R. v. Wu Tsun Ko and Another

CACC000542/1992

IN THE COURT OF APPEAL

1992, No. 542
(Criminal)

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Coram: Hon Yang CJ, Silke VP, and Sears J

Date of hearing: 12 November 1993

Date of judgment: 30 November 1993

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J U D G M E N T

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Hon Yang, CJ:

1. In this application, the two applicants ("A1" and "A2" respectively) seek leave to appeal against their conviction after trial of two counts of false imprisonment.

2. Sometime at about 9:30 a.m. on 2 May 1991, there was a meeting at the Jade Garden Restaurant. Eight men attended. They were A1 and A2, Francis Li, LEUNG Sing-chiu ("PW5"), TING King-man ("PW6"), and three other men generally described as the debt collectors ( - their nicknames were, respectively, Ah Chiu, Ah Yan, and Ah Wai). There was discussion of the collection of a debt from the proprietor of a bullion company. A1 and A2 were described as the creditors who were employees of the company. It was said at the meeting that the money owing included salaries, investments and deposits of clients, and that the two creditors, i.e., A1 and A2, were asking Ah Chiu (one of the debt collectors) to assist. Either A1 or A2 also said they would only require sixty percent of the money recovered, and the other forty percent would go to Ah Chiu as a reward. Francis Li then asked A1 to take the debt collectors to the home of the bullion company's proprietor, at Caroline Heights, Flat 23B, No. 1A, Link Road, Happy Valley, which was only minutes' walk away.

3. The rest of the party then adjourned to the Sunning Restaurant nearby to wait for news. The two groups, namely, the one which went up to the home of the proprietor of the bullion company and the group which waited at the Sunning Restaurant, maintained communication by means of their portable telephones.

4. It is necessary at this point of the narrative to say a few words about the bullion company and its proprietor. The company was called the Westwise Development Company Ltd and it had collapsed in December 1990. The proprietor was LIU Wai-fan, who was not in Hong Kong at the time of the incidents. His business had been one of trading and investment in gold bullion and foreign currencies. The victim of the alleged false imprisonment under the First Count is the proprietor's son. He is generally known as Jason, but his full name is LIU Tze-chung, a young man of about 21 years of age at the time. The victim of the alleged false imprisonment in the Second Count is Madam CHU Pik-chun, the wife of the elder Liu and mother of Jason. The reason for the bullion company's collapse is not clear. The prosecution suggested that the collapse was due to high operating costs; the defence suggested fraud on the part of the proprietor who absconded to China with his customers' money. There was no evidence to support either version and the judge directed the jury not to place any weight on either version, but to ignore it altogether because the reason for the company's collapse "was not relevant insofar as the charges of false imprisonment" were concerned. This direction forms the subject matter of A1's Ground 4 of his appeal and A2's Ground 7 of the appeal. We shall return to this at a later stage.

5. Before considering what happened at the proprietor's home, when A1 and the three debt collectors visited it, it will be convenient here to look briefly at the group waiting at the Sunning Restaurant. Some ten minutes or so after A1 and the three debt collectors departed from the Jade Garden Restaurant for the Caroline Heights apartment, A2 borrowed PW5's telephone for use and left. About ten to 15 minutes later, A1 and A2 came to Sunning Restaurant together, and the party broke up at about 3 p.m.

6. We may now examine what took place at the Caroline Heights apartment. The evidence on this aspect of the case came largely from Jason and his mother.

7. At about 11 a.m. on the morning in question, Jason was the only one at home. He heard the door bell and opened the front doors. He found A1, whom he knew as a former employee of his father's company. Then three men, the three debt collectors, who had been hiding under the staircase, rushed inside, followed by A1, and they asked the whereabouts of his father. One of the debt collectors drew the curtains and Jason was forced down onto the sofa. Then he was dragged into his bedroom, where the curtains were again drawn. A1 also entered the bedroom with the three debt collectors. Jason was pinned down and made to sit on the bed. Except for A1, the other three men were "very fierce looking". A1 said he could not help Jason and, after some conversation, A1 and another man left the bedroom. The other two men remained and locked the bedroom door. They assaulted Jason, causing him to cry out loudly so that "all people in the flat should be able to hear that". Jason was then dragged out of the bedroom and he saw A1 and the other man in the corridor outside the bedroom. Jason caught hold of A1's hand and asked him to tell the others not to hit him any more. In reply, A1 said something to the effect that he could not help him. Then the two men who had assaulted him dragged him back into his bedroom. A little later, Jason was taken out to the sitting room again. They "pinned" him down, slapped him and used foul language. Then his mother returned.

8. According to Jason's evidence, his mother, on seeing the bruises on him, became very frightened and she cried. Jason said in evidence that when her mother came in, "she saw me and also she saw the three fierce looking men, so she was frightened". She also saw redness and abrasions on his arms and hands. She asked why those people hit her son. Then two of the debt collectors, Ah Wai and Ah Yan, "pulled" Jason and his mother back into Jason's bedroom.

9. Jason's evidence continued on what was said by the two debt collectors in the bedroom. They were in the room for about five minutes. He told the court that he and his mother were told to pretend they were being assaulted and were instructed to cry out as if in pain, which they did. After that, Ah Wai opened the bedroom door, when Jason and his mother were "half-lying on the bed". A1 and A2 were already at the door of the bedroom and A2 spoke in the direction of the room: "I see nothing and I know nothing". And A1 and A2 left.

10. It was not disputed that A2 arrived at the apartment with a bundle of documents, because at an earlier visit by A1 Jason had said the sums of money claimed by the visitors were incorrect. A2 was therefore summoned to produce proof of the sums owed. A2 was in the apartment for only five to ten minutes.

11. The judge referred to A1's evidence in his summing up :-

" He later returned to the flat because the 2nd defendant wanted to show the computer print-outs of the customers' daily sheets to Jason and Madam CHU and the 2nd defendant did not know the exact location of the address. He told you there were other reasons he wanted to go back. He wanted to see how bad the situation had developed."

12. On the evidence referred to, it would be open to the jury to find that A1 knew Jason and his mother were unlawfully and injuriously imprisoned and detained against their will. A1's role is clear. He was in the apartment on both occasions and must have seen and heard what was happening.

13. A2 must have seen the injuries on Jason as his mother had, and he must have heard the mother asking why the men had hit her son. There was evidence that there were men there who looked fierce. After Jason and his mother were "pulled" into the bedroom, A2 remained and waited until those inside the bedroom came out. Then he uttered the words "I see nothing and I know nothing".

14. Before coming to the Grounds of Appeal, it may be convenient to mention here that, whilst A2 did not give evidence, A1 did. Both, however, had given statements under caution. The judge, in his summing up, quite correctly informed the jury that the only issue was whether A1 and A2 were parties to, or responsible for, the false imprisonment of Jason and his mother.

15. A1 advances six Grounds of Appeal, all of which are also relied on by A2 who advances four additional Grounds.

16. First, it is A2's argument that there is no, or no sufficient, evidence to establish a prima facie case against him. Whilst there is nothing to show that, prior to his visit to the Caroline Heights apartment, A2 was in any way a party to the false imprisonment of Jason and his mother, certainly when he did arrive, he could not, on the evidence, have failed to notice that the two victims were being held against their will. By his physical presence in the apartment and his words and the reasons for them, there was, in our view, a prima facie case against A2 on both counts on the basis of his acceptance and adoption of what was going on.

17. The second complaint, jointly argued on behalf of both A1 and A2, is the judge's ruling that hearsay evidence was admissible if the words were uttered when the applicant concerned was physically inside the apartment but not otherwise. It is further said that, as a result of this ruling, prejudicial evidence was admitted and evidence which would have been favourable to the defence which tended to show that the debt collectors were lying to Jason and his mother were excluded. Further, the judge erred in referring to some of the hearsay evidence in his summing up.

18. If we understood counsel correctly, the complaint here is directed at what two of the three debt collectors said to Jason and his mother in the bedroom, i.e., they told the two victims to pretend that they were beaten up and to shout "save life" and to yell out in pain, which the victims did for about five minutes. When they were "pulled" into the bedroom, according to the evidence of Jason in chief, A1 and A2 were "almost at the door" outside the bedroom, and when the bedroom was later opened A1 and A2 were already at the door. Under cross-examination, however, he agreed that when he and his mother were out in the sitting room, A1 and A2 were not there. The contradiction in evidence as perceived by counsel, may on analysis be more apparent than real, for Jason was referring to different periods of time. The other piece of hearsay which counsel took exception to was said by one of the debt collectors, Ah Wai, to the victims inside the bedroom, that if Jason did not give the money, they would take him away. Then it was argued that hearsay evidence favourable to the defence was excluded: the evidence, if admitted, would show that one of the debt collectors told the victims to tell A1 and A2 that they had no money. Those words were said to be favourable to the defence.

19. The mother, however, said nothing about a pretended assault.

20. Prosecuting counsel in her closing speech conceded that the evidence about the pretended assault should be disregarded by the jury. That matter was therefore no longer a live issue.

21. In our view, the learned judge's ruling that what was uttered inside the apartment was admissible seems to imply that what was said outside the apartment was not. If the ruling was made on a geographical basis, then an element of unnecessary artificiality had been allowed to creep in. In the event, however, no harm was done. The question of the pretended assault was no longer an issue before the jury and they were told specifically by prosecuting counsel to forget about this. This was sufficient in all the circumstances of the case: it was not necessary for the judge to allude to it in his summing up.

22. The complaint that otherwise favourable evidence was withheld from the jury has, in our view, no merits either.

23. Thirdly, it is argued that the judge's direction on joint enterprise was defective, in that he had failed to follow the classic direction suggested in R. v. Anderson and Morris (1966) 50 Cr. App. R. 216. The passage in the summing up complained of is as follows: -

" The prosecution case is that the defendants jointly committed the offences of falsely imprisoning both Jason and Madam CHU with the three other men under the legal doctrine of what is known as 'joint enterprise'. What they did was they deliberately and conveniently stayed away when the actual beating and threat took place. It is the prosecution case that the two defendants authorised, intended, approved and/or adopted what was done to Jason and Madam CHU.

The doctrine of 'joint enterprise' is for an offence that is committed jointly by two or more persons, each of them may play a different part, but each is guilty of the offence.

Before you can convict each defendant, you must, therefore, be sure that he committed the offence himself or that he did an act or acts as part of a joint plan, in the unlawful and injurious restraining of Jason and Madam CHU, with the others to commit the offence. To put it very simply, can you be sure on the evidence that they were in this job together ?"

24. If nothing further had been said, then that direction would have been defective. It contains no reference to acts outside the scope of the joint enterprise by one or other of the participants.

However, by saying two paragraphs later:-

" In other words, did the defendants intend, authorise, approve, adopt the act of the three men to at least restrain Jason and Madam CHU's freedom of movement from their home in order to force them either to pay the debt or to disclose the where- abouts of Mr LIU, LIU Wai-fan ?"

the defect was, in our judgment, cured by the judge.

25. Reading the summing up in context, the direction given by the judge was adequate. In any event, if it be thought not as clear as it might be, we would have had no hesitation in applying the proviso.

26. The fourth ground, which only A2 relies on, is that inadmissible hearsay was referred to by prosecuting counsel in the opening speech. There is nothing at all in this Ground of Appeal.

27. The fifth point, argued by both applicants, is that items of evidence which are favourable to the defence was not sufficiently dealt with by the judge. We have examined the items of "favourable" evidence alluded to in argument before us, which, even if specifically referred to in the summing up, would not detract from the quite substantial evidence that A1 and A2 at least adopted that which was done by the others in detaining the victims against their will by force. We find no merits in this Ground of Appeal.

28. The next argument, advanced on behalf of A2, is that the words uttered by him, viz., "I heard nothing and I saw nothing", as quoted by the judge in his summing up were, without the "inadmissible hearsay", meaningless or were capable of the meaning that A2 was addressing the debt collectors in an effort to dissociate himself from any acts not agreed upon or approved by him. In our judgment, it was a matter for the jury to determine, in the light of all the evidence, what meaning they gave to those words.

29. The seventh argument, again relied on by both applicants, is that the learned judge erred in directing the jury that it was completely irrelevant why Westwise Development Company Ltd collapsed inasmuch as it was relevant to the two applicants' state of mind and steps taken by them to recover money allegedly owed to them and their clients.

30. As the judge said in his summing up, there was no evidence as to the reason for the company's collapse, and the jury was quite rightly told, in effect, not to speculate. The question the jury had to consider was why, if the debt was owed by the father, were the mother and son being pursued, did the methods used amount to their being falsely imprisoned and what, if any, was the role of each defendant in all this.

31. The eighth argument, relied on by both A1 and A2, is that the judge was wrong and showed bias, in the following passage of his summing up, in that it went much further than the evidence warranted: -

" Is this strange, members of the jury, that someone went with three debt-collectors to the address of a debtor, either to find out the whereabouts of the debtor or to collect the debts, and it will be strange, will it not, if no threats or violence or, to put it in another term, strong-armed tactics were contemplated, one would wonder why it is necessary for the 1st defendant, later the 2nd defendant, to go to this place with three fierce-looking men in the flat, and that is the description by Jason of the three debt collectors, but that of course, members of the jury, is a matter for you, whether that is normal, legitimate and lawful pursuit of one's debts.

Mr Mitchell-Heggs also mentioned in the course of his address that debt-collecting is not necessarily unlawful in Hong Kong. That is quite true, but there are limits as to the method you use to pursue your debts. You may go to your debtor's address to argue with him, to persuade him or even to threaten him with legal actions, but if you go to the extent of using threats of violence and actual violence, do you think that would be a proper way of pursuing one's debts ?

That again is a matter for you and it is a question you have to consider."

32. In our view, these passages are perfectly legitimate comment. In any event, at the outset of his summing up, the judge had directed the jury: -

"If I seem to express any views on the evidence in the course of my summing-up, it is your duty to reject them unless you agree with my views because, in that case, they will become your views."

33. Ninthly, A2 suggested that the judge was wrong in saying to the jury that there was no evidence from A2 to undermine, contradict or explain the evidence put before the jury by the prosecution. The statement was quite correct. The judge was here clearly referring to the fact that A2 did not give evidence. There were, of course, also the cautioned statements of A2, put in as prosecution exhibits.

34. Lastly, both the applicants say that the convictions were unsafe and unsatisfactory in the light of the cumulative effects of their complaints. We do not agree.

35. For the foregoing reasons, the two applicants' applications for leave to appeal against their convictions are dismissed.

36. Before we leave this application, we think it necessary to say that our task could have been made less difficult by the submission of a skeleton argument. This was a fairly substantial application, with ten Grounds of Appeal and two applicants. Numerous passages in the summing up and evidence were referred to. We would, therefore, yet again, encourage the supply of a skeleton argument in any case of some length or complexity.

Representation:

Mr John McLanachan (DLA) for D1

Mr Cheng Huan QC and Mr Bernard Chung (M/s Ricky Li & Co) for D2

Mr A A Bruce for Crown/Respondent