HKSAR v. Wan Ming Kwan and Others

DCCC 458/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 458 OF 2012

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Reasons for Verdict

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1.The 2nd, the 3rd and the 4th defendants face three charges on the re-amended charge sheet - a charge of false imprisonment, Charge 1; a charge of robbery, Charge 2; and a charge of theft, Charge 3.

2.It is alleged that on 16 October 2011 at Room B, 1st Floor, Lily Mansion, Nos. 102-108 Lockhart Road, Wanchai, they falsely imprisoned a Thai female, Srithong Tarinee (PW1), robbed her of a ring, a necklace, a bank card and $24,600, and later that day stole a debt of $10,000 owed to her ex-husband, Lam Wai-ming, by HSBC.  They are alleged to have committed all the offences with Wan Ming-kwan, the 1st defendant on the charge sheet.

3.The principal witnesses for the prosecution were the alleged victim, Srithong Tarinee (PW1), and Wan Ming-kwan (D1), who had pleaded guilty to a charge of robbery and theft on the charge sheet before it was re-amended.  The first charge of false imprisonment against him was ordered to be left on the court file, not to be proceeded with without leave of the court.

4.The background to the charges now faced by the defendants is a gambling debt owed by a man named Ho Tak-shing (PW3), the boyfriend of Srithong Tarinee (PW1), to the 3rd defendant, Phanphai Kritsada. The debt had been incurred by Ho Tak-shing at premises run by the 3rd defendant and his mother, Deephlab Montha, the 2nd defendant, at Room B, 1st Floor, Lily Mansions, 102-108 Lockhart Road in Wanchai.  Those premises, apart from the gambling activities which were carried out there, were operated by the 2nd and 3rd defendants as a store for Thai goods and foodstuffs.

5.The essence of the prosecution case is that following the sentencing of Ho Tak-shing to a term of imprisonment on 30 September 2011 before he had repaid his debt to the 3rd defendant, his girlfriend (PW1) was induced to accompany the 1st defendant and a second man to the flat at Room B, 1st Floor, Lily Mansion, at around 6.46 am on 16 October 2011, where she was unlawfully detained for about 10 hours until she had arranged for the repayment, not only of her boyfriend’s debt to the 3rd defendant but also to another alleged debt owed by her boyfriend to another person, and other money demanded by the 1st defendant. 

6.It is alleged that during the period of her detention she was robbed of $4,600 which together with an HSBC bank card was taken from her handbag, and later her ring and necklace and $20,000, which at her request her ex-husband Lam Wai-ming had transferred into her bank account and which was later withdrawn.

7.It is also alleged that there was a theft of a further sum of $10,000, which at PW1’s request, PW1’s husband, Lam Wai-ming, had transferred into the 2nd defendant’s bank account during the course of PW1’s detention.

8.While the prosecution allege that the 1st defendant was the principal actor in these offences, they allege that the 2nd, 3rd and 4th defendants were party to them.

9.Ho Tak-shing (PW3) gave evidence of the gambling debt of approximately $10,500 which he owed the 3rd defendant and the approaches that had been made to him prior to his imprisonment in order to induce him to make repayment.  The first occasion had been at the flat in Lily Mansion.  Although the 3rd defendant was present, the demand for repayment was made by the 1st defendant, whom Ho understood was assisting the 3rd defendant in recovering the debt.  On this occasion Ho had asked for several days to make repayment. 

10.The second occasion was about a week later after the 1st defendant had arranged to meet him at the flat in Lily Mansion. On this occasion the 1st defendant had come to the flat with five to six males and he had been severely beaten by them with a spanner and fists. The 3rd defendant had been present during this incident but had not himself participated in the assault.

11.On a third occasion the 1st defendant had come to his home to seek repayment. 

12.On two or three other occasions the 4th defendant, whom he understood to be a friend of the 1st defendant, had approached him, asking him if he could make repayment of the debt owed to the 3rd defendant. 

13.There was no reason to doubt Ho Tak-shing’s evidence, which I accepted.

14.PW1, Srithong Tarinee, gave evidence of seeing her boyfriend Ho Tak-shing soaked in blood after he was brought back home by the 3rd defendant following the occasion he had been assaulted prior to 16 October.  On that or some other occasion she had spoken to the 3rd defendant, asking if the matter of the debt could be settled, but the 3rd defendant said that it could not be settled because he had already “sent the matter” to the 1st defendant.

15.She gave evidence of the events on 16 October 2011 at the flat at Lily Mansion.  The times of which the various individuals arrived and left the premises can be ascertained with the assistance of the times recorded on images from a CCTV camera recording the coming and going of individuals on the staircase from the Ground to the 1st Floor of Lily Mansion. The times at which certain money transactions were effected by the 1st defendant can be ascertained with the assistance of images captured by CCTV cameras at the ATM machines at branches of the Bank of China in Johnston Road and Hennessy Road.

16.PW1’s evidence was that she had met the 1st defendant, who was accompanied by another man, in the street in the early morning of 16 October.  The 1st defendant had asked her to accompany them to the flat in Lily Mansion.  Being scared, she had followed them.  She knew it was connected with her boyfriend’s debt.  Before entering the flat the 1st defendant made a telephone call to the 3rd defendant asking him to come, and had then scolded her using foul language.

17.The 2nd defendant had opened the door to the flat and then she (PW1) had been pushed by the 1st defendant and made to sit on the floor by the refrigerator in the main part of the living room. 

18.The 3rd defendant arrived with a Thai friend about 10 minutes later at 0656 hours. In the presence of the 3rd defendant and his friend, the 1st defendant had then told her to stand up and asked her about her boyfriend Ho Tak-shing’s imprisonment. When she told him, the 1st defendant had slapped her face and told the others present that he had slapped her “in order to show them”. The 1st defendant told her that she had been brought there because her boyfriend owed them $10,000. The 1st defendant took her handbag and took $4,600 in cash and an HSBC card from it.< /p>

19.The 1st defendant had then made a phone call, telling the called party that he had “caught” Ho Tak-shing’s girlfriend at the flat and that he should come to the flat.  She assumed that the other party must have been the 4th defendant because about half an hour later the 4th defendant arrived accompanied by another man.  From the CCTV image, Exhibit P2, album 4G, it is apparent that this was at about 8.28 am.

20.After the arrival of the 4th defendant, the 1st defendant had told her to go and sit in the kitchen area of the flat.  He had not permitted her to sit on the stool and had made her sit on the floor. 

21.After his arrival, the 4th defendant claimed that he had come to collect another debt of $10,000 which he alleged Ho Tak-shing owed to someone he described as his “brother”.

22.In the kitchen area PW1 was told by the 1st defendant to take off her ring and platinum necklace and put them on the table. She did so out of fear. 

23.Thereafter, in the kitchen area in the presence of the other men, including the 3rd defendant and the 4th defendant, the 1st defendant poked her in the middle of her forehead with a  billiard cue and threatened her by placing the blunt side of a chopper against her forehead. 

24.At one stage the 1st defendant had left the flat for a while to go upstairs to the 3rd floor where he had relatives.  It is not clear from the evidence as to whether this occurred during the earlier period when she was in the living room or the later period when she was in the kitchen area.

25.During the 1st defendant’s absence she had walked towards the main entrance of the flat intending to leave.  The 2nd defendant had followed her and lightly grasped her forearm.  Speaking in Thai to the 2nd defendant, PW1 had asked the 2nd defendant to let her go but the 2nd defendant had refused, saying that if she left the flat the 1st defendant would kill her.  The 2nd defendant had said she should wait until the 1st defendant returned.  She had asked the 2nd defendant to dial 999, but the 2nd defendant had refused, saying again that if she did so the 2nd defendant would kill her.

26.At another stage during the detention of PW1, the 4th defendant asked her to sign what she described as a contract (Exhibit P7), a document purporting to declare that she had borrowed $10,000 from the 4th defendant which she had repaid.  In order to create the document the 1st defendant had asked for PW1’s identity card.  When she gave it to him, he passed it to the 3rd defendant, who made a photocopy of the card in his bedroom. The 3rd defendant gave the photocopy to the 4th defendant who wrote out the words on the photocopy, which she then signed.

27.Despite the fact that she had been earlier told by the 1st defendant that Ho Tak-shing owed the 3rd defendant $10,000 and the 4th defendant had said that Ho Tak-shing owed a further $10,000 to his “brother”, at some stage the 1st defendant in the presence of the 3rd and 4th defendants had demanded a total sum of $30,000.  He said that he wanted such a sum as he was “unhappy and moody”.  He threatened to cut off PW1’s fingers unless she could raise that sum of money by noon that day. 

28.As a result, PW1 had made a phone call to her ex-husband, Lam Wai-ming (PW4), asking him to transfer the money to her.  The 1st defendant had switched on the speaker phone on the phone so that everyone present in the vicinity could hear the conversation.  At first, Lam was reluctant to transfer any money and told her to report the matter to the police, but she was crying and had begged him to help her.  She had then waited for her ex-husband Lam Wai-ming to call back. 

29.During this period of waiting the 1st defendant told the 3rd defendant to take a crossbow (Exhibit P4) from his bedroom.  He said he wanted “to play with it for fun”.  The 3rd defendant gave the 1st defendant the crossbow.  The 1st defendant then pointed the crossbow at PW1 and told her to open her legs as he intended to shoot her in that part of her body.  There was no arrow in the crossbow at that stage.  The 1st defendant had asked the 3rd defendant to fetch arrows for the crossbow but PW1 had begged the 3rd defendant not to do so and he had not done that.

30.About 15 minutes later the 1st defendant asked the 3rd defendant to fetch his camera and told PW1 to take off her clothes. PW1 shouted out to the 2nd defendant, who was in the main living room, who came into the kitchen area and scolded the 1st defendant and told him not to do that.

31.It is an admitted fact that at 10.11 am PW1’s ex-husband, Lam Wai-ming, withdrew $20,000 in cash from his HSBC account, which at 10.15 am he deposited into PW1’s Bank of China account.

32.PW1 said that she had spoken to Lam Wai-ming on the telephone, who had given her an explanation as to why he had only been able to transfer $20,000 into her account rather than the $30,000 she had requested.  The 1st defendant had then obtained the details of the 2nd defendant’s Hang Seng Bank account from the 2nd defendant which PW1 had then given to Lam Wai-ming so that he could transfer the balance of $10,000 into that account.

33.Before Lam Wai-ming had effected the transfer of the remaining $10,000 into the 2nd defendant’s account it is apparent from the CCTV footage (Exhibit P2, album 4, photographs H and I), that the 1st defendant had left the flat at 10.28 am and returned half an hour later at 11.02 am. Before leaving the flat he had obtained PW1’s Bank of China ATM card and her PIN number from her. 

34.While he was away from the flat, at about 10.50 am he withdrew $10,000 in cash from PW1’s Bank of China account using her ATM card.  Lam Wai-ming effected the transfer of the remaining $10,000 into D2’s Hang Seng Bank account at 11.27 am.

35.After returning to the flat, the 1st defendant had left again in the company of the man who had arrived with the 4th defendant.  It is apparent from the CCTV image (Exhibit P2, album 4, photo J) that this was at 11.34 am. 

36.At 11.47 am, the 1st defendant used PW1’s ATM card and PIN number to transfer $10,000 from her Bank of China account into the 4th defendant’s Bank of China account.  It is apparent that the 4th defendant must have given him his Bank of China ATM card and PIN number beforehand because the 1st defendant used them to withdraw $10,000 from the 4th defendant’s account.

37.The 1st defendant never returned to the flat although it appears that the man who had originally arrived with the 4th defendant did return.

38.When the 1st defendant had left the flat he left PW1 there with the man who had originally accompanied him to the flat as well as the 2nd, 3rd and 4th defendants.  They were later joined by the man who had originally arrived with the 4th defendant. 

39.It could be seen from the CCTV footage played to the court that subsequently the 3rd defendant had left the flat for about 10 minutes at 12.35 pm and had returned with food, which when he gave evidence he said he bought for himself and others.

40.PW1’s evidence was that after the 1st defendant had left the flat she was not permitted to move around the flat and she remained in the kitchen area until around 4.30 pm.  There were two men in the area in the immediate vicinity, as she put it, to “look after” her:  one who slept on the sofa and a second who was playing on the computer.  They made repeated calls to the 1st defendant.  She understood that the 1st defendant told them to keep waiting there. 

41.On one occasion when PW1 had made as if to go out they had told her that it was not time to go.  The 4th defendant told her to wait until the 1st defendant returned.

42.Shortly before she was allowed to leave she had asked the 4th defendant if she could leave and he had told her to wait until after they had left. 

43.Shortly afterwards the 4th defendant left with the man who had accompanied him to the flat and the man who had accompanied the 1st defendant to the flat.  She had then left. 

44.It is apparent from photograph N in Exhibit P2, album 4, that the 4th defendant, the man who had originally arrived with the 4th defendant, and the man who had originally arrived with the 1st defendant, left at 4.31 pm, followed by PW1 two minutes later.

45.The first prosecution witness (PW1) gave evidence over more than four days. 

46.Having seen and heard her evidence and considered it in the light of the other evidence in the case, I was left with no doubt that she was an honest witness, doing her best to recollect the events over 15 months previously.  I was satisfied that her evidence as to the parts played by the defendants in the incidents she described was essentially accurate and reliable. 

47.I am satisfied that from the moment of her arrival at the flat at around 6.46 am until she was permitted to leave at around 4.33 pm, she was not free to leave and was being unlawfully detained.

48.There had been a Thai customer in the premises during the latter part of her detention.  I believed her explanation as to why she did not complain about her detention to him. 

49.I did not have the same confidence in the evidence given by the 1st defendant, Wan Ming-kwan, who was called as a witness for the prosecution (PW2). 

50.He gave evidence of how he had been engaged by the 3rd defendant to collect the debt owed to the 3rd defendant by Ho Tak-shing and how he had assaulted Ho Tak-shing at the flat in Lily Mansion prior to Ho’s imprisonment. 

51.It was his evidence, which was later contradicted by the evidence of the 3rd defendant, that the 3rd defendant had agreed that he, the 1st defendant, could keep any money he recovered from Ho Tak-shing. 

52.On his account, the 4th defendant had suggested to him that he should simply collect $8,000 from Ho Tak-shing, rather than the amount Ho Tak-shing actually owed the 3rd defendant, to reflect Ho’s medical expenses as a result of the assault. 

53.He said that it was the 3rd defendant’s idea that Ho Tak-shing’s debt be recovered from PW1 and that in the early morning of 16 October, the 3rd defendant had alerted him to the possible arrival of PW1 in the vicinity of Luard Road.  He said it was for that reason he had waited for PW1 to arrive. 

54.While much of his evidence as to the treatment of PW1 inside the flat in Lily Mansion and who was present was consistent with that of PW1, there were differences.  Amongst them were the following.

55.On his account, after meeting PW1 in the street, they had not been able to gain access to the flat in Lily Mansion until after he had called the 3rd defendant and the 3rd defendant had arrived.  This was inconsistent with the evidence of both PW1 and the 3rd defendant. 

56.On his account, in contrast to evidence of PW1, PW1 had been taken into the kitchen area before the arrival of the 4th defendant. This was also inconsistent with the 3rd defendant’s recollection when he gave evidence.

57.The 1st defendant maintained that the 4th defendant was not present during the incidents involving the chopper and crossbow.  He denied taking away the ring and necklace of PW1.  He maintained that he had not imprisoned PW1 in the flat and that she was free to leave if she wished.  He claimed that he understood PW1 had volunteered to repay her boyfriend’s debt. 

58.The 1st defendant is a man with a criminal record, which includes offences of violence.  Even on his own account, he is a man with few scruples, who used violence and intimidation to obtain repayment of a loan from somebody (PW1)who was under no obligation to repay it.  It is clear that he is somebody with underworld connections who may well have his own agenda to pursue.  It is apparent from the evidence that his relationship with the 4th defendant was different to that with the 2nd and 3rd defendants, which might provide motive for distorting their relative roles in what occurred.  

59.All these were factors that would necessitate extra caution on the part of the court before accepting any part of his evidence.

60.I was satisfied there were matters about which he lied to the court or was not prepared to tell the whole truth. 

61.His evidence that he had been tipped off by the 3rd defendant as to the arrival of PW1 in Luard Road that morning conflicted with his statement in a video interview with the police that he had just happened to come across PW1 that morning. 

62.His evidence that PW1 was free to leave the flat was contradicted by his admission to the police when he was arrested that had had imprisoned PW1.

63.At one point in his evidence, he admitted that he had lied when he had earlier told the court that on an occasion when the 4th defendant had referred to his “big brother”, he did not know whether the 4th defendant was referring to a sworn brother.

64.His denial that he took PW1’s ring and necklace was contradicted by the facts which he admitted after his plea of guilty before the court.

65.He was unconvincingly vague when asked about the document P7, a document that had unexpectedly been referred to by PW1 in the course of her evidence and about which he would not have expected to be asked.

66.I did not believe his account that the 3rd defendant had agreed that he could keep any of the money he recovered from Ho Tak-shing.

67.I did not believe his evidence that he believed that PW1 had volunteered to repay her boyfriend’s debt.

68.In the light of these and other aspects of his evidence, I considered it unsafe to place any reliance on anything said by the 1st defendant in his evidence, where it was not confirmed by other credible evidence.  I, therefore, disregarded it in considering the case against the defendants.  

69.The 3rd defendant was the only one of the three defendants now before the court to give evidence.  He had earlier been interviewed by the police on 4 January 2012 (Exhibit P13) and 5 January 2012 (Exhibit P14). 

70.He gave evidence of the gambling debt owed to him by Ho Tak-shing and of a meeting about a month before the incident on 16 October, when he, Ho Tak-shing and the 1st defendant had been present at his store. He had asked Ho when Ho would repay the debt and Ho had promised to repay in one or two weeks. The 1st defendant, who was someone known to him as a customer at the store and who also gambled there, agreed to help him recover the debt. He claimed that he did not know the 1st defendant’s occupation, but agreed that he knew that the 1st defendant was someone who “moved around” with a group of other men.

71.On his account, one or two weeks before 16 October, the 1st defendant had made an appointment to meet Ho Tak-shing at his store.  The 1st defendant had arrived with five or six men and they had assaulted Ho Tak-shing.  He claimed that he had not asked the 1st defendant to assault Ho and was in his bedroom when the assault occurred.  After the assault he had come out of his bedroom and asked them not to continue to assault Ho. 

72.While he admitted that he knew the reason that Ho and the 1st defendant had arranged to meet at his flat was because of his debt, he claimed that he did not know that the 1st defendant was acting for him in recovering the debt when he assaulted Ho.  Only after the attack had he been told that it was connected with his debt.

73.As far as the events on 16 October are concerned, he denied having tipped off the 1st defendant that PW1 would come to the vicinity of Luard Road.  He had simply received a call from the 1st defendant, telling him to return to his store.   

74.When he arrived, he saw PW1, whom he knew, sitting on the floor of the living room, crying.  The 1st defendant and the 1st defendant’s friend were present.  He did not see her being slapped, but his mother had told him what had happened.  He tried to give PW1 a glass of water but was not allowed to do so.  He saw the 1st defendant holding PW1’s handbag but did not see him take anything from it. 

75.Apart from leaving the flat for a few minutes to buy three or four boxes of food at about 12.38 pm, he remained in the flat until after PW1 had left. 

76.His evidence was that throughout the period, while he knew there was a discussion about money, he did not know that the purpose of the 1st defendant coming there was to obtain repayment from PW1 of the debt he was owed by Ho Tak-shing.  He had just been told by the 1st defendant that the 1st defendant’s friend wanted to obtain repayment of a debt from PW1.

77.After the 4th defendant had arrived, he knew that PW1 had moved to the kitchen area and that the 1st defendant had made her sit on the floor.  He claimed he did not know why the 1st defendant did this. 

78.Thereafter, he claimed that for most of the time, he was in his bedroom and did not see what occurred.  He had not seen any jewellery being taken from PW1.  He had not seen her being threatened with a billiard cue or chopper.  He had not heard any threat to cut off her fingers. 

79.At one stage, the 1st defendant had come into his bedroom and taken his crossbow out.  He believed that the 1st defendant was simply going to show it to his friend, but when he saw the 1st defendant pointing it at PW1, he asked him to take it back to the bedroom.  As far as he was concerned, PW1 was free to leave the flat. 

80.There was a time that the 1st defendant had come into his bedroom to ask for his bank card.  He said he did not know the reason.  The 1st defendant had just said that money would be transferred into the account.  He did not know what money.  As he had no bank card, he had gone out of the bedroom and asked his mother for her bank card.  When he left the flat to buy food, PW1 was still sitting on the floor in the kitchen area with three men, including the 4th defendant, in the same area. 

81.He returned with three to four food boxes for himself and any of the others who wanted them.  When he returned, the men were in the same position as when he left.  He said that he took his own food into his bedroom and ate it there and he had then taken a nap until 4 to 5 pm.  When he woke up, PW1 had left. 

82.I have no doubt that the 3rd defendant did not give a truthful account to the court of his involvement in what occurred on 16 October. 

83.It is apparent from the photographs that this was a very small flat.  Apart from the short period he left to buy food, he was there from 6.56 am until after PW1 had left the flat at 4.33 pm, over 10 hours later.

84.Even if I had not believed PW1’s evidence as to the 3rd defendant’s activity that day, it is fanciful to suggest that in light of the size of the flat and the length of time he was there, that he would not have been aware of why PW1 had been taken to the flat, that she was being threatened with a view to her repaying the debts owed by her boyfriend, including a debt to him, and that she was not free to leave until she had raised the money.

85.On his own evidence, he had arrived to see PW1, who he knew, sitting on the floor crying, in the presence of the 1st defendant and another man.  The 1st defendant was a man he knew he had entrusted to gain repayment of his debt from Ho Tak-shing and who, with five or six others, had severely beaten Ho several days earlier.  He had been told by his mother that PW1 had already been slapped.  He had been refused permission to give her a glass of water.  He had seen that she was made to sit on the floor.  He had seen the 1st defendant pointing a crossbow at her.  He had been asked to provide a bank card so that money could be deposited into an account and he knew that she was being asked to arrange the transfer of money. 

86.His answer when he was asked, “You knew she was being detained against her will,” was particularly revealing.  He said, “I didn’t know what detained.  I just saw her sitting, waiting for transfer of the money.  I thought they were saying they were waiting for her husband to transfer the money, so I thought they would let her go faster.” 

87.Even from his evidence to the court, it was clear that he knew she was being detained against her will and must have known she was being subject to physical mistreatment in order to force her to arrange the transfer of money.

88.Significant features of his evidence in court was contradicted by admissions made by him during the interview he had with the police on 4 January 2012, when he expressly admitted that PW1 was being detained against her will (see counters 667, 675 and 812).  He expressly admitted that he knew the reason PW1 had been brought to the flat was because her boyfriend owed him money (counter 704).  He admitted that he had seen the 1st defendant slapping her (counters 1201 and 1221).  He admitted that he had seen the 1st defendant open and search PW1’s bag and although he said he did not see if the 1st defendant took anything, only he saw about $4,000, I am satisfied that he would not have made these admissions unless they were true. 

89.Although I consider it is possible he did not know that the 1st defendant had taken PW1 to his store prior to receiving a call from the 1st defendant, I am satisfied that when he received the call or at least very soon after arriving there, he would have been well aware that the 1st defendant had taken PW1 there to the flat to pressurise her to pay her boyfriend’s debt to him.

90.After the arrival of the 4th defendant, he would have been aware that PW1 was being pressurised to pay not only Ho Tak-shing’s debt to him but also an alleged debt owed by Ho Tak-shing to someone else, as well as other money demanded by the 1st defendant.

91.I accepted PW1’s evidence, inter alia, that:

(1) the 3rd defendant was watching when the 1st defendant slapped her;

(2) that the 3rd defendant was watching when the 1st defendant took $4,600 from her bag;

(3) that the 3rd defendant was present in the kitchen area and able to see her being poked with a billiard cue and threatened with the blunt side of a knife or cutter by the 1st defendant when she was sitting on the floor;

(4) that the 3rd defendant, at the 1st defendant’s request, had taken his crossbow out from the bedroom and given it to the 1st defendant and had been present when the 1st defendant threatened her with it but refused to give the 1st defendant the arrows to it;

(5) that the 1st defendant had requested the 3rd defendant to take out his camera and then threatened to take photographs of PW1 unclothed;

(6) that the 3rd defendant was present when the 1st defendant threatened to cut off PW1’s fingers if she could not repay the $30,000 demanded by noon;

(7) that the 3rd defendant was in the same room when PW1 spoke to her ex-husband on the phone, asking for him to transfer $30,000 to her, and would have been able to hear the conversation because the speakerphone was on;

(8) that the 3rd defendant did not spend any appreciable length of time in his bedroom;

(9) that at the time the 4th defendant wished to draw up the document Exhibit P4, the 3rd defendant had been given PW1’s identity card and had made a photocopy of it.

92.Following his arrival at the flat and having seen the conduct of the 1st defendant towards PW1, including the taking of the money by the 1st defendant from PW1’s handbag, the 3rd defendant would have been quickly aware that force was being used and threats made by the 1st defendant in order to force her to pay her boyfriend’s debts to him, which the 3rd defendant would have been well aware she was under no legal obligation to repay.

93.After the arrival of the 4th defendant and his companion, he would have been well aware that PW1 was being subjected to further threats and violence to pay in addition an alleged debt by her boyfriend to someone described as the 4th defendant’s “brother”, as well as additional money being demanded by the 4th defendant.  He would have been well aware there was no justification for demanding payment of these sums from PW1.

94.He would also have been quickly aware from the circumstances that PW1 was being detained against her will.  Indeed, as I have said, he admitted as much in his interview with the police on 4 January 2012.

95.The 3rd defendant faces a charge of false imprisonment (Charge 1), robbery (Charge 2) and theft (Charge 3).

96.As I have said, I am satisfied beyond reasonable doubt that PW1 was being falsely imprisoned in the store from the time of her arrival there at about 6.46 am until she was permitted to leave about 10 hours later at around 6.23 pm.

97.I am equally satisfied that she was victim of the robbery alleged in Charge 2 and the theft alleged in Charge 3.

98.I am satisfied that PW1 was not simply robbed of the $4,600 and the HSBC card, which, in the presence of the 3rd defendant the 1st defendant took from her handbag after he had slapped her, as well as the jewellery the 1st defendant later made her remove in the kitchen area, but also the $20,000 which he withdrew in cash from ATM machines after PW1’s ex-husband Lam Wai-ming had transferred the money into her account.

99.I am satisfied that the $10,000 in cash, which the 1st defendant drew from PW1’s bank account at 10.50 am, and the $10,000 in cash, which D1 withdrew from the 4th defendant’s Bank of China account at 11.46, having transferred it from PW1’s account to D4’s account, was money belonging to PW1. This $20,000 was stolen by the 1st defendant. It was dishonestly appropriated by him with the intention of permanently depriving PW1 of it.

100.The offence of robbery requires that the offender must at the time of the theft, immediately before or at the time of doing so, and in order to do so, use force on the victim or put the victim in fear of there and then being subjected to force.

101.I am satisfied, given the circumstances of this incident and the fact that the money was not in PW1’s personal possession but had to be obtained from ATM machines, that the force or threat of force used against her was sufficiently proximate to satisfy the requirement that it be immediately before the theft.

102.In particular, I am satisfied that even during the periods the 1st defendant left the flat, leaving her in the custody of others, she remained subject to the threat of force being used against her for the purpose of effecting the appropriation of the cash from the ATM machines.  The force and the threat of force was clearly for the purpose of theft.

103.I am equally satisfied that the 1st defendant dishonestly appropriated the debt of $10,000, which HSBC owed Lam Wai-ming, which Lam had transferred into the 2nd defendant’s bank account with the intention of permanently depriving Lam of it.

104.Having satisfied myself that these offences were committed, I have to decide whether the prosecution have proved that the 3rd defendant was party to these offences.  I have borne in mind that the mere fact that the 3rd defendant was present and was aware that the offences were being committed does not make him party to them. 

105.I am, however, satisfied that the 3rd defendant was not simply present during the commission of these offences - of false imprisonment, robbery and theft - knowing that they were being committed but I am satisfied that he became party to them.

106.He delegated the collection of his debt owed by Ho Tak-shing to the 1st defendant.  He would have well known the sort of person the 1st defendant was.  Indeed, he witnessed it during the earlier assault on Ho Tak-shing.

107.Despite the fact that it was his home, he would not have remained in this very small flat for almost 10 hours, knowing what was happening to PW1, unless he was party to it.  He was free to leave at any time and had done for a short time to buy food.  He would have known that his presence with that of the other men added to the threats and pressure on PW1 to comply with what was being demanded of her and to remain in the flat.

108.I am satisfied that when he gave his crossbow to the 1st defendant, he would have been well aware of the use that D1 intended to make of it. 

109.He had assisted in the joint enterprise by, on his own admission, obtaining his mother’s bank card from her so that PW1 could be supplied with the details of his mother’s account into which money was paid. He would have known that the money to be credited to that account was money that PW1’s boyfriend allegedly owed to him.

110.What is more, he had assisted in the enterprise by, after he left the flat, returning with food for himself and the others detaining PW1 who wanted such food.

111.I am satisfied that he intended that PW1 be permanently deprived not only of the $10,000-odd that he was owed by Ho Tak-shing but also of the money demanded of her by the 1st defendant and the 4th defendant. 

112.I find that the 3rd defendant cannot afford himself of the defence of duress.

113.As I have said, he delegated the recovery of his debt to a man whom he would have been aware might use coercive methods to enforce the debt.

114.There is nothing to suggest that he himself was under any threat from the 1st defendant if he disassociated himself from what the 1st defendant was doing.  He was free to leave the flat at any time. 

115.I find that the 3rd defendant was party to the offences of false imprisonment, robbery and theft in Charges 1, 2 and 3. I find him guilty of those charges.

116.The 2nd defendant, Deephlab Montha, elected not to give evidence, but she had been the subject of two video recorded interviews on 5 January 2012 from 0041 to 0147 hours and 2043 to 2221 hours.  In her statements to the police, she indicated that she was aware of much that had happened to PW1 in her store that day, but alleged that she had made attempts to stop it, but was powerless because of fear of the 1st defendant.  Any involvement she had had was out of fear of the 1st defendant or desire to help PW1.

117.Even on the evidence of PW1, which I accepted, the 2nd defendant’s role in the events that day was very limited.

118.When the 2nd defendant opened the door to the flat, she had appeared shocked to see PW1.  PW1 said she thought that was because she was scared of the 1st defendant.  The 2nd defendant was present when the 1st defendant had pushed PW1 and told her to sit on the floor of the living room by the refrigerator, but had been in the lavatory when the 1st defendant had slapped her.  She had come out of the lavatory and asked PW1 why she was crying.  When PW1 told her, she had asked the 1st defendant to stop.

119.She had, however, been present when the 1st defendant had taken the $4,600 from PW1’s handbag.

120.After the arrival of the 4th defendant, when events had moved from the living room area to the kitchen area, the 2nd defendant had remained in the living room area.

121.The 2nd defendant had not been in the kitchen area when the 1st defendant had poked PW1’s forehead, threatened her with a chopper, pointed the crossbow at her or when he asked the 3rd defendant to fetch a camera so that he could take photographs of PW1 unclothed.  When the latter incident occurred, PW1 had called out to the 2nd defendant and the 2nd defendant had come in quickly and scolded the 1st defendant and told him not to do it.

122.The 2nd defendant had not been in the kitchen area when PW1 had been making telephone calls to her ex-husband.

123.I accepted PW1’s evidence that the 2nd defendant had let PW1 share some of the food she had prepared shortly before PW1 was permitted to leave the shop.

124.However, I am satisfied that the 2nd defendant was not simply an innocent spectator to events that day.

125.During the course of the day, she provided details of her Hang Seng account, into which the 1st defendant had subsequently transferred $10,000.

126.On an occasion the 1st defendant had temporarily left the flat and PW1 attempted to leave, the 2nd defendant had restrained her by lightly grasping her forearm.

127.As I have already said, PW1 had asked the 2nd defendant to let her go, but the 2nd defendant told her to wait until the 1st defendant returned and had said that if she let PW1 go, the 1st defendant would kill her.  She had refused PW1’s request to dial “999”, giving the same reason.

128.I am satisfied that the 2nd defendant knew that the reason the 1st defendant had brought PW1 to the store was because of a debt owed to her son, the 3rd defendant (counter 536, Exhibit P11), and the approximate amount of the debt (counter 566) and the amount demanded (counter 576). 

129.She knew that violence was being used on PW1. She had seen her forced to sit on the floor of the living room and knew that she had been slapped.  Even though she was not in the same part of the flat, bearing in mind the size of the flat, she must have been aware that physical improper pressure was being put on PW1 to at least repay the debt owed to her son.  She herself had come into the kitchen area on at least one occasion in response to a plea for help from PW1.  She was aware that PW1 was being held against her will (counter 753).  She was aware that PW1 was making calls to her ex-husband, asking him to transfer the money demanded into PW1’s account.

130.In her interview (Exhibit P11), she admitted that she knew PW1 would not be released until the money demanded had been paid.  Indeed, she was obviously aware that the reason she was being asked to provide the particulars of the Hang Seng Bank account was so that at least some of the money could be deposited into her account.  She claimed (counter 816) that it was because she wanted the 1st defendant and his associates to leave.

131.Although I am not satisfied that the 2nd defendant was party to any joint enterprise to rob PW1 of her ring, necklace, bank card or the $4,600 taken from her handbag or the extra $20,000 demanded by the 1st defendant and the 4th defendant, which was unrelated to the debt to her son, she became - albeit perhaps reluctantly - party to the theft of the debt of $10,000 that was transferred into her Hang Seng Bank account.  She knew there was a debt of a similar amount owed to her son.  She knew that wholly improper means were being made to obtain the repayment of this sum and yet she provided her bank details so the money could be transferred into that account.

132.I did not believe that her purpose in providing the bank details was solely so that PW1 could be released.  If she had been concerned to secure the release of PW1, she was free to leave the flat and summon assistance.  She did not do so.

133.I am satisfied that she did dishonestly intend permanently to deprive the person to whom that money or choses-in-action belonged of it, aware that there was no lawful justification.

134.Furthermore, on the basis of PW1’s evidence of the 2nd defendant’s attempts to restrain her leaving the store and refusal to dial “999”, I find that, albeit perhaps reluctantly, she did become party to the false imprisonment of PW1. 

135.Even she admitted (counter 704) that the 1st defendant had told her not to let PW1 leave the flat.  I did not accept her answer at counter 716 that she was simply pretending not to let PW1 leave.

136.I have considered the issue of duress in relation to the 2nd defendant.  I am satisfied that she may well have been a reluctant participant in the theft of the $10,000 from PW1, but that that reluctance is a matter of mitigation rather than amounting to the defence of duress.

137.I take the same view of her participation in the false imprisonment.  She may have been scared of the 1st defendant, but she was always free to leave the flat, as she did for a short period after 4 pm when she left and returned.  The 1st defendant was not even in the flat when PW1 asked her to let her leave.  In any event, she herself could have left at that stage.

138.She could easily have made an excuse for not providing her bank details.

139.I, therefore, find the 2nd defendant guilty of Charge 1 (false imprisonment) and Charge 3 (theft) on the re-amended charge sheet and not guilty of Charge 2, the charge of robbery.

140.I should add that in considering the case against the 2nd and 3rd defendants, I had borne in mind that in the statement to the police, PW1 had said words to the effect that she did not know if they knew about the incident. 

141.I am satisfied that while those words may reflect an impression that they may not have known what was planned in advance and were not apparently prime movers in what occurred in the store, the actions of both the 2nd defendant and the 3rd defendant described by PW1 showed that they were parties to what occurred, to the extent I have mentioned.

142.The 4th defendant elected not to give evidence and had not given any statement or interview to the police. 

143.I accepted the evidence of Ho Tak-shing (PW3) that he had met the 4th defendant, whom he knew to be a friend of the 1st defendant, on more than one occasion prior to 16 October, when the 4th defendant had asked him when he would make repayment to the 1st defendant of the money he owed to the 3rd defendant.

144.I accepted the evidence of PW1 that on 16 October, after she had been accompanied to the store at Lily Mansion by the 1st defendant and the 1st defendant’s companion and after the arrival of the 3rd defendant and his companion, the 1st defendant had made a telephone call to someone, telling him or her to come to the premises, as he had “caught Ho Tak-shing’s girlfriend there”.  This call was followed by the arrival of the 4th defendant and a male companion at a time, I accept from the photographs (Exhibit P2, album 4G), must have been about 8.28 am.  The only reasonable inference in the circumstances is that the 1st defendant’s call had been made to the 4th defendant.

145.I accepted PW1’s evidence that after arrival, the 4th defendant had referred to another debt owed by Ho Tak-shing and  had said that Ho Tak-shing owed his “brother” $10,000 and that he had come to collect the debt for him and that the 4th defendant was present when the 1st defendant demanded a total of $30,000 from PW1 as he was feeling “unhappy and moody”.

146.Thereafter, the 4th defendant remained in the store for the next eight hours until he left at around 4.31 pm with a man who had originally accompanied D1 to the premises and the companion who had accompanied him to the premises (see Exhibit P2, album 4, photograph N).

147.I accepted the evidence of PW1 that following the arrival of the 4th defendant, she was told to go into the kitchen, where she was made to sit on the floor, and during the ensuing hours she was detained there, the 4th defendant was present in the same area whenever the 1st defendant had done anything to her.

148.In particular, I accepted PW1’s evidence that the 4th defendant was present when the 1st defendant threatened to cut off her fingers if she did not raise the $30,000 by noon that day; when P1 telephoned her ex-husband with a speakerphone switched on, requesting him for money; at the time of the incidents the 1st defendant threatened her with the billiard cue, the chopper, the crossbow and threatened to take photographs of her unclothed.

149.I have no doubt that the 4th defendant remained in the flat together with his and the 1st defendant’s companions after the 1st defendant had finally left in order to ensure that PW1 did not herself leave. Indeed, I accepted PW1’s evidence that shortly before the 4th defendant did leave at around 4.31 pm, she had asked him if she could leave and he had replied that they should wait until the 1st defendant returned and had later said that she should let him and his companions leave before she herself left.

150.I have no doubt that he was party to her unlawful detention that day and is guilty of the offence of false imprisonment (Charge 1) on the re-amended charge sheet.

151.As far as the charges of robbery and theft are concerned, I have no doubt that he was party with the 1st defendant to those offences.

152.I find both insofar as the theft and the robbery charge is concerned, he was well aware there was no legal justification in demanding that PW1 pay debts owed by Ho Tak-shing.  He would have known that approximately $10,000 of the $30,000 demanded by the 1st defendant was money allegedly owed to the 3rd defendant by Ho Tak-shing.  Indeed, he had been involved in previous attempts to collect that sum from Ho Tak-shing on behalf of the 1st defendant.

153.It would have been abundantly clear to him that PW1 was not willing to pay that sum, otherwise there would have been no need to threaten and mistreat her in the way the 1st defendant was doing.

154.Equally, he would have known that PW1 was not willing to pay the additional $10,000 which he had demanded on account of an alleged debt owed by Ho Tak-shing to his “brother”.

155.I accepted PW1’s evidence that she had even asked him why he was demanding a debt from her that was not related to her and that the 4th defendant had not replied.

156.The fact that he drafted the document for PW1 to sign, which did not reflect a loan to any “brother” of his, demonstrated that he did not believe there was any legitimate basis for seeking money from PW1.

157.He would have also been aware, in view of his presence at the time, that D1 was demanding money in addition from PW1 that had no connection with any debt owed by Ho Tak-shing.

158.I find that the only reasonable inference from the circumstances is that the 4th defendant and the man who arrived with him at about 8.28 am were henchmen of the 1st defendant, whom he had summoned to assist him in forcing PW1 to repay the debt that Ho Tak-shing owed to the 3rd defendant, and that when the 4th defendant arrived he added his own demand.

159.I am satisfied although they may not themselves have uttered threats or physically mistreated PW1, they were present in order to reinforce the demands, threats and intimidation by the 1st defendant in order to obtain money from PW1.

160.Their presence, on the occasions the 1st defendant left the flat, was to ensure that PW1 did not leave the flat until it could be confirmed that the sums demanded of her had been received.

161.Furthermore, I am satisfied that the 4th defendant provided his ATM card to the 1st defendant in order to assist in the dishonest appropriation of money belonging to PW1.

162.I find the 4th defendant guilty of Charges 2 (robbery) and 3 (theft) - both charges in the re-amended charge sheet - as well as the charge of false imprisonment (Charge 1) in the same charge sheet.

Please refer to CACC94/2013 for the relevant appeal(s) to the Court of Appeal.