HKSAR v. Li Chi Wang

CACC 94/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 94 OF 2013

(ON APPEAL FROM DCCC 458 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.The applicant, to whom we will refer by his designation as the 4^th defendant at trial sought leave to appeal against his convictions and sentence. The 4^th defendant had been convicted after a joint trial on a 2^nd Re-Amended Charge Sheet with Deephlab Montha and her son Phanphai Kritsada, respectively the 2^nd and 3^rd defendants, by Deputy District Court Judge Longley on 5 March 2013 of three offences committed on 16 October 2011, namely false imprisonment (Charge 1) and robbery (Charge 2) of Ms Srithong Tarinee at Room B, 1/Floor, Lily Mansion, 102-8 Lockhart Road, Wan Chai and the theft of $10,000, being a debt owed by HSBC to Ms Srithong Tarinee’s former husband, Mr Lam Wai Ming (Charge 3). At the hearing we reserved our judgment in respect of both applications.

2.On arraignment on 21 January 2013 the 1^st defendant, who was named in the Particulars of the Offence as a party to Charges 1 and 2, pleaded guilty to Charge 2 and what became Charge 4 on what became the 2^nd Re-Amended Charge Sheet.  The latter charge concerned the theft of $398 from Ms Srithong Tarinee, being a debt owed to her by the Bank of China.  The erstwhile 1^st defendant was called as a witness for the prosecution in the ensuing trial of his former co-accused.

3.On 6 March 2013 the 4^th defendant was sentenced to 3½ years’ imprisonment for the offence of false imprisonment, Charge 1, 6 years’ imprisonment for Charge 2 and 12 months’ imprisonment for the theft the subject of Charge 3.

THE TRIAL

4.There is no dispute that in the Reasons for Verdict the judge accurately summarised the background of the case and the respective cases of the prosecution and defence at trial.  Accordingly, we gratefully adopt relevant passages of the Reasons for Verdict.

Background

5.Of the background to the case, the judge said:[1]

“ 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 3^rd defendant, Phanphai Kritsada. The debt had been incurred by Ho Tak-shing at premises run by the 3^rd defendant and his mother, Deephlab Montha, the 2^nd defendant, at Room B, 1^st 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 2^nd and 3^rd defendants as a store for Thai goods and foodstuffs.”

6.Of the circumstances of the creation of the debt and preliminary steps taken to seek its repayment the judge noted:[2]

“ Ho Tak-shing (PW3) gave evidence of the gambling debt of approximately $10,500 which he owed the 3^rd 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 3^rd defendant was present, the demand for repayment was made by the 1^st defendant, whom Ho understood was assisting the 3^rd defendant in recovering the debt. On this occasion Ho had asked for several days to make repayment.

The second occasion was about a week later after the 1^st defendant had arranged to meet him at the flat in Lily Mansion. On this occasion the 1^st 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 3^rd defendant had been present during this incident but had not himself participated in the assault.

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

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

The prosecution case

7.The judge said of the prosecution case:[3]

“ 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 3^rd defendant, his girlfriend (PW1) was induced to accompany the 1^st defendant and a second man to the flat at Room B, 1^st 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 3^rd defendant but also to another alleged debt owed by her boyfriend to another person, and other money demanded by the 1^st defendant.

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.

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 2^nd defendant’s bank account during the course of PW1’s detention.

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

8.Ms Srithong Tarinee testified that soon after she, the 1^st defendant and another male entered Room B, Lily Mansion, the 3^rd defendant arrived.  In the presence of the 3^rd defendant, the 1^st defendant told her that her boyfriend owed them $10,000.  Then, he took her handbag and slapped her hard across the face.  He removed $4,600 in cash and an HSBC bank card from her handbag.  The 1^st defendant made a phone call in which he informed the other party that he had “caught” Ho Tak Shing’s girlfriend and invited the party to come to the premises.

9.Later, the 4^th defendant came to the premises.  She said that he told her that he was there to collect another debt of $10,000 owed to his “brother”.  At the demand of the 1^st defendant she removed from her person a ring and a platinum necklace and placed them on a table.  Then, in the presence of the 3^rd and 4^th defendants, the 1^st defendant poked a billiard cue in the middle of her forehead and applied the blunt side of chopper against her forehead.  At the demand of the 4^th defendant she signed a photocopy that had been made by the 3^rd defendant of her identity card on which the 4^th defendant has written an acknowledgement of her repayment of debt said to be owed of $10,000.  Next, in the presence of the 3^rd and 4^th defendants, the 1^st defendant demanded payment of $30,000.  As a result, she telephoned her former husband, Lam Wai Ming, and asked him to assist her by transferring that amount of money to her.  In face of his reluctance to do so, several phone calls between them ensued.  During that period the 1^st defendant threatened to shoot her private parts with a crossbow.

10.The movements of persons to and from Room B, Lily Mansion and the time of banking transactions conducted at ATM machines at nearby branches of the Bank of China in both Johnson Road and Hennessy Road were captured on CCTV and were the subject of admitted facts.  In her evidence Ms Srithong Tarinee identified persons captured on CCTV coming and going at various times on the staircase that led from the ground floor to the first floor of Lily Mansion.  That evidence, together with admitted facts in respect of Lam Wai Ming, established the following chronology of events:

The defence case

11.Of the three defendants at trial, only the 3^rd defendant gave evidence.  No other evidence was called in the defence case.  As the judge noted, the 3^rd defendant said that prior to the events of 16 October 2011 he was owed a gambling debt by Ho Tak Shing.  The 1^st defendant had agreed to help him to recover the debt.  However, he was not party to nor did he agree with the assault by the 1^st defendant and others of Ho Tak Shing at Flat B, 1/Floor, Lily Mansion one or two weeks earlier.

12.Of the 3^rd defendant’s evidence of the events of 16 October 2011, the judge said:[4]

“ He had simply received a call from the 1^st defendant, telling him to return to his store.

When he arrived, he saw PW1, whom he knew, sitting on the floor of the living room, crying. The 1^st defendant and the 1^st 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 1^st defendant holding PW1’s handbag but did not see him take anything from it.

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.

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 1^st 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 1^st defendant that the 1^st defendant’s friend wanted to obtain repayment of a debt from PW1.

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

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.

At one stage, the 1^st defendant had come into his bedroom and taken his crossbow out. He believed that the 1^st defendant was simply going to show it to his friend, but when he saw the 1^st 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.

There was a time that the 1^st defendant had come into his bedroom to ask for his bank card. He said he did not know the reason. The 1^st 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 4^th defendant, in the same area.

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.”

The case of the 4^th defendant

13.In the case of the 4^th defendant, as put in cross-examination of Ms Srithong Tarinee, no issue was taken that the 4^th defendant wrote the words of receipt on exhibit P7, in which payment of a debt of $10,000 was acknowledged by the witness, on the photocopy of her identity card.[5] It was suggested, but denied by the witness, that the 1^st defendant had not said in a telephone call to the 4^th defendant that the witness had been “caught”.[6]  The witness denied the suggestion that she was not in the living room at the time of the arrival at the premises of the 4^th defendant.[7]  The witness accepted that in “part” the 4^th defendant was nice to her whilst on the premises, although she retorted that he was present when she was assaulted and did not try to help her and he had written out the “contract” which she signed notwithstanding the fact that she never met him before and did not owe him any money.[8]  Although she accepted that she had not mentioned in her statement dated 31 March 2012 that he had said to “Let us leave before you leave”,[9] she denied the suggestion that the 4^th defendant had not said that.  He and his friend said that.[10]  She denied a suggestion that the demand for $30,000 had not been mentioned in the presence of the 4^th defendant and that for most of the time the 4^th defendant was in a bedroom.[11]  Finally, she denied the suggestion that he was not present when she was threatened, assaulted or when phone calls were made to her former husband.[12]

Reasons for Verdict

14.In his Reasons for Verdict, the judge described Ms Srithong Tarinee and Wan Ming Kwan, the erstwhile 1^st defendant, as the “principal witnesses for the prosecution”.[13]  He went on to accept the former as “an honest witness, doing her best to recollect events over 15 months previously”.[14] Of her evidence as to the parts played by the respective defendants in the events the subject of the charges, he said that her account was “essentially accurate and reliable”.

15.By contrast, in respect of the 1^st defendant the judge said “I was satisfied there were matters about which he lied in this court was not prepared to tell the whole truth”.[15]  In the result, he determined:[16]

“ I considered it unsafe to place any reliance on anything said by the 1^st defendant in his evidence, where it was not confirmed by other credible evidence. I, therefore, disregarded it in considering the case against the defendants.”

16.In convicting the 4^th defendant of Charges 1, 2 and 3, the judge said:[17]

“ I accepted the evidence of PW1 that on 16 October, after she had been accompanied to the store at Lily Mansion by the 1^st defendant and the 1^st defendant’s companion and after the arrival of the 3^rd defendant and his companion, the 1^st 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 4^th 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 1^st defendant’s call had been made to the 4^th defendant.

I accepted PW1’s evidence that after arrival, the 4^th 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 4^th defendant was present when the 1^st defendant demanded a total of $30,000 from PW1 as he was feeling “unhappy and moody”.

Thereafter, the 4^th 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).

I accepted the evidence of PW1 that following the arrival of the 4^th 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 4^th defendant was present in the same area whenever the 1^st defendant had done anything to her.”

17.Thereafter, the judge set out the mistreatment meted out to Ms Srithong Tarinee by the 1^st defendant in the presence of the 4^th defendant, namely threatening to cut off her fingers if she did not raise $30,000 by noon; threatening her with a billiard cue, a chopper and a crossbow and threatening to take photographs of her unclothed.

18.Of the role of the 4^th defendant, the judge said:[18]

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

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 1^st defendant in order to obtain money from PW1.

Their presence, on the occasions the 1^st 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.

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

Reasons for Sentence

The 4^th defendant  

19.In sentencing the 4^th defendant for the offences of false imprisonment, robbery and theft, the judge said:[19]

“ Your role on that day was one of the henchmen of the 1^st defendant. You had been involved in earlier approaches on the 1^st defendant’s behalf to Ho Tak-shing with a view to have him repay the debt that he owed the 3^rd defendant. On 16 October you and a male accomplice responded to a call from the 1^st defendant telling you that he had caught Ho Tak-shing’s girlfriend. You came to the flat at about 8.28 am and remained there for the following 8 hours while Srithong was assaulted and threatened by the 1^st defendant in your presence. Thereafter, you guarded her until about 4.30 pm, when you permitted her to leave.

Not only did you go to the flat to lend strength to the 1^st defendant’s attempts to extort from Srithong, by threats and violence, the money her boyfriend owed to D3, but you also demanded a further sum of $10,000 being an alleged debt owed to your “brother”. You created a fictitious receipt for that sum.

As with the 3^rd defendant I bear in mind that you did not personally threaten or assault Srithong.”

Sentence

20.The judge stipulated a starting point of 3½ years’ imprisonment for the offence of false imprisonment, 6 years’ imprisonment for the offence of robbery and 12 months’ imprisonment for the offence of theft.  Determining that there were no circumstances which warranted any discount from those sentences, the judge imposed those terms of imprisonment, ordering that they be served concurrently.

The 4^th defendant’s grounds of appeal against conviction

21.The sole ground of appeal against conviction advanced by Mr McGowan on behalf of the 4^th defendant was that “the interruptions and intercessions” of the judge were such that the 4^th defendant “did not receive a fair trial”.  In his written submissions Mr McGowan makes it clear that the complaint is aimed at the alleged conduct of the judge in the course of the testimony of Ms   Srithong Tarinee, both in her evidence-in-chief and in cross-examination.  In support of that ground Mr McGowan provided the schedule setting out the occasions of judicial intervention in the testimony of the witness with which issue was taken.  He relied upon the judgment of this court in R v Yeung Mau Lam[20] as identifying the propositions and considerations relevant to the issue.

22.In his oral submissions, Mr McGowan focused his complaint on the questioning of Ms Srithong Tarinee that the judge embarked upon in the course of cross-examination by counsel for the 2^nd defendant.[21]  Although the judge had said “there are a number of questions I want to ask in order to clarify the chronology” in fact his questions went beyond matters of chronology.  Whilst no objection was made to questions in respect of the former, objection was taken in respect of the latter category of questions.  Although Mr McGowan said that he accepted that the judge was not biased in fact, nevertheless he submitted that an informed bystander would say that he had entered the arena and was “proving the prosecution case”.

Grounds of appeal against sentence

The 4^th defendant

23.On behalf of the 4^th defendant Mr McGowan submitted that the sentence of 6 years’ imprisonment imposed upon the 4^th defendant for the offence of robbery failed to distinguish appropriately between the culpability of the 4^th defendant from that of the 1^st defendant, for whom the judge had taken a starting point for sentence of 7½ years for that offence.  That distinction failed adequately to reflect the judge’s findings as to their respective roles and culpability, in particular that the 1^st defendant occupied the principal role amongst those involved in the commission of the offences and that he was the one who had assaulted Ms Srithong Tarinee and issued multiple threats to her.  Although the judge had referred to the 4^th defendant’s criminal record, he did not acknowledge that the 4^th defendant had not been convicted of any other criminal offence in the ensuing 7½ years.  Further, the 1^st defendant had been convicted of more prior offences, including for offences in more recent years.

A CONSIDERATION OF THE SUBMISSIONS

The 4^th defendant

Judicial questions of the witness in her testimony

24.The issue of the ambit of permissible questioning by a judge of a witness during testimony was addressed by this court inR v Yeung Mau Lam, in the context of a ground of appeal in which it was asserted that by reason of the judge’s questions he had entered the arena so that the appearance was given that the defendant “was not getting a fair trial from a judge who was impartial.”  In the judgment of the court, Power JA, as he was then, said:[22]

“ We are satisfied that the authorities establish the following five propositions apposite to our considerations:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.

As Denning L. J. pointed out in Jones v. National Coal Board (supra), questions must, where necessary, be asked to clear up points which have been overlooked or left obscure, the judge should discourage repetition and should intervene to ensure that he follows the points being made by advocates.  In our view, it can be added to these observations that it is the duty of the judge to ensure, at all times, that he understands the evidence of the witnesses and that the witnesses make responsive answers to the questions asked.  We further observe that while it is desirable that judicial questioning comes either at the end of cross-examination or, preferably, at the end of re-examination, there may well be circumstances in particular trials which make it proper for the judge to intervene by asking questions at much earlier stages.”[Italics added.]

25.In addressing the issue of judicial intervention, in both evidence and in the submissions of counsel during a trial in the District Court, in the judgment of this court in HKSAR v Wu Yui Yuen, Cheung JA said:[23]

“ Judges are not expected to sit passively during proceedings but rather are entitled to and are expected to exercise proper control over the proceedings so that ambiguities can be clarified and issues can be properly identified.”

26.In addressing the issue of judicial intervention during the evidence-in-chief of prosecution witnesses, where the “elicitation of evidence from its witnesses was far from perfect”, in the judgment of this court in HKSAR v Sin Wing Yi[24] McMahon J said:[25]

“ In those circumstances it was not only permissible, but it was the duty of the Judge to intervene if he could reasonably do so when the prosecutor’s examination of the witness was such as chronically to confuse the evidence, or delay it.”

McMahon J added:[26]

“ A judge…has an obligation to understand the evidence and quite often the most expeditious way of doing so is to ask if a few cogent questions himself of a witness. We note that only about a dozen questions were asked…”

Finally, McMahon J quoted with approval[27] observations made in the judgment of the Court of Appeal of England and Wales in R v Saville[28]:

“ Litigation, as the Lord Chief Justice pointed out during the course of argument, is not a game, although too many believe it to be. If the presiding judge perceives the risk of a case going off on a wholly wrong basis, whether because of some legal technicality which has been overlooked, or because of some lacuna in the evidence, it is not incumbent upon him to grit his teeth, remain silent and watch justice miscarry—for it is no less a miscarriage of justice when an accused person escapes conviction through inefficiency or carelessness on the part of the Crown than when he is convicted as a result of comparable error on the part of the defence. Rather it is the duty of a judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved.”

The testimony of Ms Srithong Tarinee

27.The testimony of Ms Srithong Tarinee began on the 22 January and finished on 29 January 2013.  Her evidence-in-chief was completed in the first one and a half days and cross-examination began the following day, 25 January 2013.  The weekend intervened before her testimony resumed on Monday, 28 January and concluded early on 29 January 2013.  It was at the outset of proceedings on 28 January that the judge informed counsel that over the weekend he had been “trying to sort of work out a chronology of what happened.”[29]  He said that as a result “there are a number of questions I want to ask in order to clarify the chronology” and suggested that it might be better if he asked them then, so that

“ ..you have an opportunity of pursuing anything that might arise, rather than leaving it until later and having to reopen the matters.”

The enquiry received an affirmative answer from counsel for the 2^nd defendant who was then cross-examining the witness.  It produced no response from any other counsel.

28.Thereafter, the judge embarked upon questioning the witness for a period of time, the transcript of which is encompassed by pages 218 L - 230 T.  It is to this passage of questioning by the judge that primary objection was taken by Mr McGowan.  In particular, objection was taken to the fact that what was said to be material adverse to the 4^th defendant was elicited in the course of the answers of Ms Srithong Tarinee, for example the document containing the photocopy of Ms Srithong Tarinee’s identity card, on which the 4^th defendant had written an acknowledgement dated 16 October 2011 and which she signed at his request, that a debt of $10,000 it was asserted that she owed to Li Chi Wang had been repaid.[30]

29.Relevant to the circumstances in which the judge found it necessary to intervene to pose questions was the course in which the evidence of Ms Srithong Tarinee had been elicited.  First, she gave evidence in Thai.  As is apparent from the transcript there were difficulties that flowed from interpretation.  Secondly, it is clear that the evidence was not elicited in chronological sequence.  That much is illustrated by the then unexplained testimony of the witness at a very early stage of her evidence-in-chief, when she was yet to describe having even entered the Lily Mansion premises, of the 4^th defendant having invited her to sign on a photocopy of her identity card.[31] Clearly, that was a reference by the witness to the events upon which she elaborated when questioned by the judge, and which resulted in the prosecution producing into evidence that document as exhibit P7.

30.Further, wholly unnecessary complications arose from the fact that counsel for the prosecution did not direct the attention of the witness to CCTV photographs taken from a camera that depicted the staircase leading up from the ground to the Room B 1/Floor premises until well into the second day of her testimony, notwithstanding that those photographs were the subject of Admitted Facts.[32] The photographs contained the times at which they were taken.  No issue was taken with her ready identification of the various defendants coming and going on that staircase.

31.From time to time, the judge indicated the difficulties that he had in understanding the evidence of the witness in context.  At an early stage, in respect of the issue of whether or not the 2^nd defendant had spoken to Ms Srithong Tarinee before the arrival of the 3^rd defendant, the judge explained, “…sorry to ask, I just want to get it absolutely straight.”[33]  Of the issue of whom of the defendants was present at the time of the various threats issued to Ms Srithong Tarinee and the demands made of her the judge said to counsel for the prosecution:

“ ..I mean if you’re suggesting that other people were party to what was going on you’re going to have to establish where they were at that particular time…it’s all a bit vague, is not going to get me very far.”[34]

32.Of the issue of the whereabouts of Ms Srithong Tarinee at the time her handbag was taken from her, the judge said to counsel for the prosecution, “well, it’s up to you how you deal with it, but…it doesn’t appear entirely clear, shall we say.”[35]  In Ms Srithong Tarinee’s evidence, without having described him earlier as being present as events unfolded, she said that the 4^th defendant was present when the 1^st defendant threatened to cut off her fingers.  That prompted the judge to say, “Now, we haven’t heard how he came.”[36]   Shortly afterwards there ensued the following interchange between the judge and counsel for the prosecution: [37]

“ COURT: ...suddenly we’ve had the 4^th defendant thrown into the pot if I can put it like that.

MR ARTHUR: Yes.

COURT: But we don’t know quite at what stage in relation to all these other things that have been going on; the theft.

MR ARTHUR: No, we don’t.

COURT: You’re suggesting he’s party to robberies and things?

MR ARTHUR: Well, I haven’t finished yet.

COURT: So we’re going to go back, are we?

MR ARTHUR: Well, we might have to. It’s not over.

COURT: it’s not coming out terribly chronologically, if I may say so.”

33.It is perfectly clear from the transcript that the theme of the judge’s interventions from time to time was to clarify or confirm the evidence of Ms Srithong Tarinee, so that he understood it in the context of the case.

34.There is no dispute that the judge’s questioning of Ms Srithong Tarinee at the beginning of proceedings on 28 January 2013 was substantial.  At an early stage, the judge identified one of the matters which he wished to clarify:[38]

“ So during the (one and a) half hour period between the time that the 3^rd defendant arrived before the 4^th defendant arrived, I just want to clarify what happened during that time.”

35.Then, the judge raised specific events with the witness and established who it was she said was present.  For example: that when Ms  Srithong Tarinee’s face was slapped by the 1^st defendant, the 3^rd defendant, but not the 2^nd defendant, was present; that the 1^st defendant had taken money from Ms Srithong Tarinee’s handbag and demanded the payment of a $10,000 debt before the arrival of the 4^th defendant.[39]

36.Next, the judge addressed Ms Srithong Tarinee’s evidence as to what happened on the arrival of the 4^th defendant:[40]

“ COURT: …did the 4^th defendant say anything, after he arrived, to you?

A. He just talk about the money.

COURT: To whom?

A. The money that my boyfriend owe his brother.

COURT: Now, we haven’t heard about that before. What money was that?

A. I don’t know, but he just said that. He just said that my boyfriend owe his brothers money.

COURT: His brother or brothers?

INTERPRETER: His brother.

COURT: His brother. And did he say how much?

A. $10,000

COURT: And so was he asking you to repay it, or what was he saying about the $10,000?

A. He asked me to do a contract.

COURT: And what you mean by that?

A. And it is the 3^rd defendant took my ID card into his bedroom. And there was a photocopy of my ID card. And below that paper there was something written in Chinese.

…….

COURT: Who wrote that?

A. The 4^th defendant wrote that.

……….

COURT: ... And did you know what it said?

A. I cannot read, but he read that to me.

COURT: Who is he?

A. The 4^th defendant.

COURT: …What did he read to you?

A.   

……….

A.    And but I already paid the money.

COURT:    He wrote down that you’d already paid the money?

INTERPRETER:  Right.

A.    So this debt already clear.  I have that contract at my home.  I could give your Honour later on in the afternoon.”

37.In due course, the document to which the witness had referred was adduced into evidence as exhibit P7.  As noted earlier, obviously that was the document to which she referred at a very early stage of her evidence-in-chief, but which counsel for the prosecution had not pursued in his questions.

38.Having elicited from Ms Srithong Tarinee that the 1^st defendant had told her that the $10,000 repayment which he demanded was money owed by her boyfriend to the 3^rd defendant[41], the judge established that she understood that the demand by the 4^th defendant for repayment of $10,000 was unrelated to the former demand.[42]  She said that latter demand was made before the 1^st defendant poked her with a billiard cue, placed the blunt side of a knife against her neck and told her to remove her jewellery and that the 3^rd and 4^th defendants were present as those events.[43]  Similarly, she said that the 1^st defendant had demanded $30,000 from her before those events occurred.[44]  She said that both the 3^rd and 4^th defendants were present when the 1^st defendant told Ms Srithong Tarinee that he would chop off her fingers if his demand for $30,000 was not met by noon.[45]

39.At the conclusion of his questions of Ms Srithong Tarinee, the judge said:[46]

“ I think I’ve clarified now what was troubling me in terms of the sequence. I know that’s probably raised other matters.”

In response, counsel for the prosecution raised the issue of the contract document referred to by the witness and through the court made enquiries of the witness as to how it could be obtained so that it could be put into evidence.

40.Obviously, the judge’s questions, although posed against a chronological framework, trespassed into other areas.  Although the judge addressed the chronological sequence of events by questioning the witness about what had happened before and after the arrival of the 4^th defendant, once Ms Srithong Tarinee said in evidence that the 4^th defendant had talked about money the judge pursued the matter with relevant questions, which elicited evidence as to the making of what the witness called a contract written out by the 4^th defendant which she signed.  As noted earlier, the witness had adverted to that evidence in her evidence-in-chief, but the matter had not been clarified by counsel for the prosecution.  It is to be noted that none of the experienced counsel raised any objection to any of the judge’s questions of the witness.

41.Although the large number of questions posed by the judge of Ms Srithong Tarinee at the commencement of proceedings on 28 January 2013 during her cross-examination was undesirable in itself, having regard to all the circumstances including the nature and content of the questions we have no doubt that an informed objective observer would reject the suggestion that the judge had entered the arena and whose questioning was partisan.  On the contrary, we are satisfied that the judge was doing no more than ensuring that he understood the evidence properly.

Conclusion

42.In the result, we are satisfied that there is no merit in the 4^th defendant’s grounds of appeal against conviction.

Sentence

43.As noted earlier, in determining the appropriate starting points to be taken for sentence for the robbery, the judge noted the difference in the roles of the 1^st and 4^th defendants, in particular having regard to the treatment meted out to Ms Srithong Tarinee. In sentencing the 1^st defendant, the judge described his culpability for the maltreatment of Ms Srithong Tarinee:[47]

“ In terms of responsibility of what happened that day, you are by far the most culpable. You were the person who induced Srithong to go to the flat that day and summoned others to assist you. You were the person who personally used physical violence and threats against her. You made her sit on the floor, in both the living area and in the kitchen area. You slapped her in the face when she didn’t give you the answer you wanted in respect of her boyfriend’s imprisonment. You did that to instil fear into her and to try to impress the others present of your physical supremacy. In the kitchen area you subjected Srithong to the series of humiliating and terrifying incidents to which I have already referred. You demanded that she give you her ATM card and her PIN number, which you subsequently used to withdraw the money from the ATM machine.

The robbery was of an entirely innocent woman.  It involved a number of aggravating features, the threats and violence to which I have already referred, the taking of her ATM card and demanding her PIN number and using it to withdraw money, the fact that you summoned a number of accomplices to assist you in the enterprise.”

Starting point

44.In the event, the judge stipulated starting point for sentence for the 1^st defendant of 7½ years for the offence of robbery.  By contrast, the judge stipulated a starting point of 6 years’ imprisonment for the offence of robbery for the 4^th defendant.

45.Although the 4^th defendant was not present at the time that the 1^st defendant slapped the face of Ms Srithong Tarinee, that having happened before he arrived at the premises, he was present when the 1^st defendant ordered her to remove her jewellery and escalated his demands for the payment of money to $30,000, reinforcing it with assaults with a billiard cue and a knife together with a fearsome range of threats, namely to chop off her fingers, shoot her private parts with a crossbow and to photograph her naked.  Of that role, the judge found that the 4^th defendant’s presence was “in order to reinforce the demands, threats and intimidation by the 1^st defendant in order to obtain money from PW1.”[48] Further, the judge found that the 4^th defendant had remained in the premises after the 1^st defendant left, “..to ensure that PW1 did not leave the flat until it could be confirmed that the sums demanded that had been received.”[49]

46.No issue was taken with the judge’s stipulation of a starting point for sentence for the 1^st defendant for the offence and robbery of 7½ years’ imprisonment.  In all circumstances, we are satisfied that the judge was correct in taking that starting point for sentence.  Notwithstanding the fact that most of the intimidating conduct meted out to Ms  Srithong Tarinee came from the 1^st defendant, it is to be remembered that the 4^th defendant persuaded a frightened Ms Srithong Tarinee to sign the receipt that he made which acknowledged payment to him of a debt of $10,000, said to have been owed by her to him, in circumstances in which they did not know each other and there was no such debt.[50] Further, we are satisfied that the judge was correct to determine that the 4^th defendant’s presence was “..to reinforce the demands, threats and intimidation” directed at Ms Srithong Tarinee by the 1^st defendant.

The criminal records of the defendants

47.The context in which the judge adverted to the criminal records of the 1^st and 4^th defendants was after he had stipulated the starting points to be taken, including that for the offence of robbery, and in his consideration of what, if any, discount was to be afforded to them for mitigating factors.[51]  In that context, he observed that neither of them was able to point to good character as being a mitigating factor.  As was apparent from the judge’s observations, the 1^st defendant had a “record for a number of criminal offences”, whereas the offences committed by the 4^th defendant were stale albeit including “two offences of violence in 2004”.

Conclusion

48.In the result, we are satisfied that the judge was correct in stipulating a starting point for sentence of 6 years’ imprisonment for the 4^th defendant for the offence of robbery, which sentence was one and a half years’ imprisonment less than that stipulated as the starting point for sentence for the 1^st defendant.  The difference in that starting point compared with that taken for the 1^st defendant reflected appropriately the difference in their culpability.

49.Accordingly, for the reasons set out earlier in paragraphs 40-41 we allow the 4^th defendant’s application for leave to appeal against conviction but, treating the hearing of the application as the hearing of the appeal, dismiss the appeal.  We dismiss the 4^th defendant’s application for leave to appeal against sentence.  

Mr Jonathan Man, ADPP, of the Department of Justice, for the respondent

Mr James McGowan, instructed by Tang, Wong & Cheung, for the 2^nd applicant

[1] Reasons for Verdict, paragraph 4.

[2] Reasons for Verdict, paragraphs 9-12.

[3] Reasons for Verdict, paragraphs 5-8.

[4] Reasons for Verdict, paragraphs 73-81.

[5] Appeal Bundle, page 265.

[6] Appeal Bundle, pages 266-7.

[7] Appeal Bundle, page 270.

[8] Appeal Bundle, page 272.

[9] Appeal Bundle, pages 271-2.

[10] Appeal Bundle, page 274.

[11] Appeal Bundle, page 274.

[12] Appeal Bundle, page 275.

[13] Reasons for Verdict, paragraph 3.

[14] Reasons for Verdict, paragraph 46.

[15] Reasons for Verdict, paragraph 60.

[16] Reasons for Verdict, paragraph 68.

[17] Reasons for Verdict, paragraphs 144-7.

[18] Reasons for Verdict, paragraphs 158-161.

[19] Reasons for Verdict, paragraphs 46-49.

[20] R v Yeung Mau Lam [1991] 2 HKLR 469.

[21] Appeal Bundle, pages 218-230.

[22] R v Yeung Mau Lam, page 473 C-H.

[23] HKSAR v Wu Yui Yuen (CACC 151/2011; unreported, 25 September 2012) at paragraph 32.

[24] HKSAR v Sin Wing Yi [2008] 3 HKLRD 352.

[25] HKSAR v Sin Wing Yi, paragraph 22.

[26] HKSAR v Sin Wing Yi, paragraph 24.

[27] HKSAR v Sin Wing Yi,paragraph 38.

[28] R v Saville (unreported; Criminal Appeal No. 4181/1991).

[29] Appeal Bundle, page 218.

[30] Exhibit P7.

[31] Appeal Bundle, pages 93 T - 90 4 M.

[32] Appeal Bundle, pages 154 D - 173.

[33] Appeal Bundle, page 102 B.

[34] Appeal Bundle, page 112 K-N.

[35] Appeal Bundle, page 116 B.

[36] Appeal Bundle, page 124 P.

[37] Appeal Bundle, page 125 L-U.

[38] Appeal Bundle, page 219 D.

[39] Appeal Bundle, pages 219-220.

[40] Appeal Bundle, pages 221-222.

[41] Appeal Bundle, page 224.

[42] Appeal Bundle, page 227.

[43] Appeal Bundle, pages 227-8.

[44] Appeal Bundle, page 228.

[45] Appeal Bundle, pages 229-230.

[46] Appeal Bundle, page 230.

[47] Reasons for Verdict, paragraphs 17-18.

[48] Reasons for Verdict, paragraph 159.

[49] Reasons for Verdict, paragraph 160.

[50] Exhibit P7.

[51] Reasons for Sentence, paragraphs 20 and 51.