HKSAR v. Lam Yung Yung

[English Translation – 英譯本]
CACC 428/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 428 OF 2008

(ON APPEAL FROM DCCC NO. 1126 OF 2007 & 533 OF 2008)

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BETWEEN

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Before: Hon Tang VP, Yeung and Yuen JJA in Court

Date of Hearing: 12 August 2009

Date of Judgment: 12 August 2009

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JUDGMENT

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Hon Yeung JA (giving the Judgment of the Court):

1.The applicant Lam Yung-yung and 8 other defendants were charged with one count of conspiracy to defraud before Deputy District Judge A. Yuen. The prosecution alleged that the applicant and her conspirators conspired to defraud a number of finance companies of loans by means of some false documents in the period between May and November 2006.

2.The applicant pleaded not guilty but was convicted of the charge after trial. The applicant now applies to this court for leave to appeal against conviction.

Facts not disputed

3.At the material times, a number of people applied for loans from various finance companies on numerous occasions by means of false documents. The applicant was involved in one of them. The evidence shows that the applicant successfully obtained a loan of $8,000 from Public Finance Limited on 8 November 2006. The applicant provided to Public Finance Limited a false proof of employment, which showed that she was employed as a saleslady by Digital Crown Holdings (HK) Ltd. at a monthly salary of $7,500. At the same time, the applicant provided her correct residential address at San Po Kong in support of her application for a loan. In fact, Digital Crown Holdings (HK) Ltd. had never employed her as a saleslady. And the employment record supplied by the applicant, which showed that she was in the employ of Digital Crown Holdings (HK) Ltd., was also a forged document.

4.With the exception of the applicant, all the other 8 defendants in the case pleaded guilty to the charge. Some of the defendants claimed that the 9^th defendant Ng Fei-tat was the mastermind. They also claimed that he not only arranged for the other defendants to apply for loans from financial institutions by means of false documents, but also subjected the 2^nd defendant (Ma Pui-man), the 4^th defendant (Chu Pui-yin), the 5^th defendant (Lau Oi-ying) and the 6^th defendant (Lee Ka-yan) in the case to threats in order to get their cooperation.

5.Despite his plea, Ng Fei-tat denied having ever threatened any of the defendants. As a result, the trial judge had to hear evidence from them and make relevant findings before passing sentence. In the end, the trial judge found that the prosecution had failed to prove that Ng Fei-tat had in fact threatened Ma Pui-man, Chu Pui-yin, Lau Oi-ying or Lee Ka-yan.

6.The applicant pleaded not guilty to the charge on the basis that she did not cooperate with Ng Fei-tat voluntarily in obtaining a loan from Public Finance Limited by means of a false document. She claimed that she committed the offence because she had been put under duress exerted by Ng Fei-tat. Therefore, she should not be convicted.

Evidence from prosecution witnesses

7.There were four witnesses, namely Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan, whose evidence was directly concerned with the applicant.

8.Ma Pui-man said that after making the acquaintance of Ng Fei-tat in early 2006, Ng Fei-tat asked her to introduce some friends to him in order to help him borrow money from finance companies. Ma Pui-man stated that she had introduced the 4^th, 5^th and 6^th defendants and the applicant to Ng Fei-tat. Ma Pui-man agreed to call the applicant and arrange for a meeting in early November 2006. At the meeting, Ng Fei-tat gave some documents to the applicant and asked her to approach Public Finance Limited for loans. Ma Pui-man denied ever threatening the applicant. Nor did she hear Ng Fei-tat making threats to the applicant.

9.Chu Pui-yin stated that she agreed to cooperate with Ng Fei-tat because the latter had threatened her that he would get someone to splash her home with red paint if she did not agree to cooperate.

10.Lau Oi-ying also came to know Ng Fei-tat through Ma Pui-man. Subsequently, Ng Fei-tat asked her to take out loans from finance companies and if she succeeded, she would get 50% of the loan as her reward. Lau Oi-ying stated that she refused to cooperate at the beginning but she later agreed to cooperate because Ng Fei-tat threatened her that he would get someone to splash her home with red paint.

11.Lau Oi-ying was acquainted with the applicant. She agreed that she met Ng Fei-tat and several defendants including the applicant at Mongkok in early November 2006. At that time, Ng Fei-tat asked them to take out loans for him from finance companies by using false documents. But all of them refused. Lau Oi-ying stated that some of the defendants agreed to cooperate with Ng Fei-tat only after Ng Fei-tat had threatened them.

12.Lee Ka-yan also made similar allegations. She emphasized that she agreed to cooperate with Ng Fei-tat to take out loans from finance companies using false documents only because he had threatened her. She stated that the applicant did refuse Ng Fei-tat’s request but she did not notice whether or not Ng Fei-tat had threatened the applicant.

Defence

13.The applicant did not give evidence for her defence. Nor did she call any witness. She agreed that she did in fact, at the request of Ng Fei-tat, take out a loan from Public Finance Limited by using a false document and did get part of the loan as her reward.

14.However, the applicant pointed out that there was evidence to show that she did not cooperate with Ng Fei-tat voluntarily but succumbed because Ng Fei-tat had subjected her to duress. The applicant’s stance was that in the circumstances, as she did not take part in the conspiracy to defraud voluntarily and she was not dishonest, she should not be held liable for the crime.

The trial judge’s verdict

15.The trial judge pointed out that the 1^st to 8^th defendants had agreed to cooperate with Ng Fei-tat to take out loans from financial companies by using false documents but only Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan claimed that Ng Fei-tat had subjected them to duress. The other defendants including the 1^st defendant Tam Man-yee did not claim that Ng Fei-tat had threatened them. The trial judge pointed out that as Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan were friends and they made the same allegation, he had reservation over it.

16.The trial judge was of the view that even if Ng Fei-tat had actually subjected some of the defendants, including the applicant, to duress, the applicant still could not plead duress as her defence in order to exonerate herself from the crime.

17.The trial judge pointed out that in order to rely on the defence of duress to exonerate oneself, the duress must be so serious that it must be to cause death or serious injury to the defendant or to others. Threats of assault or splashing of red paint would not suffice. The trial judge also stressed that the applicant had the opportunity to seek help from her family, friends or even the police.

18.The trial judge found that the defence of duress was not available to the applicant and convicted her of the offence of conspiracy to defraud accordingly.

Grounds of appeal

19.Mr. Peter Chow, counsel for the applicant, raised a number of grounds of appeal and elaborated them in further details in his skeleton written submission.

20.Mr. Chow complained that the trial judge failed to deal with the defence raised by the applicant properly and correctly.

21.Mr. Chow pointed out that as revealed by the summary of facts of the prosecution, Tam Man-yee, Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan had all alleged that they had been subjected to duress exerted by Ng Fei-tat before they agreed to his request to take out loans from financial institutions by using false documents. Therefore, the trial judge should not have had any reservation over such allegation of theirs.

22.Mr. Chow submitted that the trial judge failed to consider properly whether the applicant had been put under duress. He stressed that the applicant should still be found not guilty even if it was only likely that she had been put under duress.

23.Mr. Chow also emphasized that the mere threats uttered by Ng Fei-tat of splashing red paint at the applicant’s home or assaulting her did not necessarily fail to found the defence of duress. He submitted that the trial judge failed to deal with this issue properly.

24.Mr. Chow argued that the trial judge should have firstly found whether or not the applicant had been subjected to threats uttered by Ng Fei-tat of splashing red paint at her home or assaulting her, and then determined whether those threats (if any) could have founded the defence of duress. Mr. Chow stressed that the trial judge should have still found the applicant not guilty if he could not be sure whether or not she had been put under duress. He also said that the trial judge had failed to consider the personal background of the applicant including factors like her youth and immaturity. As a result, the trial judge reached a verdict which was unfair to the applicant.

25.Mr. Chow stressed the point strongly that the applicant only received a reward of $1,200 in the incident and she fully repaid the loan two months after the granting of it. Coupled with the fact that she had supplied her correct address to Public Finance Limited, all these showed that the applicant had not acted dishonestly.

26.Mr. Chow argued strongly that the applicant in fact did not have the mens rea in the incident. But the trial judge failed to assess the evidence properly nor give sufficient reasons for his verdict. Therefore, the conviction of the applicant was unsafe.

Discussion

27.The evidence adduced by the prosecution against the applicant was very simple and also undisputed. The applicant made use of the false document and information provided to her by Ng Fei-tat to falsely claim that she was employed as a saleslady by Digital Crown Holdings (HK) Ltd. at a monthly salary of $7,500 and successfully obtained a loan of $8,000 from Public Finance Limited. The applicant gave Ng Fei-tat $6,800 and kept $1,200 as the reward for herself.

28.The above undisputed facts showed that there was an agreement between the applicant and Ng Fei-tat to defraud Public Finance Limited. Any reasonable person would have certainly found that the acts of the applicant were improper and dishonest. The applicant herself also would have certainly thought that such acts were improper and dishonest. Otherwise she would not have claimed that she had acted under duress.

29.The argument advanced by Mr. Chow that the applicant did not have the mens rea and had not acted dishonestly was not at all convincing. The fact that the applicant had supplied her true address and made full repayment of the loan to Public Finance Limited afterwards could not refute that the applicant had the mens rea and had acted dishonestly.

30.The only important point in this case is whether the defence of duress raised by the applicant can be established.

31.Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan all claimed that they agreed to cooperate with Ng Fei-tat to defraud finance companies of money because they had been threatened by him. It was also mentioned in the prosecution’s summary of facts that under caution, Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan had claimed that they all had been threatened by Ng Fei-tat. But the trial judge and the prosecution did not necessarily have to accept such claims.

32.The trial judge obviously had doubts about those claims and so he decided to hear evidence from Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan before he would determine the said issue.

33.In fact, there was no direct evidence to show that the applicant had been threatened in any manner by Ng Fei-tat or others which resulted in her taking part in defrauding Public Finance Limited.

34.Ma Pui-man denied having threatened the applicant. Nor did she hear Ng Fei-tat threatening her. Chu Pui-yin did not say that she heard Ng Fei-tat threatening the applicant. Lau Oi-ying said that Ng Fei-tat had threatened to get someone to splash red paint at her home. She also said that in the meeting in early November 2006, Ng Fei-tat requested her and other defendants including the applicant to take out loans with finance companies by making use of false documents. All of them refused. And some defendants agreed to cooperate with Ng Fei-tat only after he had threatened them. Lau Oi-ying did not state clearly that Ng Fei-tat had threatened the applicant or by what means or in what language he had threatened her. Nor did she say that the applicant succumbed to the threats.

35.Lee Ka-yan stated all the more clearly that she did not notice whether the applicant was put under any duress by Ng Fei-tat.

36.More importantly, the applicant did not give evidence and there was in fact no evidence to show that she had been indeed threatened by anyone, or the nature of the threat, or the influence that the threat (if any) had on her.                             

37.In the said circumstances, there is in fact no sufficient basis for the applicant to rely on in order to raise the defence that she participated in the crime under duress.

38.Rightly as the trial judge pointed out, even if the case was dealt with in the most favourable light to the applicant, the relevant evidence at the most only showed that Ng Fei-tat had indicated to the applicant that her home would be splashed with red paint or she would be assaulted.

39.In R v Hasan [2005] 2 AC 467, the English Court of Appeal stated clearly that in deciding whether duress could afford a defence to the commission of crime, the court should consider three factors: (1) the nature of the threat; (2) the efficacy of the threat and (3) the offences and characters that the availability of that defence would exclude.

40.All the authorities stated clearly that to found a defence of duress to an offence, the threat must be such as to involve death or grievous bodily harm. 

41.It was also held in R v Quayle [2005] 1 WLR 3642 that to found a defence to the crime, the threat concerned must be imminent and related to physical injury.

42.Lord Bingham identified 7 limitations of the duress defence in R v Z [2005] 2 AC 467 as follows:

“(1)            Duress does not afford a defence to charges of murder, attempted murder and some forms of treason;

(2)       To found a plea of duress the threat relied on must be to cause death or grievous bodily harm;

(3)       The threat must be directed against the defendant or his immediate family or someone close to him;

(4)       The relevant tests pertaining to duress have been largely stated objectively and not with reference to the defendant’s subjective perceptions, that is to say, the defendant’s belief in the efficacy of the threat must be reasonable as well as genuine objectively;

(5)       The defence of duress is available only where the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied upon;

(6)       The threat must be one that the defendant still could not avoid in spite of him having taken evasive actions reasonably; and

(7)       The defendant may not rely on duress to which he has voluntarily laid himself open.”

43.We must emphasize that if duress is advanced as a defence to any charges, it must be strictly controlled lest the abuse of it would be giving an excuse to rationalize the criminal conduct of the defendant and exonerate him.

44.Looking from an objective point of view, even if Ng Fei-tat had actually threatened the applicant that her home would be splashed with red paint or she would be assaulted, objectively she should not have reasonably and genuinely believed in the efficacy of Ng Fei-tat’s threat. And as rightly pointed out by the trial judge, the applicant had much opportunity to seek help from her family, friends or even the police. Therefore, the threat was not one that the applicant still could not avoid in spite of her having taken evasive actions reasonably.

45.We agree with the verdict reached by the trial judge. The defence of duress is not available in this case. The applicant cannot avail herself of it to secure an acquittal.

46.We do not find the conviction of the applicant unsafe in any respect. In consideration of the background and the relevant issues in this case, the other criticisms that Mr. Chow levelled at the approach adopted by the trial judge in dealing with the case are not well-founded either. We dismiss the application for leave to appeal.

Mr. Peter Chow, instructed by Messrs. David Hui & Co., assigned by the Director of Legal Aid, for the Applicant.

Mr. David Leung, Ag. SADPP of the Department of Justice, for the Respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister.