Liu Lung-pui and Others v. The Queen
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CACC000957/1981 Section 42 Offences Against the Person Ordinance - abduction of a child of 3 1/2 years of age for the purpose of ransom - contention for appellants that the section could not apply because the child was too young to give or withhold consent to the act and that his foster parents were disentitled to dissent on his behalf because the child was not the subject of any form of guardianship known to the law - contention rejected - abduction would be unlawful in absence of positive assent on part of de facto guardians of child
BETWEEN
________ Coram: McMullin, V.-P., Li and Silke, JJ.A. Date: 20 May 1982 ___________ JUDGMENT ___________ McMullin, V.-P. : 1. The appellants were convicted upon an indictment containing four counts. The first was a count of conspiracy which was not pursued at the trial. There were originally four defendants before the court. The second count was robbery and it involved only the first appellant and the fourth defendant. The remaining two counts were taken under section 42 of the Offences Against the Person Ordinance. 2. The three appellants are charged in count three with the forcible abduction of a 3½-year-old boy called CHAN Hung-cheong with intent to procure a ransom for his liberation. 3. In count four they are charged with detention of the same boy for the same purpose. 4. Before the commencement of the trial proper, the fourth defendant KO Loi-fat pleaded guilty to the three subsisting charges. The second and third appellants were acquitted of robbery upon the direction of the judge. On conviction under section 42 the second appellant received a sentence of 12 years and the third appellant of 10 years on each count, the sentences to be concurrent. 5. There is only one point of importance in the appeal and it relates only to the section 42 offences. 6. So far as the robbery is concerned, Mr. Sedgwick, who appears with Miss Ester Toh for the first appellant, initially advised the court that counsel had been unable to suggest any good ground of appeal and there are no formal grounds signed by counsel before us. There are grounds prepared by the defendant or by someone at his request which we have considered but we have found no substance in them. 7. Somewhat belatedly Mr. Sedgwick asked to be allowed to prefer, on the first appellant s behalf, a single ground in relation to the robbery charge. We permitted him to do so. He then pointed out that the trial judge in dealing with the alibi defence of the first appellant had omitted the usual warning to the jury that even if they rejected the alibi evidence as false, they should not infer solely from that that the accused was guilty but must go on to consider the evidence against him as a whole. That is so but in view of the nature of the evidence as a whole relating to all the charges, I do not think that the omission would materially have affected the conclusion to which the jury came upon that count. 8. The principal point taken upon the appeal is one which Mr. Sedgwick frankly admits has no moral merits whatsoever. 9. The case for the Crown was that the four defendants had abducted and detained the child CHAN Hung-cheong pursuant to a plan agreed between them all beforehand. It was not in dispute that about 9.00 p.m. on the 28th of October 1980 an elderly woman CHAN Ma-shui was in charge of this little boy and her 9-year-old granddaughter. When the three of them were about to enter the flat where the children lived on the fifth floor of Hong Kong Mansion in Yee Wu Street two men overpowered them and bundled them into the flat where the old lady and the girl were tied up. The flat was ransacked and some valuables were taken and the little boy was carried off by the two men. Thereafter there were prolonged and complicated negotiations with his abductors as a result of which a sum of $310,000 was paid across to secure his release. He was eventually recovered on the 12th of November. The evidence against each appellant consisted principally of confessional statements made after caution. 10. CHAN Ma-shui is the mother of CHAN Kwai-ching who is the father of the 9-year-old girl CHAN Kit-man. Mr. Chan and his mother regarded the abducted boy CHAN Hung-cheong as the son of the family. It is, however, the relationship between Mr. Chan and the boy which affords the only ground of appeal which is alleged to warrant the upsetting of the convictions. The boy is not the natural son of Mr. Chan. The identities of the natural parents are not known or at any rate were not disclosed in the course of the evidence. It appears that Mr. Chan's mother was anxious that he should have a son and she made an arrangement with the mother of this boy before the child was born to take the child into the Chan family and have him reared as the son of Mr. Chan. The boy has in every respect been treated as such since his birth. 11. It is common ground that no money passed in this transaction and that it was not tainted with any element of criminality or even of illegality except, perhaps, to the extent that in having the child's birth registered in the name Chan with the relevant authorities Mr. Chan may not have disclosed that it was not his natural child. 12. It is also common ground that this child has never been made the subject of any proceedings for adoption recognized by the law. 13. Section 42 of the Offences Against the Person Ordinance reads thus :-
14. Mr. Sedgwick relies upon a strict observance of the words used in the section. If the section had said "without his...... consent" instead of "against his .....will", the point he makes would not be available to him. It is unnecessary to refer to the several authorities urged upon us, as upon the court below, to support that distinction. It is clear that some colour is lent to the reality of the distinction by expressions which may be found in some of the older cases, principally cases dealing with sexual assaults on females. For practical purposes, however, it cannot be said to have survived the 19th century. More recent authority does not support it. 15. Where the object of such an assault is incapable, through drink, drugs, mental incapacity or the like, at the time of the offence, of giving or withholding consent the offence, whether indecent assault or rape, will be taken to have been proved by proving the act alleged against the defendant even in the absence of such resistance as would indicate an exercise of will in refusing consent. In R. v. Dee(1), Chief Baron Palles having noted that the old indictments for rape described the act as being against the will of the victim rather than without her consent (whereas the crime was described in the statute of Westminster 2c 34 as the ravishing of a woman without her consent) nevertheless found no discordance between these two expressions. At page 589 he says:
16. If that is a proper statement of the law and, with respect, we think that it is, it would of itself dispose of this appeal. 17. Mr. Sedgwick's proposition is that since a child of very tender years is incapable of an act of will whether by way of assent or dissent, then, since there was no legal guardian capable of exercising the child's will on his behalf, the Crown had not proved, indeed could not prove, that the act was against the will of the child. 18. There is, no doubt, that a child of 3 1/2 years is incapable of an act of will recognizable before the law; but a child, even a child of the tenderest years, is neither res nullius nor yet to be classed with animals feras naturae subject to appropriation at whim and without penal consequence. An offence under section 42 is an aggravated form of false imprisonment which itself is an aggravated form of assault. In The Queen v. Lock(2) upon which Mr. Cagney relies the defendant was charged with indecent assaults upon two 8-year-old boys, the jury, following the direction given to them by the judge, found him guilty on the basis that the boys had merely submitted to the act not knowing its nature. At Page 10 Grove, J., says:
19. Effectively this was the argument of Mr. Cagney for the Crown. Initially he put it that although a child of tender years and below the age of discretion could not exercise an act of will by way of assent, such a child could, nevertheless, dissent from what was being done. In that form the argument would seem to be questionable but later counsel put it that where force is used in the abduction of a child, the law will take it to have been done without consent. That is nearer to the mark. Any form of assault is criminal if there has been no consent on the part of the person assaulted. Consent may, of course, be either express or else implied (as in the case of sports such as boxing). Outside the exigencies of self-defence, there is no such thing known to the law as an assault which is legitimate although done without consent. In a case such as the present common sense no less than societal expediency obliges us to say that the removal of a child by any person not entitled to its custody must, in the absence of any demonstrated consent of any kind, be held to be against the will of the child. 20. The Irish case of Edge(3) upon which Mr. Sedgwick reties was of little material assistance in the circumstances of the present case. A boy of 14 willingly left his school, where he was in the lawful custody of the headmaster, and went to reside with the defendant voluntarily. The parents objected and the defendant was charged with kidnapping. The Supreme Court reversing the Court of Criminal Appeal held that a boy of 14 years was at the age of discretion and thus had the mental capacity to assent or dissent for himself. Mr. Sedgwick relies upon this authority principally for an observation of the sole dissenting judge, Murnaghan, J., who at page 132 said:
21. The point counsel makes in the present case is, of course, that the de facto guardianship of Mr. Chan was not one known to the law. That might well be a pertinent observation in relation to some different form of proceedings but for the purposes of this criminal statute, it is simply not enough to carry counsel home. 22. Another way of looking at the matter - and it appears to be the way in which the trial judge dealt with the submission in the lower court - is to ask whether in any case there was a form of guardianship in subsistence sufficient to be relevant to the question of consent. I think that there was. Although the identities of the parents of his child remain mysterious, the circumstances of Mr. Chan's acquiring him clearly indicate a full delegation by the natural mother of her parental rights and duties to Mr. Chan. It matters not that he has taken no steps, as perhaps he should have done, to establish his relationship to the boy upon a firmer legal footing. In the absence of any evidence to show that his custody of the child was limited or temporary he must be held, for the purposes of the criminal law, to be as fully vested with guardianship of the infant as would the natural parents have been if they had not parted with him. His dissent to the taking of the child is amply demonstrated in the first instance by his mother's experience and thereafter by the whole course of conduct which resulted in the return of the child to his household. 23. The only other point taken upon the appeal turned upon the admission of certain evidence which was said to be hearsay. It relates to the case of the 2nd appellant only. Although in his confessional statement he had admitted to an active part in the conspiracy, in evidence he alleged that he had merely been assisting the Chan family to recover the boy. Part of his evidence was concerned with the taking of the ransom money in a train to Shaun in the course of which journey he, at the direction of the kidnappers, threw the bag containing the money out of the carriage window at a certain bridge. He alleged that this had been done on the 9th of November. The Crown sought to introduce rebuttal evidence to show that the kidnappers were still treating with the Chan family on the 10th of November. If accepted that evidence would have tended to show that the second appellant was lying. The prosecutor sought to show that a certain taped telephone conversation had taken place on the 10th of November. A sergeant Wan was in charge of the taping of that conversation. He telephoned his superior officer Mr. Burbidge-King shortly after the taping of the conversation to tell him that he had taped a conversation with the abductor and also to give him the substance of it. Sergeant Wan was able to tell the court the date upon which he had telephoned Mr. Burbidge-King but he was uncertain as to the precise nature of the information he had passed on to his superior. The prosecutor was permitted to call Mr. Burbidge-King to tell the court of the phone conversation between himself and the Sergeant which he had noted in a diary kept in chronological order and which related to the whole sequence of events in the course of the police investigation of the offence. 24. The mere fact of there having been a phone conversation between the two officers upon the 10th of November would have been of no assistance to the Crown unless the contents of the communication by Sergeant Wan to Mr. Burbidge-King were also admitted in evidence. Mr Burbidge-King spoke from the note which he had made at the time when the sergeant spoke to him and he was able to say that the date was the 10th of November. He was permitted also to tell the court the substance of what he had recorded in the diary. 25. The judge admitted this evidence on the basis that it went to prove the fact of the phone conversation. No doubt that is so but the fact of there having been a phone conversation was of no significance unless the substance of what was said could also be produced. 26. These facts are closely similar to those confronting the Court of Appeal in the case of McLean(4) in which such evidence was said to have been inadmissible as hearsay. Mr. Cagney has not sought to distinguish the two cases but he asked us to say that McLean(4) should not be followed because, delivering the judgment of the Court, Edmund Davies, L.J., professed to be following Jones v. Metcalfe(5) which counsel contends did not support him. I cannot agree. The facts were not the same as those in McLean(4) but the principle applied was essentially no different. In both cases as in this present case, a witness purported to give evidence of facts which he had not himself witnessed by reference to a note made by him at the time those facts were reported to him by the person who had been the immediate witness of them and who was not called to give evidence. 27. This was clearly hearsay evidence and should not have been admitted. It formed, however, a very small and peripheral part of the prosecution case which rested, as I have noted, principally upon the confessional statements of the appellants. In the circumstances I have no hesitation in applying the proviso. 28. I would dismiss the appeals of all three appellants. Representation: A.W. Sedgwick & Miss E. Toh (D.L.A.) assigned for 1st and 3rd appellants A.W. Sedgwick (Ip, Ku & Stoppa) for 2nd appellant J. Cagney for respondent/Crown Li, J.A.: 29. I have the benefit of reading the judgment of my lord the president of the court with which I am in entire agreement. 30. Perhaps I should add that at one stage of the hearing Counsel for the Crown appeared to contend, if I understood him correctly, that the sheer use of force would obviate the necessity of proving that the taking of the boy was against his will. Having regard to the penal nature of the provisions in section 42 I prefer to give them a strict construction. 31. Mr. Sedgwich conceded however that for a boy below the age of discretion the will of his guardian would be substituted for that of his own. Having regard to the circumstances in which the boy was accepted into the Chan family I am driven to the irresistable conclusion that Mr. and Mrs. Chan were the boy's guardian and that the forcible taking and detaining the boy at the material time was against their will. 32. I shall not repeat at length the same approach and reasoning so clearly set out by my lord Mr. McMullin, J. but to express my concurrence. Accordingly I also dismiss the appeal of all the appellants.
(1) (1884) 15 Cox C.C. 579 (2) (1872) L.R. 2CCR (3) (1943) I.R. 115 (4) (1968) 52 Cri. App. R. 80 (5) (1967) 3 All E.R. 205 Silke J.A. : 33. On the 28th October 1980 a robbery took place in a flat in Causeway Bay. Certain property of an elderly lady Madam Chan Ma Shui was taken, people were tied up and the premises ransacked. 34. Present at the time were a 3 1/2 year old boy and a nine year old girl. They had come home with the elderly lady - whom I shall call "the grandmother" - from a restaurant run by Mr. Chan Kwai Ching - who I shall refer to as "the father" - and the family. 35. Despite the pleas of the grandmother the boy was taken away by the robbers. He was detained from then until his release on the 12th of November. Demands starting at $1 m dollars were made for his liberation and despite the fact that the police were involved at a very early stage negotiations in respect of the sum demanded took place without their being fully informed. A substantial payment was made. 36. Four defendants went on trial : the first Liu Lung Pui, the second Iu Shek On, the third Chan Wing Kee and the fourth Ko Loi Fat stood charged with robbery, the second count in the indictment : with the forcible taking away of the boy, the third count, and with the forcible detention of the boy, the fourth count. 37. The first count, that of conspiracy to take away and detain the boy was not proceeded with. 38. The first appellant was convicted of the robbery and the forcible taking and the detaining of the boy : he received sentences of six years on the robbery count and ten years on each of the other two counts all to run concurrently. 39. The second appellant was acquitted by direction on the robbery count but was convicted on each of the other two counts and received concurrent sentences of twelve years on each of them. 40. The third appellant was also acquitted by direction on the robbery count but convicted on each of the two other counts and he received concurrent sentences of ten years on each of them. 41. The fourth defendant pleaded guilty -after a lengthy voir dire - to and was consequently convicted of the robbery count and the two other counts, The first, second and third appellants were granted leave to appeal against their convictions by the single Judge and they now appear before us consequent upon that leave. 42. The first and third appellants were refused leave to appeal against the sentences passed upon them and they have not sought to renew their applications. 43. The second appellant was granted leave to appeal against the sentences passed upon him. That appeal has still to he dealt with. 44. Very briefly, the brevity is for reasons that will become apparent, the evidence against the appellants was primarily their cautioned statement, the identification somewhat watered down in evidence of the first appellant by the "grandmother" and the girl as a participant in the robbery, the voice identification of the third appellant as a demander of ransom and the general part played by the second appellant, a relative of "the father's", in the negotiations and in his receipt of part of the ransom money. 45. There were no grounds of appeal apart from the alibi direction point dealt with by my Lord argued on behalf of the first appellant in respect of the robbery count, Counsel feeling, and quite rightly so, that there were none which they could properly advance other than that last minute alibi matter. However the appellant had himself filed home made ground which we had read. We allowed him to address us in this part of the appeal. He did not desire to advance any argument to us and we found nothing in his home made grounds to cause us, in the light of the evidence against him and in view of the general adequacy of the trial Judge's summing-up, to cause us any anxiety. The appeal of the first appellant against his conviction on the robbery count is therefore dismissed. 46. There is but one point taken on behalf of all the appellants in respect of the third and fourth counts. A further point, with which I shall deal later, is taken on behalf of the second appellant relating to the admission of that which is said to he hearsay evidence. 47. The wording of Section 42 of the Offences against the Person Ordinance is of moment:
48. If the jury accepted the evidence presented to them, as they were entitled to do, then they could find the force, the taking away and the detention and the intent - being that of procuring a ransom - proved as against all the appellants. 49. The point of the appeal turns on the phrase "against his... will" appearing in the section. It is Mr. Sedgwick's contention, and he is under no illusion that the point is a technical one, that a boy of 3½ has no will in law : that the use of the expression indicated means that the taking away and the detaining must be against a person who has a will : that the only person who can exercise the will of a toddling child is a parent, a lawful guardian or a person having the lawful custody or control of that child - with stress being laid on the word "lawful'- that here in the unusual circumstances which pertained to the parentage of the boy there was no such evidence nor in relation to the Chans could there be. Therefore the Crown has failed to prove all the element of the two charges. 50. The unusual circumstances were these. Arrangements were made by "the grandmother" and with the agreement of "the father" to acquire the boy, if I may use that expression, while he was an venue sa mere. Upon his birth he was handed over to the Chans and Mr. Chan saw fit to have himself registered as the father at the time of registration of the birth. What those actual arrangements were we do not know but there was no legal adoption of the boy nor was any form of formal documentation entered into. 51. To support his contention that there must be a person lawfully - in its fullest sense - in control of a child of this age so as to be capable of exercising the will of that child Mr. Sedgwick relies heavily on a case dealt with by the Irish supreme Court The People v. Edge(1) 52. He accepts that Edge, on its facts, is far different from this instant case but seeks to pray in aid some of the dicta emerging from the separate judgments therein. 53. We saw little moment in a semantic discussion as to the difference, if any, between "against his will" and "against his consent" - and at our indication Mr. Sedgwick desisted. 54. Edge concerned a 14½ year old boy who went with the appellant without either force or fraud and consenting. The charge upon which Edge was convicted at trial was one of kidnapping at common law and in its particulars it alleged that Edge "unlawfully carried away and secreted" the boy against the will of his lawful guardian. A large part of the separate and heavily researched judgments consisted of an historical analysis of the offence described as "kidnapping" and as to the effect the boy's consent to his going with Edge had upon the charge as laid. 55. The Court was quite clear that had force been used then false imprisonment would have been made out as against Edge. Geoghegan J. at p.138 said:
56. And Black J. at p.148 said:
57. There follows then a passage upon which Mr. Sedgwick relies for the proposition that a child below the age of discretion does not have a will or the capacity to consent. 58. For the purposes of his submission, for myself, I am prepared to accept that contention. Mr. Cagney would have it that in the case of a boy of the age of the boy here the words in Section 42"against his ... will" are mere surplusage and that the law seeks to protect young children by implying that a taking such as this - a criminal enterprise without any claim of right whatsoever - is against the will of the child. He may be right but that is not quite the submission of Mr. Sedgwick. 59. It should be noted that the charge here is not Child Stealing as defined in Section 43 of the Offences against the Person Ordinance and which has its provenance in the Offences against the Person Act of 1861 section 56. The charge here appears to be one peculiar to this jurisdiction. 60. Were it a Section 43 charge then Mr. Sedgwick's submission might have some point for that section speaks of the taking being against the will of a parent or lawful guardian - the intent of course being different. 61. Even then however I would be disinclined to construe the word "lawful" is quite so strict a sense as Mr. Sedgwick would have it. 62. If it is correct that the consent or will of a child below the age of discretion may be, and here must be, exercised by a person in lawful authority over him - and again for the purpose of the submission I would accept this to be so - Mr. Char and his wife were the only persons capable of exercising that consent or will. Whether this be by virtue of a guardianship of nuture or by their being in loco parentis or by a form of delegation from the natural parents matters not. The reality of the situation is that they were the people having proper custody of this child. They had looked after him since birth, he bore their name they evinced all the anxiety that natural parents would feel upon their being deprived of his company in this callous fashion. They treated him to all intents and purposes as their natural son. They were in a position to exercise his will. 63. There was clearly false imprisonment here. The form that took, and the reason therefor, is an aggravation of that criminal act. 64. I would hold the Crown to have established the criminal liability of the appellants and would hold the main ground to have failed. 65. As to the only other point raised - in respect of the second appellant. This relates to evidence adduced from Chief Inspector Burbidge-King of the date upon which he received a phone call from a Sgt. Wan and of his note in an occurrence book of the contents of that phone call. 66. While the boy was missing phone calls were monitored. It became a matter of some slight importance as to whether or not Sgt. Wan had received a particular phone call on the 9th or the 10th of November. The importance was in relation to an alibi raised by the second appellant. The Sgt. was confused not as to the date but as to the particulars of the call. He had told Mr. Burbidge-King at the time but the note made in the occurrence book was not made in his presence nor was it contemporaneously checked by him or initialled by him. It could therefore not be used to refresh his memory. 67. When Mr. Burbidge-King was called in rebuttal it would have been perfectly proper for him to have, as he in fact did, relate the date and time of the call. But that would not have been of great assistance to the Crown. In answer to questions he read out the contents of his occurrence book. Effectively "refreshing the memory" of Sgt. Wan by the side door, and identifying that which Sgt. Wan could not : the contents of the particular phone call. 68. In my view the latter part of Mr. Burbidge-King's evidence was hearsay. Mr. Sedwick lays no great stress on this ground of appeal and I do not think any miscarriage of justice to have occurred by the admission of this evidence. 69. That ground also fails and I would dismiss the appeals of all three appellants against their convictions. (1) 1943 I.R. 112 Representation: A.W. Sedgwick Esq. and Miss E. Toh (D.L.A.) for 1st and 3rd appellants. A.W. Sedgwick Esq. (Ip, Ku & Stopper) for 2nd appellant. J. Cagney Esq. for Crown/Respondent. |