of the gang members remained downstairs as a lookout, and the three defendants came up with the victim to his family’s flat on the 3rd floor. … (they) pushed their way inside and told (the victim) ‘not to play games’. His father sent him to his bedroom.

13. In the presence of his father the victim was assaulted by the 1st defendant after he had come out of his bedroom and asked the men to return his mobile phone to him. D1 pushed him against the wall by grasping at his neck with his hand and forcing him backwards and saying, ‘Boy, are you playing games?’ However, the victim’s father intervened and pulled D1 away from his son. His father managed to calm the situation down. He ordered the victim back to his bedroom and asked the three defendants to remove their shoes. The defendants told the father that his son had lost $180,000 gambling in Macau. A number of phone calls were made.

14. The father spoke to a male surnamed Chiang over the telephone. He was told by Chiang that they had ‘tendered’ for his son’s debt; that ‘We have not charged you double. We have given you face by only charging you $350,000’. The 3rd defendant confirmed this demand, as did the 1st defendant. At one stage, D3 had said, ‘We must make some money out of it. That’s the practice of loan sharks’, and both defendants said that the sum of $350,000 had to be paid. At this stage, the 2nd defendant was lying back on a sofa in the living-room, smoking a cigarette. The father described how D2 had not removed his shoes. The father went on to say that either D1 or D3 (he was not sure which of them) had produced an IOU signed by his son for $180,000 (P8 is a copy of same). The father negotiated for a number of hours to try and reduce the amount of this debt. Eventually, with the help of his younger brother, who arrived later (that is, P3) he negotiated the sum down to $260,000.

15. PW2, who was very scared for his family, then handed over $40,000 in cash from staff salaries.  He then obtained a copy of this new IOU (Exhibit P16) written out and witnessed by (D3).  At one stage during the negotiations, D1 had said, ‘You hurry up and make the payment or we’ll call more people to come over’.  

16. An entry was made on this IOU to record that ‘On1 May 03 have received $40,000.’ Then all four men left at about 4 pm, having spent approximately five hours at the … home. Only after they had left did PW2 discover from talking to his son that the boy had not in fact borrowed money from loan sharks to gamble in Macau, but instead had been the victim of an elaborate ruse to get him there to make it seem like he had borrowed $180,000.

17. Later that night, at about 22.20 hours on 1 May, PW3, … , the father’s younger brother [PW3], at his request handed over a further $30,000 cash in Nathan Road to D1 and obtained a small receipt (Exhibit P13, signed by D1).

18. Several days later, PW2 paid D1 a further $30,000 at the downstairs part of his home.  This left $160,000 ‘due’ according to the IOU (P16).

19. Thereafter, various things happened at PW2’s home. He had not paid the balance according to the schedule on the IOU. The mains water supply to their home and downstairs restaurant was switched off from the outside on three occasions. On a number of occasions, the outside gate was banged loudly at night-time. On two occasions, the outside gate lock was stuck with glue.

20. Eventually, the family could take it no more and went to the police on the afternoon of 5 May to file a full complaint. However, such incidents of harassment continued right up to the day of the arrest of these three defendants on 23 May.  The ... family felt so scared for their own safety that they abandoned their home for15 days from 10 May.” (Appeal bundle pp. 16-18)

9.The appellants were arrested on 23 May 2003 after the police laid a trap for them after arranging for PW2, the victim’s father, to meet with them at a café in the Shun Tak Centre.

10.In his brief interview with the police, D1 stated that a “Mr Chiang” had contacted him in early May to go to the Macau ferry to collect Tung Kin-yip (PW1), who he referred to by name, saying that PW1 owed money to Mr Chiang.

Defence case

11.None of the appellants gave evidence.  However, their cases were presented on the basis that they were debt collectors.  It was suggested to PW1 that he had been lying about being tricked into gambling in Macau, one of the reasons being that he was trying to keep his parents from knowing that he had lost borrowed money while gambling.  It was suggested that the appellants were working for a Mr Chiang who had bought PW1’s debt and that the purpose behind their attendance at PW1’s family home was to conduct an amicable discussion with PW1 and his father (PW2) which was all that occurred.  It was also contended that the demand for $350,000, the sum identified in the 2^nd charge of blackmail, was not in conflict with PW1 having signed an IOU for $180,000 because an “acquaintance” of the victim had also signed an IOU in the same amount.  It was said, therefore, that the total amount owing was $360,000 and that PW1 had made up a story about how he had come to be in debt to avoid paying the sum he owed.

Non-disclosure of the criminal convictions of a prosecution witness (PW3)

12.The only ground of appeal on which we have had to concentrate is that there was a material irregularity at trial in that the criminal convictions of PW1’s uncle, Tung Wai-cheong (PW3), were not disclosed to counsel acting for D1 and D2.

13.On the prosecution’s version, PW3 played a very small part only coming into the picture, as the judge had indicated, towards the end of the events on 1 May 2003.  However, on the case presented by the defence, it was suggested by counsel then representing D1 and D2 that PW3 had been present throughout the time the appellants were at PW1’s family home.  Mr Marray, who did not appear in the court below, submitted that PW3 was potentially, in this respect, a far more material witness than he had been prepared to let on, having witnessed almost all the events which gave support for the 3 charges which the defence had in turn claimed were based on a fabricated account.  However, there was a further element to this contention.  Counsel at trial had alleged that PW1’s family were, by reputation, a powerful family who the appellants would not have dared to cross, the implication being that they had triad links.

14.We were taken by Mr Marray to a number of counsel’s suggestions to PW1 to the effect that the “Tung family”, of which PW1 was a member, were known to D1 and D3 (transcript pages 168 and 176) and that the only people who acted in a “fierce” way (transcript page 170) were members of the Tung family, including PW3.  It was put to PW2 that the reality was that he “made use of both triad and police with a view to get away or be alleviated from the financial burden of repaying” (transcript page 286).  When PW3 testified, it was put to him that “the only people who were fierce” were himself, PW2 (his brother), and a strongly built man with tattoos who had accompanied them (transcript page 308); that he had been there from the beginning of the meeting “because [he was] waiting for that to come” (transcript page 310); that because PW3’s family “were all very powerful people” no one “dared to do anything impolite” to them (transcript page 312); and that PW3’s group, “in order to make no further payments, decided to make use of the triads and the police as tools” (transcript page 313).

15.None of these suggestions were backed by any evidence and not one of them was accepted by the witnesses.  It is not, therefore, surprising that the judge paid scant attention to them in what amounted to a wholly favourable assessment by him of the credibility of the three prosecution witnesses.

16.The judge was unaware, however, that PW3 had a bad criminal record and, if he had realised this, the question of particular relevance posed in these proceedings was whether this might conceivably have made any difference to the approach taken by the judge to his assessment of the prosecution’s witnesses.

17.PW3’s record included a conviction in 1989 for manslaughter for which he received a 3-year sentence.  In brief, it seems that he was part of a large group of men who attacked and killed the deceased.  There were also convictions for burglary (1983), unlicensed gambling (1996), unlawful assembly (1999) and dealing with goods to which the Dutiable Commodities Ordinance, Cap. 109 applied (2001).

18.Mr Shiu, on the respondent’s behalf, in a long and helpful written submission, responsibly accepted that there had been at least a partial failure on the part of the prosecution to make disclosure to the defence of PW3’s criminal record.  This occurred in rather unusual circumstances and it is apparent from what happened that no question of bad faith on the part of the prosecution arises.

19.In brief, D3’s solicitors made enquiries to find out whether any of the prosecution’s witnesses had criminal convictions and they were notified by the Department of Justice, by a letter dated 24 December 2003, of PW3’s record.  At that stage, the solicitors representing D3 also represented D2 but, within a few days of the letter being sent by those acting for the prosecution, D2 withdrew his instructions and, with D1, instructed a firm of solicitors who had not previously been involved in the case.

20.It is accepted that D1 and D2’s new solicitors were never made aware of the disclosure of PW3’s criminal record.

21.Unfortunately, prosecuting counsel, under the mistaken belief from the correspondence that disclosure had been made in full, failed to check with counsel acting for D1 and D2 whether he knew about PW3’s record.  If he had done so, he would have discovered that counsel for D1 and D2 was unaware of it.  As the trial defence counsel stated in his affirmation, he would undoubtedly have utilised the record in support of the serious allegations he was making against the Tung family of which PW3 was a member.  Furthermore, it seems to us that he would have needed to seek separate representation for D2 who, in view of his record, would possibly not have desired to avail himself of this line of cross-examination.

22.In D3’s case, again there were strong tactical reasons for D3’s counsel not utilising the information he had been given yet, rather strangely, it appears that he never spoke about this with counsel representing D1 and D2.

23.In short, therefore, there had been no disclosure of PW3’s criminal record to D1.  On the other hand, D2’s former solicitors had been notified about this and D2 should, therefore, have become aware of it.  Apparently, D2 was never told about it.  D3’s counsel, who was told about it, at no stage divulged it to counsel acting for both D1 and D2 and was in no position to use the information himself at trial as to have done so would have put D3’s character in issue.  It seems likely, therefore, that the decision not to introduce PW3’s record in cross-examination would have been made at a stage when it had not yet been decided whether D3 should testify on his own behalf.

24.We found ourselves unable to accept Mr Shiu’s submission that, albeit a material irregularity in D1’s case, we should apply the proviso because, as PW3 had only played a “small part” in the events, his record could not conceivably have had a bearing on the outcome of the trial.  However, as he eventually accepted, this was a view which excluded any consideration of the way the defence had put their case.  It was the defence case, (see: paragraphs 13 and 14 above) that PW3 had been present throughout most, if not all, of the meeting on 1 May 2003 at PW1’s home, and that the Tung family had ‘tough’ connections.  PW3 was a member of that family and his background was, therefore, relevant.

25.In all the circumstances, we concluded that the inadvertent failure to disclose PW3’s record to the solicitors and counsel acting for D1 and D2 at trial may have had a bearing not only on the presentation of the defence case as a whole and but also the judge’s assessment of the case in the light of the evidence given.  We consider that this must also include the judge’s assessment of D3’s position because, although his counsel could not cross-examine PW3 about his criminal convictions, D3 might have benefited from their use if D1 and D2’s counsel had known of their existence and cross-examined upon them.  In short we are not able to conclude that the result would inevitably have been the same.

26.For this reason we did not think it appropriate to apply the proviso and, having allowed their appeals, we ordered a retrial for each of the appellants.  The retrial will be upon a fresh charge sheet in the District Court.  Meanwhile, they are all remanded in custody.

Mr Gavin Shiu, SADPP, of the Department of Justice, for the Respondent.

Mr John Marray, instructed by Messrs Cheung & Yip, assigned by Director of Legal Aid, for the D1 and D3 / 1^st and 3^rd Appellants.

D2 / 2^nd Appellant, in person.