HKSAR v. Yuk Man Chun and Another

CACC 420/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 420 OF 2007

(ON APPEAL FROM HCCC NO. 112 of 2007)

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BETWEEN

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Before: Hon Stuart-Moore VP, Yeung JA and Saw J

Date of Hearing: 17 March 2009

Date of Judgment: 17 March 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background and facts

1.The applicants, Yuk Man-chun and Fung Tui-yat, (D1 and D2 at trial, respectively) were charged on indictment with a single count of conspiracy to commit forcible detention, contrary to section 42 of the Offences Against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.  On 20 November 2007, they were each convicted by the jury after a 33-day trial.  This enormous length of time for such a straightforward case, included the time taken for a voire dire to decide the admissibility of evidence.  D1 and D2 were sentenced on 20 November 2007 to 10 and 8 years’ imprisonment respectively.

2.The applicants sought in these proceedings to obtain leave to appeal against conviction.

3.In Mr Readings SC’s admirable summary, on the respondent’s behalf, of the prosecution’s case against each of the applicants, the essential facts are set out with accuracy and we propose, therefore, in large measure to adopt what he has said.

4.The particulars of the count alleged against the applicants were that they, “between a day in December 2006 and the 1^st day of February 2007 in Hong Kong, conspired together with ‘T’ to forcibly detain ‘X’ against his will, with intent to procure a ransom for the liberation of the said ‘X’”.

5.‘X’ (as the proposed victim of a kidnapping plot was referred to throughout the trial) was the 22-year-old son of a well-to-do family.  He was referred to by the conspirators in their meetings as “Little Prince”.  However, the plan was not able to be put into effect because ‘T’, a co-conspirator went to the police and told them of the plot after he had been let down by the applicants on an occasion when they merely stood by during an incident when ‘T’ was being beaten up.  After that, ‘T’ felt that he was likely to be betrayed by them so that he then decided to turn himself into a police informer.  In doing so, ‘T’ continued to pretend to the applicants that he was a party to the plot to kidnap ‘X’.

6.‘T’ and ‘X’ both gave evidence at trial and the other evidence against the applicants mainly took the form of their alleged confessions to the police.  ‘T’, who gave evidence under immunity, gave details of the meetings he had held either with D1 on his own or with both applicants.  It emerged that D1 and D2 were longstanding friends and that D1 and ‘T’ had known each other since childhood.  They had lost contact after school but in September 2006 they met in the street and stayed in touch thereafter.  D1 introduced ‘T’ to D2 during November 2006.

7.‘T’ described how D1 had masterminded the conspiracy.  There had been frequent discussions on the telephone or face-to-face about the proposed kidnapping and it was D1 who recruited ‘T’ and D2 as conspirators.

8.On 24 January 2007, when ‘T’ was in Golden Bauhinia Square and D1 and D2 were nearby, ‘T’ was set on and injured by three or four unknown men in regard to money he owed to loan sharks.  D1 and D2 gave him no assistance and, as a result of ‘T’ having to go to hospital with the injuries he suffered, the kidnapping had to be postponed.  On 26 January 2007, ‘T’ informed the police about what was being planned.

9.After further discussion between D1 and ‘T’ in the days following the incident at Golden Bauhinia Square, D1 told D2 and ‘T’ to meet him on 1 February 2007 when it was intended to carry out the kidnap.  On that day, ‘T’ was equipped with a cassette recorder.  Unfortunately, as the quality of the recording was so poor, this could not be used in evidence.

10.After ‘T’ had met with D1 and D2 on 1 February 2007, D1 called ‘X’, the intended victim of the kidnapping, on his mobile telephone.  Alone of the conspirators, D1 knew ‘X’.  D1 learnt from ‘X’ that he was in North Point.  D1 believed that ‘X’, who was a car enthusiast, was at some garages in Tin Hau and so he decided to drive D2 and ‘T’ to that location in order to point out ‘X’ to them.  As D1 drove around Tin Hau, he was able to locate ‘X’.  D1 pointed him out to D2 and ‘T’ and also got out of his car and walked over to ‘X’ to ask him out for dinner that evening.  At the same time, D2 and ‘T’ walked on the opposite side of the road to observe ‘X’.  Before leaving, D1 reminded ‘X’ to answer his call that evening.

11.D1, D2 and ‘T’ then met up again in D1’s car.  D1 said the kidnapping would be done that evening as he had asked ‘X’ out for dinner.  A few other details were discussed before they parted company.

12.At about 8 pm that evening, D1 called ‘X’.  When he learnt from ‘X’ that someone was following ‘X’s car, D1 told ‘X’ that he would call him later.  At about 9 pm, D1 spoke to ‘T’ on the telephone and related to him what ‘X’ had said.  He had decided by this stage that the kidnapping would have to be postponed.

13.At about 10 pm, the police moved in to arrest D1 and D2 at their separate locations in Wanchai Road.  D1 only said: “Ah Sir, I did not know what happened.”  He revealed, however, where his car had been parked and a search of it revealed, amongst other things, a cutter, a packet of plastic straps and a roll of black adhesive tape.  All of these items were concealed underneath other items in the back of D1’s car.

14.In his first interview, conducted later on, D1 did not reveal much except that he knew about the kidnapping plot but had no intention of participating in it.  In his second interview, D1 was cross-served with D2’s record of interview.  D1 then became agitated and gave further details about the conspiracy.  He put the blame on D2, suggesting that he was the mastermind and he maintained that he had no intention of helping D2 to carry out the kidnapping.

15.After D2’s arrest, D2 said it was D1 who had asked him to kidnap ‘X’ and he said that during the afternoon D1 had taken him to North Point to observe ‘X’ so that he would be able to recognize him in preparation for the kidnapping later that night.  D2 was interviewed twice during which he revealed that D1 was the mastermind.  He put all the blame onto D1.  He also participated in a case reconstruction, during which he provided details of the events that took place on 1 February 2007.

Defence case

16.Neither of the applicants gave evidence and no evidence was called on their behalf.  The presentation of the defence cases was largely upon the basis that ‘T’’s evidence was unreliable.  The stance taken on D1’s behalf was that what had been spoken about was mere empty talk.  D2’s position was that he had neither agreed to the plan or withdrawn from it.

Grounds of appeal

17.Both applicants wrote brief initial grounds of appeal which have since been supplemented by other grounds.  D1’s original homemade grounds are dated 7 November 2008 but we have now received a letter dated 9 March 2009 outlining various complaints about the way in which the judge summed up the law.  D2’s main grounds are dated 6 February 2009 and these were preceded by a complaint against his trial counsel in a letter dated 7 July 2008.  D2 also supplemented his arguments by a letter dated 11 August 2008.

D1's grounds

18.We can take D1’s wide-ranging grounds, which were not always easy to follow, very shortly.

19.D1 complained in his 1^st, 2^nd and 7^th grounds that the judge appeared to have invited the jury to convict either on the basis of “consenting to kidnap” or on the basis that he was “planning to kidnap”.  As to this, the judge’s directions on the law were impeccable and there was nothing in her directions on the count of conspiracy which reveals any error.  Importantly, also, the directions on the burden and standard of proof were correctly set out. 

20.D1’s next complaints were either in relation to the prosecution being permitted to call ‘T’ as a witness at all or, at the very least, about the way in which the evidence he had given was summed up by the judge.  In this regard, we were also taken in the proceedings today to the duties of prosecuting counsel in relation to the calling of tainted witnesses.  These complaints were without foundation.  The judge summed up the evidence ‘T’ had given with accuracy and, in particular, the jury were directed properly in regard to his credibility and reliability.  Amongst other things said by the judge on this topic, the jury were directed as follows:

“Mr T, the person named in the count as having conspired together with the two accused, has given evidence for the prosecution. You will remember defence counsel's points made in cross-examination of Mr T and in speech. The evidence of a witness like Mr T is called 'accomplice evidence', and he has given it under immunity. I must tell you this, members of the jury. Such evidence requires the exercise of extra caution from start to finish, especially if, as is the position here, the witness Mr T has previous convictions. In considering Mr T's evidence, you must always exercise extra caution. You have to consider the sort of man he is. In addition to having previous convictions, he has, as it were, done a deal with the prosecution.

The full terms of the immunity are known to you, since that immunity has been made an exhibit, being Exhibit P77. Each of you has a copy of it, which you will of course consider in full. What it amounts to is, in short, this: on the condition that he gives full and true evidence at this trial, he will not be prosecuted in respect of this offence or any other offence connected with it which he discloses. You have to consider that. And you have to consider whether his evidence might be inaccurate and indeed whether he might have deliberately given false evidence just to collect information money, to gain a benefit for himself and so on.

Having said that however, it does not mean that it is in any way improper for the prosecution to call a witness like Mr T and to rely on his evidence. It is perfectly proper for the prosecution to do that. It is legitimate -- indeed it is a good thing -- for people, even accomplices, to give true evidence against those on trial. That is so even if their reason for doing so, or one of their reasons for doing so, is to collect information money for himself. The question is whether his evidence is true. And that is for you, the jury, to decide. So, in respect of each accused, if after approaching Mr T's evidence with the extra caution it requires, you feel sure that he is telling the truth in the evidence which he has given against the accused, then you are entitled to act on such evidence, and there is nothing wrong in your doing so.”

21.D1 suggested in this ground also that the judge had misstated the evidence about how ‘T’ had informed the police of the kidnap plot.  The judge had done nothing of the kind and her summary of that part of the evidence was entirely correct.  This was as follows:

“The next day, 25 January 2007, he was interviewed by the District Anti-Triad Squad of Wanchai Police Station about the attack on him. At that interview, he had not told the police about the kidnapping. But when he went to the police station to see the squad on 26 January 2007 he told them about the kidnapping. He told them that they intended to kidnap a person. He revealed the kidnapping case because he thought that they might cheat him since they had not helped him when he was being beaten and he did not trust them. He used the slang expression 'put on the table' for cheating. Also he asked the police for informer's fee.”

22.In grounds 3 and 4, D1 complained about the examples chosen by the judge as to the way in which inferences might be drawn and he suggested also that the jury had been given ‘hearsay’ evidence by ‘T’ and ‘X’.  There was nothing of substance in these grounds.

23.The 5^th ground was a complaint in relation to the exhibits which might have been produced at trial but which were not in the event shown to the jury.  There was no substance to this ground and it is to be noted that D1 was represented at trial by counsel who would have decided what additional exhibits needed to be produced before the jury if the prosecution had not already shown them to the jury. 

24.The 6^th of D1’s grounds contained a suggestion that a police witness was allowed to give evidence about matters which were “unsupported by any evidence”, that ‘X’ had been permitted to attack D1’s character, and that, by the production of a pawn ticket, the prosecution had misled the jury into thinking that D1 was in financial difficulties.  In regard to the last point, the judge took the view that the pawn ticket, agreed under section 65C of the Criminal Procedure Ordinance, Cap. 221, added nothing to the prosecution’s case and directed the jury in those terms.  There was no substance to the other complaints contained in this ground.

25.The 8^th ground was a rather generalised complaint about how the judge had left the count of conspiracy with the jury.  We have already indicated that the judge’s directions contained, in our view, no error.  In particular, at no stage did the judge say, as D1 seems to have thought she did, that “if the defence version was not accepted, then the prosecution must stand”.

26.In another ground of appeal, D1 stated that the prosecutor was allowed “repeatedly” to lead the prosecution witnesses “to attack his character”.  In fact, there was one moment during the trial when the prosecutor had to be stopped from asking ‘T’ why he was afraid of D1.  In the summing up, the judge reminded the jury of this by saying that she had already directed them to ignore questions about why ‘T’ was afraid of D1.

27.In his letter, dated 9 March 2009, D1 again criticised the judge’s directions to the jury in regard to inferences, motive and aspects of the law relating to conspiracy.  There was no substance in any of these criticisms.

D2’s grounds of appeal

28.Two grounds of appeal were raised in D2’s original written submission. 

29.In the 1^st ground, he raised again the issue which was decided in the voire dire, namely, whether his statements to the police were voluntary and admissible.  There was nothing in this ground.  This topic was canvassed extensively in the voire dire and we do not propose to repeat D2’s complaints now.  Furthermore, in the summing up, the judge gave ample directions to the jury to explain how the statements made to the police should be approached.  Amongst the directions given, the judge said:

“Whenever you are faced with a disputed admission, the question, members of the jury, is whether you are sure that the accused made a true admission. Are you sure that the accused made it? If you are not, then ignore the alleged admission. If you are sure that the accused made it, then you are concerned with the truth of the admission. In deciding whether you are sure that any disputed admission is true, you should take into account all the circumstances in which it was made. Any pressure on an accused to make an admission lessens the reliability of any admission which the accused makes.

As you will remember, defence counsel have cross-examined the police witnesses by putting to them a series of allegations, all of which allegations the police witnesses have denied. In respect of the 1st accused, defence counsel has cross-examined the police witnesses to suggest, among other things, that the 1st accused was never cautioned upon arrest; that what he said upon arrest was not accurately recorded; and that the police had used impropriety consisting of inducements, oppression and unfairness to obtain the 1st accused's out-of-court statements. As I said, all of these allegations have been denied by the police officers concerned.

In respect of the 2nd accused, defence counsel has cross-examined the police witnesses to suggest, among other things, that the 2nd accused never said the words recorded in the post-record; and that the police had used impropriety consisting of violence, threats, inducements, oppression and unfairness to obtain the 2nd accused's signature to out-of-court statements and to make the 2nd accused say, in his video-recorded interviews, things that the police had taught him to say. As you will remember, all the police officers concerned have denied all these allegations of impropriety.

The police officers' evidence is to the effect that all the out-of-court statements were taken in the manner appearing on the face of these statements. In other words, in respect of each accused, the police witnesses denied anything had been done behind the scenes or off-camera, so to speak, that affected the propriety or reliability of the statements. Here, the allegations of impropriety made by each of the accused against the police officers are very serious. In respect of each accused, if you are unsure that an admission was made in circumstances free from such impropriety, then you should give that admission no weight. If, however, you are sure that the truth comes from the police officers and that an admission was made in circumstances free from impropriety or oppression, then you would be entitled to act on that admission.

On the 2nd accused's behalf, allegations have also been made of certain breaches of rules and directions governing the taking of statements. Such rules and directions have their place and their importance. Consider these allegations of breaches and what effect they may have on the reliability of any admission concerned. Similarly, consider the 2nd accused's allegations, denied by the officers concerned, that they had refused to let him telephone his family and had also refused to give him a list of lawyers on three occasions. You should consider all these allegations made on the 2nd accused's behalf, of breaches of rules and directions and of refusals to let him telephone his family and to give him a list of lawyers. But none of them prohibit you from acting on any admission here if you are sure, in accordance with my directions, that such admission is reliable.”

30.In his 2^nd ground, D2 complained about “the direction in respect of the credibility” of ‘T’ who gave evidence under immunity.  However, we have already set out (at paragraph 20 above) the directions given to the jury in this regard and there was no more the judge could have said.

31.Further grounds of appeal were received from D2 at various stages.

32.The 3^rd ground of appeal repeated to a large extent the complaint made in the 1^st ground.  There is, as we have indicated, no substance to this.  Allied to this ground, D2 pointed out that the officer-in-charge of his case, Senior Inspector Chan Kung-wai, committed suicide in July 2008.  The applicant has expressed a concern to look into the reason for this but we are satisfied that it is entirely irrelevant to this application.

33.In his 4^th ground of appeal, D2 raised a complaint against his trial counsel, suggesting that counsel had told the jury that “D2 did agree to D1’s request at the initial stage of the case that he would assist in kidnapping Mr X.  However, before taking any action, he refused D1’s request later”.  Counsel has been able to examine the notes he made for his final submission and has, in a very full affirmation dated 25 August 2008, set out ten passages from his notes in which it is plain that D2’s instructions were faithfully adhered to.  From those passages, it is plain that D2’s case was presented on the basis that D2 at no stage agreed to be a party to the plan to kidnap ‘X’.  We have taken the additional precaution, in saying this, of finding from the case file the closing speech note which counsel used and, further, of listening to the audio-recording of his speech in which he said, with amendments of the script to accord with the audio-tape:

“As for the events on 1.2.07, the conduct of D2 on that day does not indicate that he was a party to the conspiracy. As for his statements to police in the video interviews and video case reconstruction we say he was really responding to police inquiry about what D1 mentioned to him and what he knew about the kidnap plan. But, that D2 was not meaning to say he agreed to the plan. To the contrary, he pointed out to police in both VIR that he did not agree or had withdrawn from the plan.”

34.It could be said with some justification that this last sentence, standing on its own, might be regarded as ambiguous.  However, we have heard evidence from trial counsel.  He has also listened to the audio-recording and he confirmed, that in at least ten separate passages in his closing speech note he had made his contention clear to the jury that at no stage was the jury ever given to understand that D2 had joined as a party to the conspiracy. 

35.There is a passage in the summing up to which we must refer in this regard, where the jury was directed as follows:

“Counsel for the 2nd accused also attacked the reliability and sufficiency of the prosecution's evidence. He said that the 2nd accused did not agree to the plan or had withdrawn from it. If he had not agreed to kidnap, then of course he cannot be guilty. But if he had entered into an agreement amounting to the conspiracy charged, then he became a conspirator as soon as he entered into that agreement. He would be guilty even if, after having entered into it, he then withdrew from it. Consider everything each counsel said, doing so in a fair-minded and realistic manner, using your common sense and remembering always that you are the sole judges of the facts.”

This direction faithfully repeated what defence counsel had been saying.

36.Although the prosecution adduced evidence to show that D2 had brought straps and adhesive tape from his home and had put these in D1’s car before going with D1 in his car on the day the kidnap was intended to take place, it remained D2’s case that he had never agreed with D1 to such a plan.  In such circumstances, it was not, counsel said, that D2 had agreed to a plan to kidnap or had later “withdrawn” from the conspiracy but rather that D2 had withdrawn in the sense that he desisted in further involvement with the plan being suggested by D1.  In its full context, it is plain that what defence counsel had said was obviously correct and it is quite apparent from the way he had dealt with this aspect of the case, that D2 was denying involvement in the conspiracy.

Conclusion

37.There is no merit in the applications brought by D1 and D2 and, accordingly, both are dismissed.

Mr John Readings, SC, DDPP and Mr David Chan, SPP, of the Department of Justice, for the Respondent.

The 1^st Applicant, in person.

The 2^nd Applicant, in person.