HKSAR v. Lin Ching Chung

CACC 461/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 461 OF 2010

(ON APPEAL FROM DCCC NO. 1386 of 2009)

____________

BETWEEN

____________

Before: Hon Cheung JA, Wright and Macrae JJ in Court

Date of Hearing and Judgment: 15 July 2011

Date of Reasons for Judgment: 28 July 2011

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Macrae J (giving the reasons for judgment of the Court):

1.On 26 November 2010, the applicant was convicted before HH Judge Tallentire in the District Court of one charge of conspiracy to falsely imprison and one charge of conspiracy to commit blackmail. He was sentenced to 9 months’ imprisonment concurrent on each charge. The applicant sought leave to appeal against conviction only and on 1 April 2011, his application for leave to appeal against conviction was refused by Hon Hartmann JA. He renewed his application for leave to appeal before us on 15 July 2011 and we dismissed his application, saying we would give our reasons in due course. This we now do.

2.The applicant initially asked us to adjourn the hearing so that he could find a lawyer to represent him.  However, we declined this invitation on the basis that not only has he completed his sentence since 25 May 2011 and had ample time to consult lawyers but he must have appreciated the importance of this hearing, his application for leave having already been refused by a single Judge on 1 April 2011.  Accordingly, we allowed him sufficient time to marshal his arguments and present submissions to us in person.  This he did.

3.The facts of the case are somewhat convoluted but essentially both charges concern the same victim, Mr Wong Kat-li (“PW1”), who between the evening of 21 September and the early hours of 22 September 2009 was falsely imprisoned by two groups of males and subjected to various assaults (Charge 1).  At the same time, the two groups who were each endeavouring to enforce a different debt, one of some $700,000, the other of $80,000, subjected the victim to unwarranted demands with menaces (Charge 2).  The applicant was part of the group demanding the smaller amount.  And although he was not directly concerned with the larger alleged debt and its recovery, or with physically assaulting PW1, it is necessary to deal with that matter because of the coincidence of presence and objective of the two groups on the night in question.  In outlining the somewhat confusing background and facts of the case, we are grateful to Mr Lui’s helpful summary of events in the Respondent’s written argument.

4.PW1, who was the only live witness called at trial, gave evidence that that he had, for a number of years prior to the offences, been engaged in recycling pinball machines from Japan.  A man called Wong Lai-kwan (“Ah Wong”) was his original business partner and they later began to operate in collaboration with Tse Hong-kuen (“Tse”).  Tse was responsible for providing capital to the business and profits were shared between PW1, Ah Wong and Tse.

5.In June 2009, PW1 came to know D1, who was a Taiwanese national.  D1 operated a company known as Mutsuwa or Luk Wo in Tin Shui Wai.  The business premises of Mutsuwa were the location to which PW1 was taken and where he was detained on the night of 21 September 2009.

6.At around the same time, PW1 was also introduced to the applicant (who was D2 at trial).  He later had meetings with D1 and the applicant at Mutsuwa.  He knew that the applicant was D1’s friend and interpreter and that the applicant helped D1 to import machines from Japan.  There were certain business dealings between PW1 and D1 which resulted in PW1 owing a debt of HK$80,000 to D1.  In July 2009, he signed an IOU in favour of D1 for HK$80,000, to be paid within a week, failing which there would be compensation of HK$10,000 to HK$20,000.  In the event PW1 was unable to repay and the debt remained outstanding as at 21 September 2009.

7.In the meantime, PW1 had become separately indebted to Tse in the approximate amount of HK$700,000.  A debt collector called Bun Chai called PW1 to chase for the money.  PW1 was, it seems, surprised that a debt collector had been engaged since he had never tried to avoid Tse or Ah Wong.  In September 2009, Bun Chai called PW1 and demanded that a reply be given to Tse within three days.  PW1 negotiated with Tse and Ah Wong but the matter remained unsettled.

8.The aforesaid matters led to the incident on 21 September 2009.  By then, the debts owed by PW1 to D1 and to Tse remained unsettled.

9.At around 4:00 p.m. that day, PW1 was intercepted by Bun Chai and another male person outside his residence.  They demanded payment on behalf of Tse.  PW1 was allowed to call Tse, who told him that the matter would be dealt with by Ah Wong.

10.At this juncture, Ah Wong arrived in his car together with another man.  Ah Wong’s group, which included Bun Chai and two other men, took hold of PW1 and drove him to Kam Tin and later a country park area in Tai Mo Shan.  PW1 was told to sign an IOU in favour of Tse for HK$700,000. Despite his initial refusal, PW1 subsequently agreed to do so after being assaulted by Bun Chai and others.  The signed IOU was taken by Ah Wong.

11.When they boarded Ah Wong’s car again, D1’s name was mentioned; in particular that D1 was willing to pay HK$10,000 for PW1 to be delivered to him.  PW1 was subsequently taken to a bus stop where PW1 saw D1, the applicant and two other male persons.  Ah Wong had a discussion with D1’s group for 2 to 3 minutes before Ah Wong announced that PW1 was to be taken to Mutsuwa (D1’s place of business).

12.Having arrived at Mutsuwa, PW1 saw D1, the applicant and two other males also arriving in a taxi.  PW1 was led into the premises of Mutsuwa and told by D1 to sign an IOU for HK$160,000.  D1 made the demand through the translation of others.  PW1 refused on the ground that he only owed D1 HK$80,000, whereupon Bun Chai and others in D1’s group began assaulting PW1.  Ah Wong later said “the boss” was outside whereupon Ah Wong, D1, the applicant and others left together for a meal, leaving PW1 to be guarded by the remaining men.

13.Upon their return after 9:00 p.m., PW1 was assaulted again.  He was also told to surrender money allegedly hidden at his residence, for which purpose he was instructed to telephone his elder daughter to open the front door.  This was confirmed by the evidence of PW1’s daughter, admitted pursuant to section 65b of the Criminal Procedure Ordinance, Cap. 221.  In the end, however, no money was found.

14.When, no money having been found, PW1 was about to be assaulted by Bun Chai again, D1 intervened.  PW1 begged the applicant to release him and to help him but the applicant said he should have paid the money to them a long time ago.  He also said his boss Tse was outside and he would try to talk to him.  The applicant went out, followed by Ah Wong, Bun Chai and two other males.

15.Later the applicant and Ah Wong returned.  Ah Wong then scolded and assaulted PW1 in the presence of D1 and the applicant.

16.PW1 was then locked by Ah Wong in a container but he was subsequently released by D1, who again asked him about the debt.  It was at this point that PW1 signed an IOU for HK$160,000, to be paid by six instalments of HK$30,000 each.  As instructed by D1, the IOU was made out in favour of the applicant.  The signed IOU was then handed over to D1.

17.Ultimately, PW1 managed to get a message to his daughter, who called the police.  The police arrived at the scene at around 3:25 a.m. on 22 September 2009, whereupon D1 was arrested but the applicant managed to make his escape.  He was not arrested until his return to Hong Kong on 3 October 2009.  PW1 positively identified the applicant in a subsequent identification parade.

18.PW1 agreed that the assaults were launched by Ah Wong’s group and that neither D1 nor D2 physically took part in those assaults.  As a result of the assaults, he sustained the injuries set out in a medical report admitted by agreement.

19.Neither the applicant nor his co-accused D1 gave evidence at the trial.  One of the consequences of that decision was that in advancing his arguments before us the applicant effectively gave the account he would have given if he had given evidence.  Whilst permitting the applicant, as an unrepresented party, some latitude in putting forward his submissions in this way, it quickly became clear that no issue of law was involved nor was there any significant dispute as to the facts.  What the applicant took issue with were the inferences drawn by the trial judge from those facts.

20.In particular, the applicant did not dispute before us, or at trial, that he had been to the bus stop and then gone on to Mutsuwa in the evening of 21 September 2009.  Nor did he dispute his presence when various demands for money were made and when PW1 was assaulted.  The only significant matter he did dispute was knowledge of, or presence at, the making and signing of an IOU in his favour in the sum of HK$160,000.  This issue was in fact the subject of cross-examination by the applicant’s counsel at trial.  PW1 ultimately accepted that the applicant had not been present when the document was signed: however, he insisted the applicant was present when it was written.

21.Given the lack of dispute on the essentials of what took place on the night in question, it was a matter for the trial judge what inferences he drew from the facts as he found them to be, bearing in mind the criticisms which could validly be levelled against PW1 as a witness; many of which the trial judge accepted.

22.It was clear that the trial judge examined PW1’s evidence with great care and in considerable detail.  Ultimately he found that when, having been seized and beaten by the principal group, PW1 was driven to a bus stop where the applicant, D1 and two other males were waiting, this must have been by prior arrangement and it would defy common sense to find otherwise.  Thereafter he found that when PW1 was taken to Mutsuwa and detained against his will whilst various demands were made of him accompanied by assaults, the applicant was present at all material events, with the exception of the signing of the IOU for HK$160,000.  Again, he considered that the only possible inference to be drawn from the evidence was that the applicant was party to an agreement that PW1 should be taken to Mutsuwa for the purpose of detention and enforcement of the alleged debts by the means employed.

23.In our judgment the inferences which flowed from the facts as the trial judge found them to be were irresistible.  Having chosen not to give evidence, the applicant cannot now complain if proper inferences were drawn from the evidence which was available and accepted by the trial judge.

24.We considered that there was no merit whatsoever in this application, which we accordingly dismissed.

Mr Ira Lui, SPP of the Department of Justice, for the Respondent

The applicant in person