R. v. Tung Tai Ching and Another

CACC000648/1995

IN THE COURT OF APPEAL

1995, No. 648
(Criminal)

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Coram: Hon Yang, C.J., Litton, V.-P. and Bokhary, J.A. in Court

Date of hearing: 4 July 1996

Date of judgment: 4 July 1996

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. There are two applicants before this court. The first applicant (A1) Tung Tai Ching seeks leave to appeal against both conviction and sentence. The second applicant (A2) Yip Kin Wo seeks leave to appeal against sentence only.

2. A1, who was the first defendant at trial, was charged on two matters: (i) common assault and (ii) false imprisonment jointly with the second defendant for which he was sentenced by HH Judge Longley in the District Court to a total of four years' imprisonment. The conviction for common assault carried one year's imprisonment consecutive to the three years' imprisonment for the false imprisonment charge.

3. A2 Yip Kin Wo was the second defendant at trial and he was convicted on two charges: (i) blackmail for which he was sentenced to 3 1/2 years' imprisonment and (ii) false imprisonment jointly with the first defendant for which he was sentenced to 3 1/2 years' imprisonment, two years of which to be served concurrently with the conviction on the blackmail charge making a total of 5 years.

4. The victim was a young man Cheung Wing-kin aged 24 at the date of trial. He lived at home with his parents. At the end of December 1992 he went to Macau to gamble without his parents' knowledge and lost all his money. He fell into the clutches of loansharks. He borrowed $20,000 in chips and lost all that too. He did not have the fare for the return journey to Hong Kong. He was accompanied by A2 Yip Kin Wo back to his home in Hong Kong but his parents were out. Next day he was told by A2 to repay $24,000. By 27 December he was told he owed $40,000. On 28 December A2 met Cheung in the street, took him to a telephone booth and dialled a number in Macau. The man at the other end of the telephone told Cheung he had better paid or he would be buried. From that point onwards until 2 January 1993 Cheung was in effect detained and this gave rise to the false imprisonment charge.

5. How A1 came into the picture was as follows. Cheung was taken to a karaoke establishment by A2 where five men and three women joined them. One of the five men was A1. From the karaoke establishment Cheung was taken by A1, A2 and others to A1's flat at Ma On Shan Temporary Housing Area where he was detained and he was kept there until 2 January 1993.

6. The charge of common assault against A1 related to an occasion on 29 December when A1 entered the flat and aggressively asked Cheung if he was fooling Ah Wo's brothers and proceeded to punch him on the head and abdomen.

7. On the evening of 31 December Cheung was taken to his father's place of work in the kitchen of the Miramar Hotel by A1 and A2 and another man. There A2 told Cheung's father that he (Cheung) owed them $150,000 and if Cheung's father failed to pay he would have no son to attend his funeral. This constituted the blackmail charge on which A2 stood convicted.

8. The two defendants and the other man then took Cheung back to A1's flat at Ma On Shan where he was further detained. Eventually Cheung was released after his mother had agreed on 2 January 1993 to pay $50,000.

9. At the trial A1 did not testify. So in essence Cheung's story in court was uncontradicted. In his statement to the police A1 admitted assaulting Cheung. This took place, he said, because at A2's request he had loudly asked Cheung in the flat why he did not repay money to A2 and in the process he had tapped Cheung roughly on the shoulder. As regards the use of the flat A1 said in his police statement that he had merely lent the flat to A2.

10. As regards the false imprisonment charge the issue before the judge quite simply was whether A1 had joined A2 in a common enterprise using his own flat for the purpose of keeping Cheung in unlawful custody. That was an issue of fact for the judge to resolve upon all the evidence before him.

11. Cheung was not an impressive witness. He had made a number of inconsistent statements to the police which the judge in his Reasons for Conviction had noted.

12. Cheung's explanation for these inconsistent statements was to the effect that when he was first interviewed by the police his parents were there and he, Cheung, did not want them to know that he had not been working. He explained that in the second statement to the police he continued the lie because he felt he was compromised by his first lie. Obviously, in the circumstances, the judge had to view his testimony with suspicion.

13. Cheung's story in court did not however stand alone. As far as the allegation of assault against A1 was concerned it was to an extent corroborated by A1's own statement to the police: though not in precisely the same terms in which Cheung testified the assault took place. Cheung's father and mother both gave evidence. There were aspects of the father's evidence which the judge noted were not entirely satisfactory. But to the extent that the judge accepted Cheung's father's evidence it also corroborated Cheung's story to an extent. At the end of the day it was for the judge to evaluate the evidence as a whole. As mentioned earlier A1 never testified at his trial. So the evidence in effect was all one way. Nothing suggests that the judge had erred in his approach to the evidence or in his evaluation. A1's application for leave to appeal to against conviction must therefore be dismissed.

14. We now turn to the question of sentence.

15. As regards A1 the total sentence for the two convictions amounted to four years' imprisonment. It may appear at first sight that a sentence of one year's imprisonment for the common assault was high. On the other hand the circumstances under which the assault took place must be borne in mind. The victim Cheung was totally helpless and under the power of these men. The judge was perfectly entitled to take those circumstances into account when considering the gravity of the assault. It constituted a separate crime and the judge was right to consider sentence consecutively.

16. As regards the false imprisonment charge the judge rightly took the view that A1's culpability was less than that of A2. He therefore sentenced A1 to three years' imprisonment and ordered that to be served consecutively to the sentence of imprisonment on the assault charge. In all the circumstances we cannot interfere with the sentence imposed in relation to A1.

17. As regards A2 the conviction of 3 1/2 years' imprisonment on the blackmail charge flowed from what in effect was a death threat. The judge quite rightly regarded that as a serious matter. As to the 3 1/2 years' imprisonment for the false imprisonment this reflected A2's greater culpability. In our judgment the total sentence of 5 years' imprisonment imposed in relation to A2 cannot be faulted. A2's application for leave to appeal against sentence must therefore also be dismissed.

Representation:

Mr G. Di Fazio, SCC (Crown Prosecutor) for Crown/Respondent

TUNG Tai-ching - 1st Applicant in person

YIP Kin-wo - 2nd Applicant in person