HKSAR v. Pang Shun
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CACC193/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 193 OF 2013 (ON APPEAL FROM DCCC NO 967 OF 2012) _______________________ BETWEEN
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____________________________________ REASONS FOR JUDGMENT ____________________________________ Hon Yeung Acting CJHC (giving the Reasons for Judgment of the Court): Introduction 1.The applicant (Pang Shun) appeared before Judge Woodcock (the judge) in the District Court on an indictment consisting of 5 charges. The first 4 charges (cheating at gambling, robbery, criminal intimidation and false imprisonment) were directed at the applicant alone whereas the 5th charge (conspiracy to cheat at gambling) was directed at the applicant and four others. 2.The prosecution offered no evidence on charge 5, leaving only charges 1 to 4 to which the applicant pleaded not guilty. 3.On 27 May 2013, the applicant was convicted of charges 1 to 4 and sentenced to a total term of four years and six months’ imprisonment. 4.Represented by Mr Eric Kwok SC and Mr Jacky Jim, the applicant sought leave to appeal against conviction. On 14 May 2014, we dismissed the application and indicated that we would hand down our reasons in due course. This we now do. The Prosecution Case 5.The prosecution suggested that this was a typical Tin Sin Kuk case when the victim was lured, on the pretext of business opportunity, to meet the culprits and then to take part in gambling. The whole thing was a scam and the victim ended up losing a large sum of money and was threatened to pay up. 6.The victim (Mr Sun Zhigang), a director of a property company in Anhui Province, was visited in May 2012 by someone who claimed to be a Mr Kong (Kong) of Harbour Centre Development Ltd in Hong Kong. Kong told the victim that he intended to purchase a shopping mall through the victim’s company and he invited the victim to come to Hong Kong for further negotiation. 7.The unsuspecting victim came to Hong Kong on 18 June 2012 and Kong picked him up at the airport and took him to a Tsimshatsui hotel. The next day, on 19 June 2012, Kong escorted the victim to a flat at Block 10 in Constellation Cove (the flat) in Tai Po purportedly for a business meeting. 8.Shortly after 11 am on 19 June 2012, the victim and Kong arrived at the flat where he met a Mr Kang (Kang) purportedly from Singapore and a Mr Wu (Wu), said to be Kong’s superior. Within half an hour, another man arrived and introduced himself as Ho Po‑shing (Ho). The name card that Ho gave to the victim indicated that he was the Chief Executor Director of Casino Marina/Golden Palace VIP Room. 9.Wu then discussed and reached agreement with the victim on a RMB130 million deal before inviting him to take part in a card game of “show-hand”. Despite his initial reluctance, the victim was persuaded to take part in the game with Wu, Kang and Ho, thinking that it was for fun or only involved small stakes. 10.However, after several rounds, it was suggested that the victim had lost $10 million and the victim was asked to pay up at once. The victim was surrounded by the three culprits and prevented from leaving after Wu left first. 11.Kong took away the victim’s phone and together with Ho instructed the victim to call his company to transfer money to his personal account. Ho then threatened the victim by saying that he was a member of the special force in the army, he liked hunting and there were always dead bodies in the sea of Hong Kong. The victim said Kang also took part in threatening him. 12.Fearing for his safety, the victim arranged for $5 million to be transferred from his company account to his personal account that already had $200,000, having told Ho that $5 million was the maximum amount that he could remit from his company account. 13.Ho and Kong then snatched the victim’s handbag and took away $50,000 and the bank card. Ho left the premises with the bank card and returned a few minutes later. Ho further ordered the victim to disclose his password and the victim complied. Ho then talked to someone over the phone about the bank card and the remittance of money. 14.The victim was detained in the flat for nearly five hours before Kong escorted him back to Kowloon by taxi. The victim jumped out of the taxi before it reached the hotel and left Hong Kong immediately without making a report to the police as he was concerned about his own safety. The CCTV footage showed that the victim and Kong left Block 10 of Constellation Cove at 4.03 pm. 15.The victim later found out that between 4.30 pm and 5 pm on 19 June 2012, the entire sum of $5.2 million in his personal account was transferred to another account on three separate occasions in Shenzhen with the use of his bank card. 16.The victim returned to Hong Kong on 26 June 2012 and made a report to the police, but was told that he should locate the place where the incident occurred first. The victim, with help from his friends, was able to locate the flat in Block 10 of Constellation Cove. 17.The victim gave his first, second and third witness statements on 26 June 2012, 6 July 2012 and 25 July 2012 respectively; and the fourth and fifth ones on 28 August 2012. 18.The police set up an observation post on 15 August 2012 to observe the flat. The police ultimately entered the flat and arrested, inside the flat, three men including the applicant. The police seized $565,800 in cash and a lot of playing cards on a coffee table. The police also seized four mobile phones from the applicant and a resident card relating to the flat in the name of HaYat-sun. 19.A contract, described as a letter of intent, was found on the sofa and an identical document was found in a red plastic bag hidden in the false ceiling. The red plastic bag also contained many name cards. Those name cards were almost identical to the name cards given to the victim on 19 June 2012 with only slight difference in the name and the contact number. There were also four sets of poker cards in the red plastic bag. 20.The name cards and the letter of intent were all found to be false as the companies concerned did not issue them and had no idea of their origins. 21.The flat was leased by its owner to Wong Sin-cheung at the monthly rent of $28,000 from 3 March 2012 to 2 March 2014. 22.At a properly conducted identification parade held on 28 August 2012 at Ma On Shan Police Station, the victim identified actors as Wu and Kang, but positively identified the applicant as Ho. The victim said Ho was the tallest amongst the culprits and that had left a deep impression on him. The Defence Case 23.The applicant did not call any witness, but suggested that the victim had wrongly identified him as Ho. While it was not the defence case that the applicant was in the flat on 19 June 2012, the defence, based on the victim’s statements to the police, suggested that the victim lied and had exaggerated what had happened. 24.The defence, through cross-examination, further suggested that the victim was a gambler who, having lost money, was utilizing the Hong Kong police in order to recoup his loss. It was pointed out to the victim that he did not describe Kang and Wu in his 2nd witness statement and in his 3rd witness statement, he described the applicant to be of 1.8 m tall. It was also pointed out to him that the contents of some of his witness statements were not entirely consistent with his evidence. 25.It was emphasized that the victim’s identification evidence was weak when he had wrongly identified two actors before picking out the applicant; that the applicant was 1.7 metres tall, but Ho was described as 1.8 metres tall; that there was no DNA or fingerprint evidence linking the applicant to the offences in question. 26.The defence argued that the exhibits seized on 15 August 2012 from the flat should not be admitted as evidence as they were not connected with the victim’s evidence. The Judge’s Findings 27.The judge ruled that the exhibits seized on 15 August 2012 in the flat were admissible as evidence. The judge analysed in details the contents of the victim’s statements to the police, with reference to what were said to be discrepancies in those statements. The judge rejected the suggestion of discrepancies and concluded that the first statement was brief because the police initially refused to open a file unless the victim was able to identify the flat. 28.The judge pointed out that after the victim, with the help of a friend, managed to locate Constellation Cove but not the flat he gave the second statement which was also brief. The victim gave more detailed statements after the case was transferred to Tai Po District and then Regional Crime Unit, NT. 29.The judge rejected the suggestion of material discrepancies between the victim’s statements to the police and his evidence. The judge concluded that the victim was a truthful and reliable witness and that he had related in his evidence what took place. The judge rejected the suggestion that the victim had lost money in gambling and made a false report in order to recover his loss. 30.The judge found that there had been a premeditated and well‑planned scam to lure the victim to Hong Kong in order to defraud him of a large sum of money. 31.The judge emphasized that beds in the flat where the applicant was arrested did not even had bed linen and the exhibits seized therein were capable of being tools to be used in a scam. The judge pointed out that the name cards hidden in the flat were similar to those given to the victim by the culprits on 19 June 2012. The judge took the view that the gambling paraphernalia, the fake business cards and documents were capable of supporting the victim’s evidence. 32.The judge, having reminded herself that the case against the applicant depended entirely on the correctness of the identification of him by the victim and that there was a special need for caution, concluded that Ho had left a deep and terrible impression on the victim because of the way he threatened him. The judge pointed out that the victim was sure that the applicant was Ho. The judge took the view that the victim and Ho “must have been face to face and close up often” and that the lighting would be good enough to see everything clearly. 33.The judge then examined the circumstances in which the victim identified the applicant, including the fact that the victim was with the applicant for hours in the same room, facing each other at close proximity with interaction and conversation; that the applicant threatened the victim and snatched his bag to take away his $50,000 and the bank card and then demanded his PIN number; that the applicant asked the victim for the details of the bank transfer and procedure before repeating them to another on the telephone in the presence of the victim. 34.The judge concluded that the applicant made the most impression on the victim and that the victim had correctly identified him as the culprit – Ho who had robbed, threatened and falsely imprisoned him on 19 June 2012. The judge said she was satisfied that the identification of the applicant was of good quality and safe, reliable and solid. She said she was sure that the victim had a terrible and deep impression of the applicant and when he saw him again two months later, his identification of him was good and not shaky. 35.The judge pointed out that the applicant was found in the flat; that he had a resident card relating to the flat on his person, but not in his name; and that business cards similar to the one given to the victim were found hidden in the ceiling of the flat. The judge said those evidence was capable of supporting the victim’s evidence and strengthened the prosecution case against the applicant. 36.The judge found charges 1 to 4 proved to the required standard that she therefore convicted the applicant accordingly. Grounds of Appeal 37.Mr Kwok SC did not maintain the suggestion that the victim was a dishonest witness and accepted that the judge was entitled to find him to be an honest witness. Mr Kwok raised many grounds of appeal, all relating to the identification of the applicant by the victim as Ho. In his written submissions, Mr Kwok submitted that the judge had wrongly assumed that the victim and Ho “must have been face to face and close up often” and that “the lighting would be good enough to see everything clearly” when there was no evidence to such an effect. 38.Mr Kwok emphasized that the victim, who also had similar interactions with others in the flat, had wrongly identified Wu and Kang, yet the judge had failed to pay any or any sufficient regard to such mistakes when she concluded that the victim had correctly identified the applicant as Ho. Mr Kwok suggested that the victim had similar, if not more, interactions with Wu and Kang and thus more opportunities to observe them. 39.Mr Kwok pointed out the victim’s initial failure to correctly identify the location of Constellation Cove and to pick out the applicant in the dock as well as the fact that he had described Ho’s height as 1.8 metres when that of the applicant was just 1.7 metres, the same as the victim himself whereas Kong was a much taller man. 40.Mr Kwok argued that Ho should not be the one who gave the victim the most terrible impression when others also threatened him and snatched his cell‑phone as well as his bank card. Mr Kwok suggested that the victim must be frightened and his identification of the applicant was made in difficult circumstances. The suggestion was that the identification of the applicant as Ho in such circumstances was not reliable. 41.Mr Kwok also argued that the judge was wrong to conclude as she did that the following items were capable of supporting the victim’s evidence of identification, namely:
42.Mr Kwok concluded by suggesting that in all the circumstances, the conviction against the applicant, based on the identification of him by the victim is unsafe and unsatisfactory. Discussion 43.Despite the many grounds of appeal advanced by Mr Kwok on behalf of the applicant, the only question boiled down to whether the victim had correctly identified the applicant as Ho who together with others had cheated him, robbed him, threatened him and falsely imprisoned him on 19 June 2012. 44.Mr Kwok had identified many of the faults in the identification of the applicant as Ho by the victim. With respect, the judge was fully aware of them and had dealt with them in great details. Mr Kwok was just regurgitating what had already been argued before the judge. 45.According to the victim, he was together with the applicant in the flat for five hours, between 11 am and 4 pm. The applicant played cards with him and spoke to him. When the victim tried to leave the flat, he was prevented from doing so and was demanded $10 million. 46.The applicant threatened the victim by saying that he had been a member of the special force in the army, liked hunting and in the seas of Hong Kong there were always dead bodies. Because of the applicant’s threat, the victim agreed to have money remitted to his account and that with the bank card on his person, the most he could have remitted was $5 million. 47.Upon being told that the victim could only raise $5 million, the applicant snatched his bag and took away $50,000 cash to put into his own bag. He took the victim’s bank card outside the flat, obviously to give it to someone else. He then returned and demanded the victim disclose the PIN to his bank account and the procedure as well as the details of when the $5 million would be remitted. Together with Kong, the applicant asked the victim to call his office and have money transferred to his personal account. 48.By the time the victim was detained and threatened, Wu had left, leaving behind Kang, Kong and Ho to deal with him. Whilst the victim did say that Kang had also threatened him with Ho and that Kong, together with Ho, had snatched his handbag together with its contents, it was clear that Ho was the most active participant in dealing with the victim. 49.In our view, the judge was entitled to conclude that “the victim was with Ho for hours in the apartment. They were in the same room most of the time. They must have been face to face and close up often. There was much interaction and conversation.” The judge was entitled to conclude as she did that the applicant must have left a deep impression with the victim. 50.The incident took place in the flat between 11 am and 4 pm and contrary to Mr Kwok’s written submission, the judge, in our view, was also entitled to conclude that the lighting in the flat would be good enough to see everything clearly as one would expect in a home during daylight hours. 51.The offences took place in the flat and the victim was able, not without difficulty, to trace its address and report it to the police. The flat, rented at the monthly rent of $28,000, was not intended as a residence, but was obviously intended to be used in connection with the Tin Sin Kuk scam with the presence of the relevant items and equipment. Mr Kwok agreed that no other reasonable inference could be drawn. 52.Not only was the applicant present in the flat at the time of the search by the police, he had a resident card relating to the flat in the name of someone else. The applicant was clearly related to the flat. The judge was entitled to take the view that such evidence was capable of supporting the victim’s evidence and strengthening the prosecution case against the applicant. 53.The case turned on the reliability of the victim as a witness of truth. The judge had the chance to observe the victim when he gave evidence. She had all the evidence as well as counsel’s submissions before her. The judge was aware of the defence’s complaints on the weakness of the victim’s identification evidence against the applicant. 54.We have considered the evidence carefully and we were satisfied that the judge was entitled to conclude as she did that the victim had correctly identified the applicant as Ho, one of the culprits who had taken part in cheating, robbing, threatening and falsely imprisoning him on 19 June 2012, particularly when there was no evidence from the defence to challenge, contradict or explain the prosecution evidence against him. Conclusion 55.We did not find the conviction against the applicant in any way unsafe or unsatisfactory, and we therefore dismissed the application for leave to appeal against conviction.
Mr William Tam, DDPP of the Department of Justice, for the respondent Mr Eric Kwok, SC and Mr Jacky Jim, instructed by Lim & Lok, for the applicant |