Hong Kong Special Administrative Region v. Kwok Tsz-lok, Leo

FAMC No. 24 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 24 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 200 OF 2008)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.At the conclusion of the hearing, we dismissed the application for leave to appeal on the substantial and grave injustice ground saying that we would hand down our reasons later. These are our reasons. 

2.The applicant was convicted after trial before a judge and jury of kidnapping, contrary to s.42 of the Offences Against the Person Ordinance, Cap 212. The prosecution case was that in 1997, the applicant together with 3 other persons kidnapped a victim and demanded a ransom of $3.5 million. The victim managed to escape. The other 3 persons were arrested but the applicant went via Macau to the Mainland where he stayed for 10 years. Meanwhile, two of the offenders had pleaded guilty to the offence and the third (Cheng) pleaded not guilty but was convicted after trial. When the applicant returned to Hong Kong in 2007, he was arrested and charged with the same offence.

3.At trial, he testified that he was only asked by Cheng to assist in collecting a debt alleged to have been owed by the victim but he did not take part in the kidnapping. He also called Cheng to give evidence on his behalf. Cheng’s evidence was to the effect that he himself was the ringleader and that the applicant had nothing to do with the kidnapping. This was contrary to what Cheng had previously said in his own trial where he put all the blame on the applicant. Cheng admitted that he had previously lied against the applicant but explained that he did so because the applicant was then not in Hong Kong and was thus an easy target. 

4.The applicant’s first two complaints can be dealt with together. Counsel argues that he should not be asked during his cross-examination whether he knew Cheng had implicated him in the previous trial. It is submitted that this was inadmissible hearsay and was prejudicial to him and that he was effectively deprived of the choice of not calling Cheng. We do not think this argument is sustainable. We agree with the Court of Appeal that while prosecuting counsel should not have put those questions to the applicant during cross-examination, there was no material prejudice to him. His intention to call Cheng was already made known to the court and the prosecution when he applied for a Body Order to secure Cheng’s presence in court. As the Court of Appeal noted, when the applicant was cross-examined, his counsel raised no objection to those questions. This is not surprising since Cheng’s evidence was intended by the applicant to be used in support of his own case that he was not involved in the kidnapping. When Cheng went to the witness box, he would certainly be asked and was indeed asked by the applicant’s own counsel the same questions. In the circumstances of this case, it simply does not lie in the mouth of the applicant that he was prejudiced by those questions.

5.The next complaint is that there was a difference between applying restraint on a debtor for the purpose of recovery of a debt and kidnapping a person to extract a ransom and that the judge had failed to give an appropriate direction on this but had instead improperly made a disparaging remark against the applicant which had the effect of discrediting him in the minds of the jury. The Court of Appeal did not consider this remark disparaging. Nor do we. The judge was merely reminding the jury of what the applicant had said on this aspect of his defence. The jury had been adequately and properly directed on the ingredients of the offence of kidnapping.  It would be confusing to direct them on another offence.

6.Finally, the applicant submits that the judge had failed to give the usual direction to the jury that they should not draw any inference of guilt against the applicant from the convictions of Cheng and the other 2 persons and that this failure amounted to a significant departure from trial standards. This argument is plainly unarguable. It was the applicant’s case which he said was supported by Cheng’s evidence that there were only 3 persons involved in the kidnapping and that they were Cheng and the other 2 persons. The convictions of these 3 persons were thus material to his defence. As the Court of Appeal noted, it was the applicant who wished their convictions to be known to the jury. There was no question of the jury drawing any adverse inference against the applicant or in any way misusing this information.

7.We see no departure from accepted norms to the detriment of the applicant.  With respect to counsel, there are no merits in any of the points raised. The application must be dismissed.

Mr James McGowan, instructed by the Legal Aid Department, for the Applicant

Mr Edmond Lee, of the Department of Justice, for the Respondent