So Ming v. The Queen
Read the full judgment text of CACC 165/1974 on BabelCite. This Court of Appeal judgment.
1. The appellant was charged, with another man, with nine offences of blackmail, the allegation being that within the space of half an hour on the morning of 30th January 1974, the two, at a public light bus terminus, had demanded with menaces the sum of $2.50 "terminus fee" from each of nine drivers of such vehicles.
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CACC000165/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 165 OF 1974 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 7th May 1974. ----------------- JUDGMENT ----------------- 1. The appellant was charged, with another man, with nine offences of blackmail, the allegation being that within the space of half an hour on the morning of 30th January 1974, the two, at a public light bus terminus, had demanded with menaces the sum of $2.50 "terminus fee" from each of nine drivers of such vehicles. 2. The appellant's co-accused was legally represented whereas the appellant was not. The solicitor for the co-accused made an application for separate trials. It is not apparent from the record whether that application related to a trial separately from the appellant, to separate trials of the nine alleged offences, or to both. In the result the learned magistrate treated it as an application for both and, having remanded the appellant in custody, proceeded to hear the first of the nine charges against the co-accused. Upon that charge the co-accused was acquitted whereupon the other eight charges were transferred for hearing before another magistrate. The result of the hearing in respect of those eight charges does not appear from the record and is, in any event, irrelevant to this appeal. 3. Three days after the hearing of the single first charge against the co-accused, the appellant was tried by the same magistrate upon all nine charges. He was convicted upon all nine and sentenced to eighteen months imprisonment upon the first charge, to eighteen months consecutively upon the second charge and on the remaining seven charges to eighteen months upon each charge, those sentences to be concurrent. It is not apparent from the record whether those sentences were to be merely concurrent with each other or also concurrent with one or other of the two terms of eighteen months imposed upon each of the first and second charges. It would appear however from the Recognizance to Prosecute the Appeal, prepared by the prison authorities, that those authorities have construed the concurrent sentences upon the third to ninth charges as not being concurrent with either of the terms imposed upon the first and second charges since the form refers to the appellant as having been sentenced to a total of 4 ½ years. imprisonment. 4. The appeal is against both convictions and sentences. 5. Dealing first with the appeals against convictions, the first ground of appeal is that it would be unsafe and unsatisfactory to uphold the conviction upon that charge in which one LAU Yam-fun was the sole witness. This man was the alleged victim in relation to the first charge and had given evidence before the same magistrate some three days previously when the trial and acquittal of the co-accused, upon this same charge, had taken place. For some reason which is not clear to me, the record of the proceedings placed before me contained the record of this trial and acquittal of the co-accused. Mr. Sanguinetti, for the appellant, argues that since that record is before me, I am entitled to consider its contents and, in particular, to take note of discrepancies appearing in the evidence of this same witness upon the two trials, taking place at an interval of three days. There were several such discrepancies, most of them minor but a serious discrepancy lies in the witness's assertion in the first trial that he handed over $2.50 upon demand whereas in the second trial he said that he had refused to pay and had driven off. 6. I am firmly of the opinion that the inclusion of the record of another trial in the record placed before me for the purposes of this appeal, was an error and that I should not heed the record of the trial of the appellant's co-accused. Mr. Sanguinetti states that if that is the case, the learned magistrate should nevertheless have given weight to the fact that in other proceedings before him three days previously, the same witness had given contradictory evidence. Had the appellant been represented, his counsel would have drawn out these discrepancies in cross-examination but, since the appellant was unrepresented, the learned magistrate should have recalled to mind the contradictory evidence and himself have put questions upon it. 7. In the first place I am not satisfied that the learned magistrate would necessarily have recalled the precise evidence given by this witness three days previously - but even if he had done so it would, as Mr. Caird rightly asserts, be improper and indeed dangerous for a magistrate to undertake research into another case and then, descending into the arena, undertake cross-examination upon the basis of that research. Such a course, as Mr. Caird remarks, could properly itself be made a ground of appeal. 8. On the basis of the evidence before the learned magistrate upon the trial of this appellant, there was ample room for conviction and this Court would not be justified in setting aside that conviction because of inconsistencies, unfortunately unexploited, between that evidence and evidence of the same witness in other proceedings relating to the same witness in other proceedings relating to the same facts. This ground of appeal must fail. 9. The second ground of appeal against conviction was that:
10. Section 10(2) of the Magistrates Ordinance reads, in its relevant parts,
11. Whilst it was thus permissible under s.10(2)(a) to try the nine charges together, Mr. Sanguinetti argued, the proviso to that subsection enabled the magistrate to order separate trials of any charge or charges if he was of the opinion that joint trials thereof would prejudice or embarrass the accused. There was nothing on the record to indicate that in regard to the appellant, he had ever considered the discretion available to him. On the other hand the co-accused had been faced with the same nine charges but had had the advantage of representation and when his solicitor had applied for separate trial of the charges, that application had been granted. If it had appeared to the learned magistrate that the co-accused was likely to be prejudiced or embarrassed by joint trial of the charges, the same consideration applied equally to the appellant but there was nothing to show that the learned magistrate had so much as considered exercising his discretion. Although the magistrate had found a menace to exist in each of the nine cases, in some instances the menace was by no means explicit and had some of those cases been tried separately and not against the background of other charges in which explicit menaces had been offered, it was probable that in certain instances no menace would have been found to exist. Thus the joint trial of the charges had prejudiced the appellant. To this argument Mr. Caird replied with a reference to s.10(2)(b) of the Ordinance. That subsection, he said, was unaffected by the previse, which applied to sub-s.(2)(a) only. Under sub-s.(2)(b) if, in one series of sets so connected together as to form the same transaction, more offences than one were committed by the same person, he could be charged with and tried at the same time for every such offence and the proviso permitting the magistrate to order separate trials of such charges did not apply. The approach to nine public light bus drivers, within the space of half an hour, constituted one transaction involving nine separate offences and the learned magistrate had had no discretion. 12. I think, with respect, that this argument is fallacious. Were it otherwise it would follow that the magistrate had had no discretion to order separate trials in the case of the co-accused - a course which he adopted, apparently without any opposition from the Crown. Subsections 2(a) and (b) relate to different circumstances. (a) concerns a person accused of more offences than one of the same or a similar character and precisely covers a case in which nine acts of blackmail are alleged. (b) concerns a case in which a series of acts are so connected together as to form the same transaction but result in more offences than one being committed by the same person. An example of (b) would be the forging and subsequent uttering, by the forger, of the forged document; or the carrying of a weapon suitable for inflicting injury and the use of that weapon for robbery and, possibly, simultaneous wounding. In these examples the offences are distinct offences, although arising out of the same transaction. In the former case they are offences of the same or a similar character and need not arise out of the same transaction. Nor in this case did they so arise. The approach to nine different drivers constituted nine different transactions just as much as if there had been an interval of a day or a week between each one. 13. That being so, it was open to the learned magistrate to order separate trials if he considered that joint trials of the charges would have prejudiced or embarrassed the appellant in his defence. He had previously, presumably upon those grounds, ordered separate trials of the same charges against the co-accused: but in the case of the appellant there is no indication that he ever considered the matter. Indeed had he considered the matter and expressed the conclusion that the appellant would not be prejudiced or embarrassed by joint trial of the charges, that conclusion would have been open to the criticism that he had reached a contrary conclusion in regard to precisely the same charges, based upon the same facts, levelled against the co-accused. It seems to me that there is merit in the complaint that the learned magistrate "failed to or did not properly exercise" the discretion contained in the proviso to para. (2)(a) of s.10 of the Magistrates Ordinance. 14. Consideration of the question whether or not the appellant was in fact likely to have been embarrassed by joint trial of the charges, leads me to the third ground of appeal which is that in relation to the "additional" charges, 2, 3, 5, 6, 7 and 8 (there was originally only one charge) there was no or no sufficient evidence of any menace by the appellant. 15. It is clear in the case of the original charge and "additional" charges 1 and 4 the demand was accompanied by a menace. Thus in the first of those cases the phrase "Be careful if you fail to pay", was an implied threat. In the last of those cases the phrase "If you do not pay you will be fucking well beaten" constituted the clearest of threats whilst in the intermediate case the menace was that if the appellant did not pay he would not be allowed to operate. It is said, however, on behalf of the defence that in respect of the remaining charges there was no menace and that any menace could only be implied from the learned magistrate's knowledge of the fact that in the three cases which I have instanced, there had in fact existed menaces. Thus in the case of the second additional charge the driver's evidence was that when the appellant and the co-accused came up to him the appellant said "Give me $2.50 terminus fee" to which the witness replied "Have you collected from the drivers in front? If they have paid, so will I. If not, I will not", upon the appellant telling the driver that the others had paid him this driver gave him $2.50. Here, counsel for the appellant argues, there was no evidence of any menace. To this Mr. Caird replies that the witness also said that when the appellant asked for the money he was "not friendly" and subsequently in his evidence he said that together with others he reported the man to the police as the defendant "had put me in fear". 16. The driver concerned in the third additional charge said that the appellant came up to him and said "I am collecting $2.50 terminus fee" and that he paid the appellant without saying anything. Again Mr. Caird's reply to the apparent lack of menace was that the witness stated that the appellant's manner was "unfriendly" and that "I was in fear because I knew if I failed to pay I would be beaten up" and also "I knew I would be in big trouble if I failed to pay". 17. In regard to the fifth additional charge the driver's evidence was that the appellant approached him and said "I am collecting terminus fee of $2.50" and that he, the driver, ignored the appellant, who then walked away. Mr. Caird points to the further evidence of the witness that "I was frightened at his manner which was ferocious". 18. In respect of the sixth additional charge the driver's evidence was that he was approached by two men, of whom the appellant was one, and that the appellant said to him "Give me terminus fee of $2.50" whereupon the driver said "Wait until later" and then left, as also did the appellant. Mr. Caird points to the further evidence that the driver said the appellant was "very fierce when he demanded the terminus fee" and "I was in fear so I decided that if I saw him again I would pay him. I feared he would beat me up if I did not pay. He said so". This last item of evidence was contradicted in cross-examination when the witness said "You did not say you would beat me this time but you beat me once before". 19. As to the seventh additional charge the driver concerned said that two men, one of whom was the appellant, came to him and that the appellant said "$2.50 terminus fee" and that, knowing that others had paid the appellant the witness paid him as he knew he would be in trouble if he did not pay. Mr. Caird again points to the further evidence of this witness to the effect that the appellant was "fierce and unfriendly. He was serious". 20. In regard to the eighth additional charge the evidence is the approach was similar to that in the last case which I have quoted and the witness went on to say that he paid because the appellant was acting in a fierce manner and that he feared violence if he refused although the appellant had not said what would happen if he, the driver, did not pay. 21. The common threads appear to be the absence of any vocal threat or threatening gesture, a measure of "fierceness" and an apparent understanding, on the part of those approached, that something unpleasant would happen to them if they did not pay. But what occasioned that understanding is far from clear and there is no evidence that it was anything said or done by the appellant other than the demand, apparently made "fiercely" or "ferociously" - whatever that may mean - for $2.50. But a demand, although unwarranted, is not enough to constitute the offence of blackmail. It must be accompanied by a menace and even in the case of one driver who claimed to have been hit on the face by the appellant some months previously when he had refused a similar demand, there was no evidence of any menace as such. 22. It seems to me that in the absence of any actual menace, the finding of guilt in these cases must have been influenced by the learned magistrate's knowledge of specific menaces made by the appellant in the three other cases before him. Thus it follows that the appellant was in fact prejudiced by the holding of joint trials and since there is no evidence that the magistrate ever considered the exercise of his discretion to order separate trials, these convictions must be set aside. With regard to the three charges in each of which a clear menace existed, the appellant was not prejudiced by the joint trial of these charges since had each been tried separately he must inevitably have been convicted upon each. 23. The final ground of appeal was that the learned magistrate admitted into evidence, evidence of the had character of the appellant when such evidence should have been excluded. The first complaint under this head is that upon the first appearance of the appellant and his co-accused before the Court and immediately before the pleas were taken, the prosecutor observed "This is a case of triad activity". That remark lacked any support from the evidence and in fact that was the only occasion throughout the trial in which the word "triad" was mentioned. No doubt these were triad-type activities but the remark, as Mr. Caird concedes, was improper and should never have been made. I cannot conceive however that the remark could possibly have had the slightest influence upon the result of the trial. The magistrate is a professional magistrate. He had made to him a casual remark which, it must have been apparent to him, proved to be unsupported by any evidence and I am confident that a magistrate of the experience of this learned magistrate would be totally uninfluenced by that remark. 24. The remaining arguments in regard to the alleged admission of evidence of bad character relate to "additional" charges 6 and 7 and as I have already held that the convictions upon those charges must be quashed, it is unnecessary for me to deal with those arguments. 25. Turning to the question of sentence I have already recorded that the appellant, having been convicted upon all nine charges, was sentenced to 18 months imprisonment on the first charge, to 18 months consecutively on the second charge, and on the remaining seven charges to 18 months upon each charge, those seven sentences to be concurrent although it is not apparent from the record whether they were to be merely concurrent with each other or also concurrent with one or other of the two terms of 18 months imposed upon each of the first and second charges. I have referred also to the prison authorities' interpretation of the sentences as totalling 4 ½ years imprisonment. 26. The appeal in respect of the first and first "additional" charges having failed, it remains for me to consider the consecutive sentences of 18 months imprisonment imposed upon those charges together with the sentence imposed upon the second to eighth additional charges which still stands in so far as it relates to the fourth of such charges upon which the appeal is also unsuccessful. 27. There is no doubt in my mind that the prison authorities have construed the learned magistrate's order as to sentences, incorrectly. That is not their fault for the order was loosely expressed in the following terms:-
28. However it could not have been the intention of the magistrate that the third term of 18 months imposed concurrently in respect of seven charges, should run consecutively to the two consecutive terms of 18 months imposed upon the first two charges for the result of that would have been to impose a term of 4 ½ years thus exceeding the limit of three years by which he is bound under s.57 of the Magistrates Ordinance. 29. This case underlines the importance of sentences being expressed and recorded with the utmost clarity. Had there been no appeal in this case, this appellant, sentenced to three years imprisonment, would have been kept in prison for 4 ½ years because the prison authorities so interpreted the ambiguous order of the magistrate. That interpretation was not only (presumably) not what the magistrate intended, but was wrong on general principles. It may be an appropriate moment to bring to the attention of the prison authorities the general principle that sentences passed on several counts run concurrently unless a specific direction is given that they shall run consecutively (Reg. v. LUI Shu-tong(1) per Hogan, C.J. at p.133). The fact, however, that the prison authorities adopted an interpretation which was wrong in principle, does not alter the fact that the magistrate's record should have made it crystal clear that the sentences upon the "additional" charges 2 to 8 were not only concurrent with each other but also concurrent with one or other of the sentences imposed upon the first two charges. 30. The present position is therefore that the appellant stands convicted of three charges instead of nine and on those charges has been sentenced to 18 months, 18 months consecutively and 18 months concurrently. Blackmail is a very serious offence and nobody with any experience of blackmail of this type can be under any illusions that the demand for a small sum - a demand repeated three times within half an hour upon different drivers - would have become a recurrent demand. The light bus drivers are to be congratulated for going to the police and exposing the appellant. 31. It remains the case that he now stands convicted of three offences and not nine and that fact should, I consider, be reflected in his sentences. The appellant has five previous convictions, none of them similar. His last conviction, which was for injecting a dangerous drug in a divan, was more than six years ago. In the circumstances I propose to set aside the sentences imposed upon him and to substitute upon the first charge a sentence of nine months imprisonment; upon the first "additional" charge a consecutive sentence of nine months, and upon the fourth additional charge a sentence of nine months, imprisonment to run concurrently with the sentence upon the first charge. In the result the appellant will serve a term of 18 months imprisonment instead of what was intended by the court below to be three years but had been construed by the prison authorities to be 4 ½ years. Representation: Sanguinetti (D.L.A.) assigned for appellant Caird, C.C. for respondent. (1) 1961 H.K.L.R. 129 |