HKSAR v. Kwok Ping Kan

CACC 119/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 2011

(ON APPEAL FROM HCCC NO. 239 OF 2010)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

Hon Stock VP (giving the judgment of the Court):

1.The applicant was indicted upon an indictment containing 3 counts. We need only be concerned with the first because the second and third were alternatives. The first count alleged that he and another, Chan, between 22 September 2009 and 17 December 2009 conspired to make an unwarranted demand of 400 million Hong Kong dollars from Kwok Lee Tin Wing with menaces.

2.The applicant was tried in March 2011 before Line J and a jury and was convicted on the first count and sentenced to 10 years’ imprisonment.  He now seeks leave to appeal the conviction.  Chan’s appeal was heard in June 2012 and was dismissed by a differently constituted court: see HKSAR v Chan Wai Hang [2012] 3 HKLRD 726.

3.It is convenient to take the facts of the case from that judgment.  References in that judgment to the co-accused are references to this applicant:

“4. In the late 1990s, a man by the name of Walter Kwok, one of the members of a Hong Kong family known to possess great affluence, was kidnapped by a criminal gang. His kidnappers originally demanded a ransom of $1 billion but after negotiations reduced the demand to the sum of $600 million. That sum was paid and Walter Kwok was released. The kidnapping received substantial media coverage.

5. It goes without saying that the kidnapping must have left the deepest emotional scars on the kidnap victim himself and on members of his family.

6. More than 10 years later, the applicant and his co-accused were convicted of entering into a criminal scheme to profit from that earlier event.

7. In or about September 2009, communications were commenced with Walter Kwok’s family, communications designed to remind the family of the earlier kidnapping and the trauma that it must have induced, communications designed also to remind the family of the fact that the original ransom demand of $1 billion had been compromised, being reduced by $400 million.

8. Essential to the scheme was the assertion that the compromised figure of $400 million was still due and owing, the clear implication being that, unless this sum was paid, there would be a further kidnapping of Walter Kwok or some other member of the family.

9. Three demand letters were sent to individual members of the Kwok family including Walter Kwok himself. These were followed by a number of telephone demands. The scheme was clearly planned to build pressure, doing so over a period of three months.

10. The first letter sent to the family contained photographs designed to cause distress. One of the photographs depicted a masked man with bombs strapped to his body. The leader of the criminal gang that had kidnapped Walter Kwok was believed to have strapped bombs to his body in like fashion.

11. Integral to the scheme was the requirement to place Walter Kwok and his family members under such fear at the prospect of having to live through an outrage similar to, or worse than, the original kidnapping that they would submit to any demand. It would not be an exaggeration to say that the scheme was designed to terrorise Walter Kwok and his family.

12. In furtherance of the scheme, in the course of a telephone call, a demand was made for a show of sincerity. That show of sincerity was to be constituted by a payment of 20% of the $400 million outstanding: a sum of $80 million.

13. The issue at trial was not whether Walter Kwok and his family members had been subjected to the blackmail threats but whether the applicant and his co-accused, together and/or with others, had conspired to perpetrate the scheme.

14.  It should be said that there was no evidence that the applicant or his co-accused were ever members of the original kidnap gang or in any way associated with the people who made up that gang.  It was however the prosecution case that, by creating the impression that there was such an association, the applicant and his co-accused were able to exploit the reputation for ruthless violence earned by the original gang.”

4.The case against Chan was correctly said by the trial judge to be constituted by a number of strands including evidence that it was Chan who spoke to an undercover officer who posed on 16 December 2009 as Madam Kwok’s personal assistant and in the course of which conversation demands with menaces were made; that the stamp on a letter received by her brother on 12 October 2009 – one of the blackmail letters – came from Chan’s home; DNA evidence linked Chan to a telephone from which blackmail demands were made; and Chan’s fingerprint was detected on a notebook at his home which contained the names and numbers corresponding to magazine articles which mentioned or featured the Kwok family. There was other evidence against him upon which the prosecution placed reliance the details of which it is not necessary here to recite; but it included evidence of the use of Chan’s Octopus card to travel to Repulse Bay for the purpose, it was alleged, of a reconnaissance to be made of the Kwok household in that neighbourhood.

5.The case against this applicant was evidence of his frequent association with Chan at the material times and in particular that when blackmail telephone calls were made the applicant was with Chan, together with evidence by an officer of gestures passing between them at the time of the first such telephone call indicating, it was said, joint knowledge of what was going on; use of the applicant’s Octopus card for the same trip to Repulse Bay; and, further, lies told by the applicant to the police in the course of interviews after his arrest – lies which were said not to prove guilt but to support the prosecution case.

6.Neither the applicant nor Chan testified in their own defence but the applicant called three character witnesses including one of his sons.  In 1995 the applicant had been convicted of an offence of attempting dishonestly to abstract electricity in respect of which he was fined $1,000; but the defence were content to adduce evidence of this, suggesting that nonetheless the applicant was someone of general good character.

7.The only ground of appeal now pursued relates to questions put by prosecuting counsel in relation to the applicant’s character.  The questions were put by Mr Callaghan for the prosecution at the very outset of cross-examination of the son.  Having established the witness’s age, the cross- examination went as follows:

“Q. Were you aware that your father was arrested in relation to a kidnapping investigation back in 1991?

….

A. 1991? No idea.

Q. You don’t know about that.

A. No idea.

Q. You would have only been about nine years old then, wouldn’t you.

A. Yes.

Q. Do you have an elder brother?

A. Yes.

Q. Your elder brother was arrested with your father, was he not?

A. If you’re talking about 1991, I don’t think so. Even if that’s the case, I had no idea because I was too young.

Q. Well then, what about 2001. Do you remember 2001 and your father being arrested?

A. It seems that that is the case in that year but I can’t be sure whether it’s 2001 or not.

Q. And was your brother involved?

A. Yes, my brother was involved.

Q. They weren’t charged, were they?

A. No. On that occasion I just recall that police officer requested somebody to go to the station for making statement.

Q.  Yes. Thank you very much.”

8.Re-examination did not touch upon this suggested arrest and went as follows:

“Q. Mr Kwok, do you know that the only criminal conviction that your father had ever had was one of abstracting electricity?

A. Yes.

Q. While he was doing his full-time work as a construction worker.

A. Yes.

Q. And he was only fined $1,000.

A. I have no idea.

Q.  Thank you.”

9.What induced prosecuting counsel to ask the questions he asked we cannot imagine; still less that he did so without seeking leave to pursue the inquiry and without giving any notice of his intention to do so.  The fact of the arrests proved absolutely nothing and even had there been a conviction, evidence of involvement in a kidnapping some years back raised the obvious question of prejudice as against probative value.  The questions should never have been put.

10.That said, the judge dealt with the matter wisely, in our judgment, first by ignoring it at that stage; and secondly by the manner in which he dealt with it in his summing-up.

11.Before summing-up, the judge asked counsel what they wanted him to say to the jury in his summing-up about this applicant’s character, the judge commenting in the course of discussion with counsel that: “I didn’t say anything at the time because I thought the better course was just to let it run and then discuss it now.  But I shall give them a strong warning not to let that colour.”  He specifically asked counsel then acting for this applicant whether he would like him to deal with the matter and counsel intimated that he would like the judge to provide a direction that protected his client from any use of the suggestions made by prosecuting counsel.

12.In their closing speeches, neither counsel for the prosecution nor for this applicant made any reference to the suggested earlier arrests.  The judge dealt with the matter in his summing-up in the following way:

“ The 2nd defendant did call three witnesses: his son, a friend and a previous employer. The evidence established that the son judged his father to have been a good one, that the second, a good family man too, that the 2nd defendant was semi-retired in 2009 but did odd jobs of a construction nature, that he had been a good worker for his employer, that he enjoyed playing chess, that he enjoyed studying racing form and gambling, reasonably, but he was under no financial pressure in 2009. He said of his father that he had one conviction for extracting electricity.

Now, a clear criminal record, or a criminal record with only a conviction for extracting electricity on it, cannot of itself provide a defence but it can help a defendant in two ways. Firstly, it may mean he is less likely than otherwise might be the case to have committed the crime alleged against him now. Secondly, it can support a defendant’s credibility. Credibility simply relates to the confidence, or lack of it, that you may have in his truthfulness. These are matters you can have regard to in the defendant’s favour. It is for you to decide what weight, if any, you should give to them in this case.

The consideration of his credibility arises in the context of what he said to the police in his interviews, especially his denial of involvement in blackmail. His character with one conviction for extracting electricity is something to consider when judging the truthfulness of his denial, but I point out also would be the fact that he told lies in the interview if you found that to be the case.

As regards the conviction for extracting electricity, the son, in fact, gave no further detail about it. Mr Ho, in his speech to you, said it occurred in 1995 and the fine was only $1,000. I have told you what he says in his speech is not evidence, but before you came into court I checked with Mr Callaghan and he admits that is true, so there is a further admitted fact for you to take into account now. You do not have to put it in writing. You will remember it, and it is this: the extraction of the electricity conviction only attracted a fine for $1,000 and it occurred in 1995.

Now, because the 2nd defendant called evidence about his character it allowed counsel for the prosecution to ask about matters which may tend to suggest a less good character. Thus it was that the son was asked if he had any knowledge of the arrest of his father back in 1991 for kidnapping. The answer from the witness was that he had no idea.

There is, thus, no evidence at all that the 2nd defendant was arrested for such an offence. You must not think that the suggestion is equivalent to evidence of it. I want to give you a very clear and firm direction in this regard. You must not take that suggestion and use it in any way against the 2nd defendant. To do so would be wholly wrong and unfair. Anyone can ask a witness a question. It is the answer that matters. There is no evidence of there being any arrest, let alone for kidnapping, and even if there had been such an arrest, all that demonstrates is suspicion by a policeman, and it does not even go that far in this case. There is no evidence of such an arrest.

There was also a question about whether or not the 2nd defendant had been arrested along with his eldest son in 2001. The witness merely related that he knew that his father and his elder brother had gone to the police station at the request of the police to give a statement. There is, thus, no evidence of any arrest in 2001 at all. Again, I direct you not to use the suggestion of arrest in 2001 in any way against the 2nd defendant.

Now, before leaving this topic I wish to repeat to you that there is nothing at all in the evidence in this case to link the 2nd defendant to any kidnapping of any kind back in 1991.  I repeat that you must not take the question asked by counsel for the prosecution to indicate anything to the contrary and I repeat that it would be wrong and unfair of you to do so.  I have every confidence in you, as jurors, in not following a course that I described to you as being wrong and unfair. I see you nod, thank you.”

13.We had thought that it was to be submitted on behalf of this applicant that no direction was capable of curing the prejudice created by the impugned questioning but the graveman of the submissions is that once the questions (or even the first question) were asked the judge should then and there have stopped the questioning and told the jury to ignore the suggestions put.

14.The impact of an impermissible question or questions in a criminal trial will always be a context and case sensitive issue.  It is our judgment in this particular case that such dangers as were created by the questioning were well cured by the manner in which the judge handled it.  The judge had a choice of dealing with the issue then and there, when it was raised by prosecuting counsel, or of letting it pass and dealing with it later in his summing-up.  This is a question of judgment at the material time and sometimes judges, quite understandably, take the view that a fuss at the time creates more harm than is cured.  The judge in this particular case took a view which in our judgment was an acceptable course for him to take: the matter was allowed to pass without fuss at the time of the questions and the summing-up in its material part was not some mere mantra to ignore prejudicial evidence but, instead, not only gave strong and clear directions to ignore the suggestion of a previous arrest or arrests but explained in terms why it would be improper to place any reliance whatsoever upon the suggestions.  The issue was dealt with sensibly and such danger as had been created was buried.  One might add that not only the judge but counsel too had the feel of the matter and its impact; counsel for the applicant was content for the judge to give a strong correction and there was no suggestion by him on the applicant’s behalf that the jury should be discharged.

15.There were two other grounds advanced in the grounds of appeal but neither is pursued in oral submissions; in our view sensibly so because we are of the opinion that neither was meritorious.  

16.Because, in our judgment, the questions by prosecuting counsel which form the sole effective ground of appeal ought not to have been asked and cannot be said to have been immaterial, we grant leave to appeal the conviction and treat the hearing of the application as the appeal; but, for the reasons which we have provided, the appeal is dismissed.

Mr Wesley WC Wong, DDPP of the Department of Justice, for the Respondent

Mr Andrew Kan and Mr Henry YH Ng, instructed by Raymond C.P. Lo & Co. for the Applicant