The Queen v. Chung Yuk Kuen and Others

IN THE COURT OF APPEAL

1986, No. 204
(Criminal)

BETWEEN

_____________

Coram: Hon. Yang and Silke, JJ.A.

Date of hearing: 4^th November 1986

Date of delivery of judgment: 23^rd January, 1987

_____________

JUDGMENT

_____________

Yang, J.A.

1. This is an application for leave to appeal against conviction.

2. D1, 2, 3 and 4 were convicted of false imprisonment under Count 3. D5 and 7 were convicted of forcible taking away of a person with intent to procure a ransom for his liberation under Count 1, and forcible detention of a person with the same intent under Count 2. D6 was convicted of a single offence under Count 2.

3. D1, 2, 3 and 4 were acquitted of the charge under Count 2. D7 was acquitted of robbery under Count 4.

4. Count 3 charged all seven accused and was alternative to Count 2.

5. The matter which gave rise to the charges in this case originated in 1982, when a garment factory, called the Fat To or Fanno, entered into arrangements with D6 to manufacture car costs in China for export from Hong Kong as Hong Kong products. The garment factory was managed by Lau Tung-wah, assisted by his brother Lau Hung-kai who played. a minor role in the operation of the business. The victim of the charges,  Lau Chun-mau, was the youngest of the Lau brothers. He joined the family business.in 1982 as a general worker.

6. Owing to certain infringement of the regulations of the Industry Department by the garment factory (the facts of which it is not necessary to go into here), the factory broke off their dealings with D6 and finally ceased business in October 1984.

7. It was the Crown’s case that D6 was unhappy with the cessation of business relationship with the Lau brothers and demanded, with threats, that the Lau brothers should pay him $18,000 in 18 equal monthly instalments. At a meeting in March or April 1985, Lau Tung-wah agreed to D6' s demands. On the 6th May 1985, Lau Tung-wah paid the first instalment, but owing to D6's refusal to issue a receipt, he stopped making any further instalment payments. A meeting held in May 1985 between Lau Chun-mau representing Lau Tung-wah and D6 did not lead to any satisfactory solution to the dispute.

8. The next important event took place at about 8 a.m. on the 6th August 1985 when Lau Chun-mau was abducted from the car park at his home and detained for the better part of the day.

9. According to Lau Chun-mau's evidence, as he was approaching his car, three men ran towards him and shouted something to the effect that he could not get away. He tried to escape but was grabbed, punched and kicked. Then he was pushed into a car with a fourth man at the wheel. He later identified D5 and D7 as being two of his assailants. In the car D7 said to Lau Chun-mau: "There are knives in the car so that you would have been stupid to resist." When the car arrived at Mongkok; it was stopped by a policeman for having clumsily made a U-turn. D7 then told Lau Chun-mau, "Keep quiet. Get off the car. Don't go away." The victim complied and D7, and another man also alighted. These two men put their hands on his shoulders and marched him into the Luen Fat Restaurant nearby.

10. Inside the restaurant, according to Lau Chun-mau's evidence, D6 showed him a number of documents issued by the Court in Guangdong  Province pressing D6 for repayment of money owed in China "because of the work carried out for … the Fanno Factory." He wanted Lau Tung-wah to pay him the sum of money which he was ordered by the Chinese court to pay. D7 told him that unless he telephoned his brother Lau Tung-wah to say that he was with D7 and that his brother should raise $100,000-odd to pay a debt owing to D6, the members of his family would be killed, he would not be released, and that he might be given 10 pounds of white powder so that he might be sent to prison for 10 years for having the drugs in his possession. The victim said in evidence that every one his captors had threatened him. Being frightened, the victim passed this message on to Lau Tung-wah.

11. The victim's evidence related above refers to Count 1.

12. The victim's evidence as to the remaining three counts is as follows.

13. D5 and D6, later joined D7 at the Luen Fat Restaurant. On arrival D6 told Lau Chun-mau that Lau Tung-wah owed him $140,000. Again, being frightened, Lau Chun-mau telephoned his two brothers and also his mother-in-law.

14. There was evidence that upon receiving the victim's telephone call at about 10 a.m., Lau Tung-wah told the victim's wife by telephone. She immediately reported the matter at the Shatin Police Station alleging that her husband had been kidnapped.

15. In the meantime, from the Luen Fat Restaurant, Lau Chun-mau was taken by D5, D6, D7 and a fourth man to the Tai Li Restaurant nearby. That was 11a.m. There the victim was again instructed by his captors to telephone Lau Tung-wah upon the same matter. His brother being out, he finally reached a relative who was also an employee of the Fat To Garment Factory, Chan Kam' Shing, by means of the paging system. Chan was reached at the Shatin Police Station. After some discussion, measures were taken at the police station to have telephone calls (five in all) coming from Lau Chun-mau recorded on a tape (Ex. P2A-F). All five calls related to the demand of $140,000. One of the tapes also revealed that the victim instructed Chan to take the $80,000 that had been raised to Mongkok and then to telephone D6's paging number for a meeting place for the money to be handed over.

16. Later Lau Chun-mau was able to identify the voices on the tape as he was present and in close proximity to the speakers.

17. Lau Chun-mau further stated in evidence that when his captors were informed that $80,000 had been raised, D7 ordered him to write out an I.O.U. promising to pay the balance of $60,000 to D6 the following day. The victim complied with the order (Ex. P4). D7 also ordered him to hand over the Rolex watch (Ex P3: the subject matter of the robbery charge: Count 4) to D7 immediately gave to D4 to wear.

18. At about 4 p.m., D2, 4, 5, 6 and 7 took Lau Chun-mau from the Tai Li Restaurant to the Ho Ho Restaurant in the neighborhood. D1 and D3 joined them there. After a short stay at the Ho Ho, the victim was taken by all seven defendants back to the Tai Li Restaurant.

19. In the meantime, a plan was made by the police to rescue Lau Chun-mau.

20. The Crown’s case then went on to the final stages of the episode under consideration.

21. At about 6.45 p.m. Lau Tung-wah and Chan kam-shing met D4, 5, 6 and 7 by arrangement outside the Ruby Restaurant, with the police keeping watch nearby. It was Lau Tung-wah's evidence that the two groups entered the Wing Hing Noodle Shop, and there D6 asked Lau Tung-wah whether he had brought the money with him. Upon his reply in the affirmative and his insistence to see Lau Chun-mau, D6 said to him: "Get someone to take money and I bring Lau Chun-mau' here." Chan Kam-shing then went to his car with D4 and took out a brown brief case supplied by the police, pretending that it contained money. Meanwhile D5 was seen by the police to emerge from the noodle shop and proceed to Tai Li Restaurant, and later came out with Lau Chun-mau and two other men. According to Lau Chun-mau's evidence, he was escorted by D1, 2 and 3 from the Tai Li to the Wing Hing Noodle  Shop. As they were approaching the noodle shop, Inspector Wong went forward towards them, shouting, “Police; don’t move!” - at the same time pushing D5 against the well, whereupon a detective constable handcuffed him.

22. D2 and 3 and another man tried to escape on hearing Inspector Wong’s shout but D2 and 3 were subdued after a struggle. The police party then apprehended D4, 6 and 7 inside the noodle shop. They were then seated together with Lau Tung-wah and Chan Kam-shing. On information given by the victim the police recovered from D4's person the victim's Rolex watch and the I.O.U. note. D1 was not arrested at that time.

23. Subsequently statements were taken from D6 (Ex P7) and D1 (Ex P11). By agreement of counsel on both sides certain evidence was admitted. Firstly, medical evidence showed that the victim suffered multiple abrasions on his elbows, chest and right knee, swelling of the  nose and a small cut near the left eye. Secondly, Lau Chun-mau identified all seven defendants at an identification parade; Lau Tung-wah identified all defendants except D3; Chan Kam-shing identified D1, 4, 5, 6 and 7. Chan Hung-yu a waiter at Tai Li Restaurant, identified D6 and 7.

24. The evidence of Lau Chun-mau may therefore be summed up in one sentence: He was forcibly taken away and held against his will throughout the day, during which time he, being much frightened by the threats that he would not be released until a ransom was paid, complied with his captors' various orders.

25. The defendants did not give evidence or call any witnesses.

26. Three grounds of appeal have been advanced. For the sake of convenience, these will be dealt with in the reverse order.

27. The third ground was argued on behalf of all the defendants except D3. It concerns a passage in the summing up where the trial judge explained to the jury that if they thought the prosecution's case stood or fell with Lau Chun-mau's evidence, (1) they should acquit all the defendants if they disbelieved the whole of Lau Chun-mau's evidence; (2) they should consider his evidence together with the other evidence if they should accept his evidence in full or in part; and (3) if' they should find his evidence partly credible but conclude that he was free to move as he wished then the defendants ought to be acquitted on the first three counts. It was submitted before us that the judge erred in failing to explain to the jury that they should acquit on the first three counts if they were not sure that Lau Chun-mau accompanied some or all of the defendants of his own free will. In our judgment the judge adequately directed the jury on the burden of proof as well as standard of proof. He said immediately after the passage alluded to above, “If at the end of the day you are left in some doubt, which means a reasonable doubt and not a fanciful one, as to the guilt of a defendant in regard to one or more counts, you should acquit him of that count or those counts as the case may be”. We see no merits in this ground of appeal.

28. The second ground is common to all the seven applicants. It was submitted on behalf of the applicants that the trial judge erred in failing to put the defence case adequately or at all to the jury in three respects, vi z. (1) that he failed to explain to the jury the defence and its implications in respect of each defendant individually; (2) that he failed to outline or remind the jury the case each defendant advanced in the course of cross-examination or at the suggestion of counsel during the trial; (3) that he failed to remind the jury of important evidence which tended to contradict Lau Chu-mau’s evidence that he was detained against his will.

29. In this connexion we were referred to a number of suggestions raised by defence counsel as showing (i) that Lau Chun-mau signed the I.O.U. note voluntarily, (ii) that he gave his Rolex watch to D7 as a sign of good faith, (iii) that D6 was merely told to sign a cautioned statement (Ex P7) written out by a police officer, and (iv) that the relative positions of the defendants at or about the time of their arrest in relation to the victim indicated that he was free to move about. These suggestions were denied, and are not supported by evidence. In our view, a jury is not entitled to disregard the evidence and base their verdict upon counsel's suggestions.

30. We were also referred to certain evidence which was said to be capable of an interpretation favourable to the defence. Firstly, it was submitted that there was evidence indicating that the victim had not been abducted by D5 and 7 on the morning of the 6th August 1985. This is not entirely correct, for there was evidence, if believed, that the victim was assaulted and threatened at his car park before being taken away in his assailants' car. Secondly, it was submitted that Lau Chun-mau was never a captive, but the evidence remained that he had been threatened and assaulted and continued in the company of some or all of the defendants throughout the day. It seems idle to say that he was able to exercise his own free will in those circumstances.

31. Thirdly, we were referred to four other areas of the evidence:

(a) that of a waiter (PW5) at the Tai Li Restaurant that at about 4 p.m. on the 6th August, six persons came and stayed for about two hours and they were free to move around. It is true, on his evidence, that the jury might have come to the view that at 4 p.m. at least Lau Chun-mau had the appearance of being free. It is also true that the judge did not make any mention of this evidence in his summing up. Whilst it would have been better for the judge to refer to it, in our view it was not vital for him to do so. Against that evidence, there was that of the victim that he had been forcibly taken in the morning and that D2, 4, 5, 6 and 7 escorted him from the Tai Li to the Ho Ho Restaurant and back to the Tai Li again;

(b) the contents of the telephone conversations recorded on tape did not indicate detention against the victim's will. The jury had the transcript of the telephone conversations before them. It was not necessary for the judge to suggest the kind of interpretations that might be made of them. It was for the jury to evaluate that which was on the tape in the light of all the evidence;

(c) Inspector Wong's evidence of the relative positions of the defendants and the victim. This did not, in our view, carry either the prosecution's or the defendants' case very far;

(d) that of Lau Chun-mau and Lau Tung-wah on the previous meetings between the parties suggests that these were more than the kind of business disputes suggested by the defence. At an early meeting with D6 and 7 in March or April Lau Chun-wah represented his brother Lau Tung-wah and he was supported by about 10 persons, one of whom was Lau Tung-wah's friend and the others the friends of that friend. And there was the victim's evidence that the ten men attended the meeting "possibly for the sake of safety". Lau Tung-wah’s evidence was that “if the matter was not solve (sic) then it would not be comfortable even to go to work". And he referred to threats by D6.

32. Having considered the totality of the second ground, the manner in which the trial judge deals with the evidence generally in his summing up, we have come to the conclusion that his directions were adequate and the ground fails.

33. The first ground of appeal relates to the first four applicants. There are three sub-headings, the gist of them is:

(a) that the trial judge failed to adequately point out to the jury what evidence the Crown had adduced, against each applicant and the particular matters that the jury would have to find proved before convicting each applicant, and no attempt was made by the judge to relate certain stated legal principles to the evidence;

(b) the trial judge failed to direct the jury that before anyone of the first four applicants could be convicted as aiders and abettors under Count 3 they had to be satisfied that each applicant knew the relevant facts; and.

(c) the trial judge failed to direct the jury that before an adverse inference could be drawn against an accused, they must be satisfied that the inference was a compelling one and the only one.

34. It is not suggested under the first sub-heading of the first ground of appeal that the judge was in error in his summary of the evidence. What is being argued is that in a long and complex trial of this nature, with 13 prosecution witnesses and lasting 23 hearing days, the judge ought to render the necessary assistance to the jury by relating the evidence against each of the defendants to the necessary proofs. This judge did not do. Nor did the judge, after referring to certain legal principles; attempt to relate them to the evidence, which was, it is argued, essential having regard to the nature of the evidence and the number of accused on trial.

35. Under the second sub-heading, it is argued that the judge failed to draw the jury's attention to the significant difference in the involvement of the first four defendants: if these four defendants were not guilty of aiding and abetting D5, 6 and 7, then they were not guilty of anything. It is argued that the judge in his direction to the jury on aiding and abetting failed to relate it to the individual defendants.

36. It is further argued, under the same sub-heading, that the judge failed to direct the jury that a person cannot be convicted of aiding and abetting the commission of an offence unless he knew the facts which must be proved to show that an offence has been committed: Johnson v. Youden [1950] 1 K.B. 544; Ferguson v. Weaving [1951] 1 K.B. 814. Also the jury should be told that a person who does not know of the acts which the principal is doing cannot be charged with aiding and abetting him, because he does not know that he is doing acts which amount to an offence: Thomas v. Bishop [1950] 1 All E.R. 966.

37. The third sub-heading under the first ground of appeal is based on the case of Kwan Ping-Bong; (1979) H.K.L.R. 1, at 5, the last two paragraphs thereof. The judge in the present case, having said to the jury that facts might be proved by inference, gave the following example:

“For example, A and B were the only two persons in a flat when A put his radio on a table in the sitting room. The telephone at the nearby desk rang and A attended to it. Whilse so doing he had his back to the radio and heard a banging of the door. He turned around and found that B and the radio had gone. In those circumstances, A could draw the inference that B had left with the radio and that is a reasonable inference.”

38. In this connexion counsel for the applicants argue that there was nothing to show that the first four defendants knew there was or had been an abduction or forcible detention. A clear distinction ought to have been drawn between presence with mens rea and mere presence.It is further argued that the judge failed to direct the jury the inference must be a compelling one.

39. In the light of the separate sub-headings in this first ground, it is now necessary to examine the more important evidence which relates specifically to each defendant.

40. There was evidence that during the time he was at the various restaurants the victim tried to leave but he was not free to do so. It was also conceded on behalf of the first four applicants that threats were uttered at various times throughout the day.

41. D1 and D3 joined D2, 4, 5, 6 and 7 at the Ho Ho Restaurant at about 4 p.m. on the 6th August 1985. This was the first time the victim saw D1 on that day. The stay there was a short one, following which the victim was taken back by all seven defendants to the Tai Li Restaurant. D1 was present when the victim was threatened at Tai Li, after their return from the Ho Ho. Then D1, 2 and 3 escorted the victim from the Tai Li to the Wing Hing Noodle Shop. At 9.45 p.m. D1 arrived at the Shatin Police Station to bail out D6. A statement from D1 was taken by the police. When it appeared to the police that he had participated in the offences now under consideration he was charged.

42. D2, 4, 5, 6 and 7 took the victim from the Tai Li Restaurant to the Ho Ho Restaurant. D1 and 3 joined them at about 4 p.m. After a short stay, the victim was taken back to the Tai Li by all seven defendants. Whilst at the Tai Li, threats were uttered. Later D1, 2 and 3 took the victim from the Tai Li Restaurant to the noodle shop. Later when the police party arrived at the noodle shop, D2 and 3 tried to make off but were subdued after a struggle.

43. D3 and 1 first joined the other five defendants at about 4 p.m. at the Ho Ho. After a short stay, the seven defendants took the victim back to the Tai Li Restaurant, where threats were uttered. From this restaurant, D1, 2 and 3 took .the victim to the Wing Hing Noodle Shop. The circumstances in which he and D2 were arrested have been noted.

44. D4 was with D5, 6 and 7 from about 11 a.m. that day at the Tai Li Restaurant until their arrest in the evening. He was found to have in his possession the I.O.U. note written by the victim and also his Rolex watch. His role in escorting the victim to various places has already been referred to. He and Chan Kam-shing went to the latter’s car to take out the brief case. Later he was arrested with D6 and 7 in the noodle shop.

45. It is further argued on behalf of the first four applicants that their convictions on Count 3 and acquittals on Count 2 were inconsistent and unrealistic. If D1, 2, 3 and 4 were guilty of false imprisonment (Count 3), then from the very nature of the evidence they must have known of the demands of ransom and therefore guilty of forcible detention (Count 2).

46. The part played by D5, 6 and 7 in the morning of the 6^th August, from the time of the alleged abduction at 8 a.m. to the first visit to Tai Li Restaurant at 11 a.m. has been mentioned. Then there was the evidence of the telephone calls recorded on tape, the writing out of the I.O.U. note and handling over of the Rolex watch by Lau Chun-mau and Lau being escorted by D2, 4, 5,6 and 7 from the Tai Li to Ho Ho, and then back to the Tai Li. Next came the events at about 6.45 p.m. at the Wing Hing Noodle Shop. And finally, the evidence of their arrest.

47. We now return to the first sub-heading of the first ground of appeal.

48. It is true that the judge did not specifically state which evidence related to which individual accused. Instead he gave a chronological summary of the prosecution's evidence, mentioning those accused implicated at particular stages of, the events as they developed. He began by explaining all the relevant legal principles in clear terms. In our judgment, his directions were adequate and clear. The jury was told which were the accused implicated at any particular time. The legal principles having been stated at the outset of the summing up, it was not necessary for the judge to repeat them when he gave a brief account of the evidence. Indeed if the judge erred at all, he erred in not drawing the jury's attention to threats uttered throughout the day, nor to the threats uttered at the Tai Li Restaurant. However the omission was to the advantage of the defence, and no point was taken upon it by either the applicants or the Crown. In our view there is nothing under this sub-heading.

49. As to the second sub-heading of the first ground of appeal, the judge's direction on aiding and abetting is as follows:

As regards participation, the law say that apart from the people who actually commit the offence, a person who aids, abets, counsels or procures the commission of that offence is also guilty of it. That is because you do not expect all of them to be doing exactly the same thing. So to make a person guilty as an aider or abettor, you have to be satisfied on these aspects, firstly, that he was present at or near the scene of crime as a result of a common purpose to commit that offence, secondly, that he was there with an intention to encourage or assist others, and, thirdly, that he assisted or encouraged the principal offender at the material time or was ready to do so if necessary. For example, if three men go into a bank to rob, they are principal offenders, but if there is a fourth person who watches outside the door of the bank and is there to help his comrades, such as to warn them of the appearance of the police or to carry the loot, then that fourth person is aiding or abetting the robbery and is as guilty as the other three."

50. Whilst the judge did not use the word "knowledge", it is difficult to see how the jury could have failed to understand that knowledge was one of the ingredients required. The judge referred to common purpose, which by necessary implication includes the requisite knowledge of the facts which must be proved to show that an offence had been committed. Similarly, the reference to an intention to assist or encourage implies knowledge of the relevant facts.

51. In any event, the evidence clearly shows that threats were uttered throughout the day, and that Lau Chun-mau had ample reasons to believe that he was in custody. D1, 2, 3 and 4 were with Lau Chun-mau for most of the day, and they went with him from place to place. There was evidence that he was obliged to follow them. The only inference that can be drawn from all the circumstances is that he was in the custody of these four applicants. In the circumstances, D1, 2, 3 and 4 must have known of the facts which constituted false imprisonment, though they might not have appreciated that a ransom was being demanded. Though it is not for us to speculate it may perhaps be said it is for this reason that they were found not guilty of Count 2 but guilty of Count 3. D5, 6 and 7 on the other hand were in a different category they were involved from the initial stage to the last, and it was they who made the demand for ransom at the outset. This ground also fails.

52. The third sub-heading under the first ground needs be considered with the second sub-heading, particularly on the issue of mens rea. In our judgment, if the judge's direction is read as a whole and in its proper context, the only reasonable interpretation that may be given to it is that mens rea is required. The judge went on to tell the jury that they had to be satisfied from the evidence so that they could feel sure of a defendant's guilt before they could convict him. While the judge should have told the jury that an inference must be compelling in the Kwan Ping-Bong sense, we do not think that the directions given by him caused any miscarriage of justice so as to make the convictions unsafe or unsatisfactory.

53. For the forgoing reasons, the application for leave to appeal against conviction is dismissed.

Mr. G. Plowman (So & Karbhari) for D1, D2, D4, D,5, D6 and D7

Mr. A. King (D.L.A.) for D3

Mr. Harris for Crown/Respondent