HKSAR v. Lau Ka Cheong and Others

CACC000541/1998

CACC541/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 541 OF 1998

(ON APPEAL FROM DCCC 600 OF 1998)

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Coram: Hon. Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 3 March 1999

Date of Judgment: 3 March 1999

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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. There were, originally, nine defendants in this matter and they faced five charges. The applicants before us today were D1, D2 and D8 at trial. The 1st applicant (D1) faced one charge of false imprisonment, contrary to Common Law, it being alleged that he, on 20th October 1997, at the Hong Kong Macau Ferry Terminal, Sheung Wan, unlawfully and injuriously imprisoned Leung Chun-kei and detained him against his will.

2. The 2nd applicant (D2), along with the 3rd applicant (D8) and others, faced a charge of false imprisonment, it being alleged that the applicants and the others, on 20th October at room 144, San Diego Hotel, Woosung Street, Kowloon, unlawfully and injuriously imprisoned Leung and detained him against his will. The 2nd and the 3rd applicants also faced a charge of blackmail, (the third charge) along with others. It alleged that they and the others, at the place mentioned in the second charge, with a view to gain for themselves, made an unwarranted demand of $96,000 from Leung Kit-fong, who was the sister of the victim in the first two charges, with menaces. We do not need to detail the other charges as they are not matters that concern us in these appeals. The 1st applicant was convicted of charge 1 and sentenced to imprisonment for nine months. The 2nd and 3rd applicants were convicted of charges 2 and 3 and sentenced to two years concurrent on each charge.

3. This prosecution involved a not unusual series of offences culminating in a blackmail attempt which was perpetrated by a criminal gang preying upon a gambler returning from Macau. The evidence in offences of this kind is not infrequently characterized by confused and contradictory testimony. This is not surprising as the victims have been placed in fear and the events have taken place in an atmosphere redolent of menace. The duty of a hearing court in such circumstances is not an easy one. Naturally the confused evidence is suggested by the defence to be indicative of untruthfulness. The real explanation may well, however, be the fear and uncertainty that has been engendered in the victims by the menaces to which they have been subjected.

4. We bear in mind when considering the evidence in this matter that the victim was, as the judge found, a na?ve young man with a vulnerable disposition.

5. Having heard the evidence which detailed a series of events beginning in a gambling casino in Macau and ending in the room in the San Diego Hotel, Deputy Judge Jenkis made the following finding:

"So far as charge 1 is concerned, I am satisfied from the evidence as outlined that PW1 had been duped in Macau on the pretext of a fictitious job offer into shouldering the $20,000 gambling debt incurred by Ko Lo and that out of a mixture of fear and confusion he had been prevailed upon to return to Hong Kong with D1. I am satisfied at all material times that PW1 was in the company of D1 he had control of PWl's movements against his will. This is demonstrated by D1 buying tickets for himself and PW1 to return to Hong Kong, D1 sitting next to PW1 on the journey and Dl's handing over of PW1 to D2 and D8 at the taxi stand in Hong Kong. The use of the words 'handing over' by PW1 to describe Dl's conduct towards him at the taxi stand is I find particularly significant, emphasising as it does Dl's control over PWl's movements and PWl's unwillingness to be so controlled. D1 I find had no lawful excuse for controlling PWl's movements in this way and he is guilty of the 1st charge."

The judge went on:

"Similar considerations apply to D2's and D8's conduct towards PW1 thereafter. I am satisfied from the evidence that the only reason that PW1 was taken by D2 and D8 to Room 144 of the San Diego Hotel was so that unwarranted financial demands could be made of his family, and that while these demands were being met, it was both the intention of those defendants who took PW1 to Room 144 initially (D2 and D8) and those defendants who joined D2 and D8 thereafter to keep him in Room 144 against his will. The fact that PW1 cried after the first call to his family members shows that he did not wish to be in Room 144 at all. I am satisfied that the only reason for the subsequent appearance of D3, D4 and D5 in Room 144 on 21st October 1997 was to assist D2 and D8 in detaining PW1 against his will. This is shown by their words and conduct whilst in Room 144 and in D4's case additionally, his extending the rental of Room 144. PWl's detention finally culminated in his physical restraint with P1 and Pl(a) by D2, D4 and D8 before they left Room 144.

In acting as they did, D2, D3, D4, D5 and D8 had no lawful excuse and they are all found guilty of the 2nd charge.

So far as the 3rd charge is concerned, I am satisfied from PW2's evidence that she was blackmailed by the caller on the first occasion she spoke to PW1 on the phone. Whilst it is not clear from PWl's evidence as to who spoke to PW2 other than himself, I am satisfied that the call must have emanated from Room 144 as PW1 was there at the time. I am satisfied that prior to the call D2 and D8 had asked PW1 to call home for money and D2 had in fact dialled the number. I am also satisfied that D2 and D8 were present at the time the call was made and they were therefore party to the blackmail. D2 and D8 are guilty of the 3rd charge."

6. It is not necessary for us to read the other findings.

7. The grounds of appeal taken collectively are, broadly stated, a submission that the judge simply failed to heed the evidence, particularly that of PW1, and that this evidence was so unsatisfactory that no court are properly considering it could have come to a conclusion of guilt.

8. Ms. Panesar, who appears for the three applicants today, has argued a number of grounds of appeal. We will deal first with Ground 1 and Ground 2(a).

9. Ground 1 submits that the judge "failed to satisfactorily evaluate the testimony of PW1 and PW2 in the context of all the salient circumstances of this case." Ground 2(a) submits that the judge "ignored and/or failed to consider and resolve the numerous irreconcilable discrepancies and inconsistencies in the oral testimony of PW1 and PW2 and between the oral testimony of PW1 and his witness statements made to the police."

10. There is here a suggestion that the judge failed to comprehend the significance of the discrepancies that were plainly extant in the evidence which he had heard. We cannot accede to the submission. When the judge's Reasons are read, it is, we are satisfied, perfectly clear that he was fully aware of these discrepancies and, indeed, of all of the unsatisfactory features of the evidence; that he considered them; that he had, in the outcome, had no doubt that he could accept the essential features of the evidence of PW1 and of PW2; and that this evidence established that demands were made and that PW2 was the victim of those demands.

11. We turn then to Ground 2(b) in which it is submitted that the judge "failed to consider the reason for and the effect and impact of PW1's forgetfulness on his evidence and whether it was the reason for varying versions of events being given by PW1." We find it very difficult to come to grips with a submission of this nature. It appears to be a criticism of the judge suggesting that he had completely forgotten what his judicial duty was and that he, despite the fact that he had sat listening to all of the evidence, and, in particular, to three days of cross-examination by counsel of PW1, had then set at naught all he had heard and had simply failed to make a proper evaluation. We do not accept for one instant that that occurred. The trial judge demonstrated in his findings that he was perfectly well aware of the allegation that PW1 was either lying or was manifestly unreliable. He clearly examined the evidence against the background of that allegation and came to his conclusions bearing all of those matters in mind. We do not find anything of merit in this ground.

12. We turn to the third matter for our determination which is contained in Ground 2(c) which criticises a finding by the judge suggesting that it contains "a material irregularity" and indicates a failure properly to consider the evidence and a misdirection in relation to the evidence. The passage complained of is as follows:

"In other instances when dealing with omissions from his first statement he (PW1) said that he told the statement-taker (PW6, the interviewing police officer) these omitted details but PW6 had failed to record them down which was contradicted by PW6. I accept PW6's evidence in this regard and place no reliance on PW1's testimony regarding those omitted details but bearing in mind that these details formed a very small part PW1's testimony, I do not find PW1's general credibility adversely affected."

13. It is suggested that this finding was, to use the words of the ground, "fundamentally flawed" and that judge, when making it, wrongly and unfairly evaluated the evidence in the case. We reject the suggestions without hesitation. It is plain to us that the judge made a careful assessment of the evidence and that the finding to which he came in this regard was one to which he was entitled to come. It did not involve either a material irregularity or a misdirection as to the way in which evidence should be approached.

14. We turn then to the fourth matter which is contained in Ground 3(a) and 3(c).

15. Ground 3(a) submits that the judge "failed to resolve the discrepancies between the evidence of PW1 and PW6 in that PW1 (the victim) admitted he was a drug dependant on the material dates and that he was suffering from drug withdrawal symptoms. However, PW6 denied that the victim was suffering from the said symptoms. ......... the judge failed properly to evaluate the evidence of PW1 and to consider whether PW1 had lied about dangerous drug consumption inside room 144 of San Diego Hotel and about the said withdrawal symptoms."

16. Ground 3(c) submits that as regards the contradictory evidence to which we have just referred, the judge "failed to reconcile the discrepancy and erred in finding that PW1's ability to recall the events in question was not adversely affected by the withdrawal symptoms." Again, we do not agree. Again we are being asked to descend into the arena of the trial and to interfere with findings of credibility which were made by the judge, which it was his peculiar province to make. It was for him to make a decision as to the evidence which he accepted. In this regard, he rejected a suggestion that he resolves a discrepancy in a way which would have indicated that the evidence of PW1 was false.

17. We turn then to the fifth matter which is contained in Ground 3(b). This alleges that the judge "erroneously misdirected himself in that inside Room 144 of San Diego Hotel, PW1 did not smoke dangerous drugs" and wrongly held that defence suggestions that photographs of the room indicated otherwise were speculative". We, again, can see nothing untoward in what the judge said. There was speculation in the defence suggestions and it was speculation to which he was not prepared to give credence. The judge was entitled to take the approach which he did and he cannot be criticized for so doing.

18. The sixth matter is set out in Ground 3(d), where it was suggested that the judge "failed to consider and evaluate all the numerous omissions, discrepancies and inconsistencies in the evidence of PW1 which were attributable to either the consumption of dangerous drugs or to the drug withdrawal symptoms and whether his perception of events was distorted by reason thereof." We have had placed before us and have considered a very long list of discrepancies that had occurred in the evidence of PW1. We have no doubt that the judge was perfectly well aware of them and, indeed, Ms. Panesar has told us that counsel made reference to them in their final addresses. As this court has said on many occasions, a judge is not required to mention every discrepancy that occurs in the evidence. What he is required is to demonstrate is that he has heeded the evidence, heeded the argument of counsel and, having done so, has then come to his conclusions. Again, we have no hesitation in saying that we are satisfied that the judge did all of those things when reaching his conclusion in the present case.

19. The last matter of significance to which we turn is contained in Ground 4, where it is submitted that the judge "failed to consider fully the defence of all of the applicants." In this case, none of the applicants gave evidence. Their defence, such as it was, was put before the court by way of suggestion from counsel. This defence clearly fell away, the judge having been prepared to accept as truthful the evidence of PW1 and PW2. There is no merit in the suggestion that there was a failure by the judge fully to consider the defence of the applicants.

20. There has been no merit in any of the grounds in this appeal and the applications are therefore refused.

Representation:

Mr. Cheung Wai-sun, D.P.G.C. (D.P.P.) for the Respondent

Mr. Mahinder Panesar assigned by D.L.A. for the Applicant.