Ma Chung-ching and Others v. The Queen

CACC000542/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 542 OF 1975

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Coram: Full Court (Huggins & McMullin, JJ.)

Date of Judgment: 28 October 1975

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JUDGMENT

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McMullin J.:

1. The appellant, LAU Siu-kwan, was one of five men who were charged together upon three charges arising out of an incident at the Sun Po Beauty Parlour on the 6th of April 1975.

2. The case for the Crown was that they had together invaded that premises bound and gagged a number of the employees and customers therein and removed from them a quantity of money and valuables. One of the employees managed to escape by a rope and alerted the police who came while the robbers were still upon the premises. When the police party came near the door of the premises two of the robbers pushed four of the victims against the main glass door and threatened to stab them if the police forced an entry. Senior police officers were called for and the street area was cordoned off. After some parleying between the senior police officer and the robbers the latter surrendered and were arrested. They were all subsequently charged with robbery contrary to Section 10 of the Theft Ordinance; false imprisonment contrary to Common Law; and forcible detention of persons with intent, contrary to Section 42 of the Offences against the Person Ordinance.

3. Four of the accused pleaded guilty to the robbery charge but not guilty to the other charges. The fifth accused, LAU Siu-kwan, with whose case we are presently concerned, pleaded not guilty to all the charges. The Crown offered no evidence against the first four defendants on the second and third charges and they were acquitted upon those charges but the present appellant was, after trial, convicted upon all three charges.

4. Two of the defendants appealed against sentence only. They were unrepresented at the hearing and after considering the grounds advanced by them the court dismissed their applications for leave to appeal. Mr. Bunting appeared for the third appellant the fifth defendant, LAU Siu-kwan who had originally appealed against both conviction and sentence - and he informed us that he had advised the third appellant to withdraw the appeal against sentence and that the appeal against conviction on the first and second charges was also abandoned but as to the third charge he raised a point of some interest and difficulty which necessitated the court taking further consideration.

5. Section 42 of the Offences against the Person Ordinance is in the following terms:

"Any person who, by force or fraud, takes away or detains against his or her will any man or boy, woman or female child, with intent to sell him or her, or to procure a ransom or benefit for his or her liberation, shall be guilty of felony, and shall be liable to imprisonment for fourteen years."

He points out that although that section is ostensibly modelled upon Section 56 of the Offences against the Person Act 1861 the latter provision deals exclusively with child stealing. Authorities based upon it are therefore not of assistance to the court in the present case. The point he makes is that, in the present case, although the victims, who had already been bound and gagged before the police arrived, were used as hostages to prevent the entry of the police and were undoubtedly detained against their will during the 15 minutes which elapsed after the arrival of the police and before the surrender of the robbers, there was nothing in the evidence to show that at any point during that period the purpose of the detention of the prisoners was to procure a benefit "for their liberation". He does not deny that they did get a "benefit" by reason of the detention of the prisoners in that they kept the police out of the premises for a short period during which they not only parleyed with the police but took the opportunity of devising a plan for saving one of their number (the fifth defendant and present appellant) by tying him up as though he was one of the customers and warning one of the employees to tell the police that the appellant had indeed been a customer. That however is as far as the evidence goes. There was nothing to show that in addition to that any promise had been made to the police to liberate the prisoners or any of them in return for any benefit for the robbers or any of them. Mr. Soh for the Crown suggests that since the stalemate could not have continued indefinitely, and since the prisoners were clearly being used as hostages while the robbers treated with the police, it must be implicit in the situation, although there was no express evidence upon the matter, that the negotiations with the police must have included safe conduct for the robbers out of the premises and freedom from arrest in return for the liberation of the robbery victims. He pointed out that there was an escape route open to the robbers, viz. : the very same rope down which one of the employees had escaped at the outset, and he sought to argue that since the robbers could have used that method of escape but did not do so they must have refrained from using it out of fear of being captured and therefore in turning to deal with the police rather than trying to escape by that means their bargaining must have included some such guarantee as has been referred to above. With respect we think this is to read too much into the evidence. The prisoners were clearly used as a means of deferring arrest but without positive evidence in that regard we do not think that anything more can simply be assumed. What happened undoubtedly amounted to false imprisonment, but that was covered by the second charge.

6. Section 42 would seem to be aimed primarily against such things as kidnapping and holding to ransom but there does not seem to be any reason why it should not be used to cover any case in which the liberty of some person who has been detained is expressly or by necessary implication employed as a bargaining counter to secure a benefit of any kind. But there must be evidence to show that liberation is offered in return for some such benefit. In the present case there was no offer to set the prisoners at liberty nor was any apparent benefit achieved by the robbers as a result of admitting the police and submitting to arrest. Even if the admission of the police to the premises in effect secured the liberation of the captives there is nothing whatsoever to show that that was done with the intent that any benefit should follow and it is plain from the evidence that no benefit did follow. Such temporary benefit as was achieved was undoubtedly the result of the detention and not of the liberation of the prisoners. For these reasons we think the conviction upon the third charge was bad and must be set aside. The result however is not of much practical benefit to the appellant since he received concurrent sentences upon all three counts and the total of 2½ years upon the first and second charges will remain.

Representation: