Liu San v. The Queen
Read the full judgment text of CACC 215/1973 on BabelCite. This Court of Appeal judgment.
1. The appellant was charged with six counts of blackmail, contrary to s.23 of the Theft Ordinance, Cap. 210, and with two charges of criminal intimidation, contrary to s.2 of the Criminal Intimidation Ordinance, Cap. 205. He was acquitted on four charges of blackmail but convicted on the two remaining such charges and upon the two charges of criminal intimidation. He now appeals against those convictions.
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CACC000215/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 215 OF 1973 -----------------
----------------- Coram: Full Court (Pickering & Li, JJ.) Date of Judgment: 18th July, 1973. ----------------- JUDGMENT ----------------- Pickering, J.: 1. The appellant was charged with six counts of blackmail, contrary to s.23 of the Theft Ordinance, Cap. 210, and with two charges of criminal intimidation, contrary to s.2 of the Criminal Intimidation Ordinance, Cap. 205. He was acquitted on four charges of blackmail but convicted on the two remaining such charges and upon the two charges of criminal intimidation. He now appeals against those convictions. 2. The evidence to support the first conviction for blackmail came from the victim, KUNG Wang-yiu, a public light bus driver operating between Jordan Road and Kwun Tong and using, inter alia, the Hong Ling Road terminus. This witness testified that on the 24th September 1972 when at the Hong Ling Road terminus, the appellant told him that he had to give the appellant $2 (which was accepted upon the appeal as being a daily figure) or else the witness would not be allowed to park and collect passengers at that spot; and that if he insisted upon doing so he would lose his arms or his legs. The witness, who did not in fact pay the $2, said that he was very frightened and dared not converse with the appellant any further. He consulted other public light bus drivers and in unison, they resolved not to pay. He had paid the appellant nothing since, although he had continued to ply the same route. 3. The evidence supporting the second charge of blackmail was that of Mr. CHAN Cho-hing, also a public light bus driver, and was of a similar demand accompanied by the threat that if he continued to do business at that spot the appellant would smash the windows of his vehicle. This witness said that he was frightened and went away and picked up no more passengers at that spot on that day. 4. The evidence in regard to the first conviction for criminal intimidation came from the same Mr. CHAN Cho-hing and sprang from the same incident, which was why the learned judge made the sentence upon that charge concurrent with that upon the charge of blackmail. 5. The victim in the second charge of criminal intimidation was a Mr. LOK Chi-ming, likewise a public light bus driver, who testified that on the 16th October at the same site he was threatened by the appellant who told him that "This vehicle does not belong to our terminus. Do not join the queue to do business here" and threatened to beat up the witness if he continued to operate his bus from that spot. The witness said that he was very frightened because he had heard that the appellant was very fierce but, after consulting other public light bus drivers, he decided to ignore the appellant and continue to operate from that place. 6. The grounds of appeal in respect of the two blackmail charges are that the learned judge failed to consider whether or not in the circumstances the threats uttered amounted to menaces and failed to consider that the menaces did not in fact affect either of the complainants in those charges, having no influence upon their minds, each of them regarding the threats as empty and devoid of substance or intention. The ground of appeal in regard to the first charge of criminal intimidation is that the threat of injury to the vehicle of Mr. CHAN Cho-hing had no influence upon his mind since he regarded it as an empty threat devoid of substance or intention. A similar ground of appeal was lodged in regard to the second charge of criminal intimidation involving a threat of injury to the person of Mr. LOK Chi-ming. It was further complained in respect of all the charges that the learned judge had failed to evaluate properly the oral testimony, and that in all the circumstances of the case the convictions were unsafe and unsatisfactory. 7. Mr. Donnelly, for the appellant, complained that the learned judge had accepted the fact of the threats at their face value without considering whether they amounted to menaces. An example of the relevance of this was to be found in the case of Reg. v. SO Sun-fat and another (1) where the threat, uttered in the course of heated and unpleasant exchanges, had been held to amount to no more than an idle threat which occasioned its recipient nothing more than a momentary irritation or puzzlement. We would observe that the facts and the nature of the threat in that case were very different from those in the present case. The appellants in that case were police constables who had approached a boatman employed by the Trappist Monastery at Lantau, whilst his ferry was alongside the pier. One of the appellants asked the boatman for tea money, and, on his request being refused, threatened to have the boatman's ferry towed away by a marine launch. It was clear from the boatman's cross-examination that he regarded the demand for tea money and the threat as matters of no importance and that the menace had no influence on his mind since he knew that no boats had ever been towed away from that spot and regarded the threat as empty and devoid of substance. There is, we would observe, a very considerable difference between the situation of a boatman employed in the shadow of the peace and quiet of the Trappist Monastery, and a public light bus driver engaged in the cut and thrust activities of that highly competitive trade. Had the learned judge in the present case been sitting with a jury, it would no doubt have been necessary for him to direct the jury that they must consider whether or not the threats amounted to menaces, and the fact that in his judgment he made no specific reference to this matter highlights the still valid comment of the Full Court in Reg. v. LAM Tin-chung(2) to the effect that the closer a judgment comes to what would be expected in a summing-up, the less danger is there that an appellate court will find itself compelled to interfere. Nonetheless, the threats issued in the present case were of such a nature, and uttered in such circumstances, as to be quite capable of implementation in some degree or other, and we consider the learned judge was justified in considering them to be menaces without any over-detailed analysis of their precise nature. In this connection we find apt the words of Lord Reading, C.J., in R. v. Boyle and Merchant(3) where he said, in reference to s.45 of the Larceny Act of 1861:-
8. Provided that such a threat is uttered with apparent meaningfulness as, on the evidence, the threats in this case were, we would adopt that view and we have no hesitation in saying that the learned judge was entirely justified in regarding the threats made as menaces within the meaning of s.23 of the Theft Ordinance. 9. Mr. Donnelly, quoting the case of Reg. v. .Clear (4), said that words or conduct were menaces if they were such as were likely to operate on the mind of a person of ordinary courage and firmness so as to make him accede unwillingly to the demand. In that case it had been held that it was not essential to prove that the intended victim of the demand must himself have been alarmed by the threats held out to him. But in the case of SO Sun-fat and another v. Reg.(1), McMullin, J. had held that whilst the Crown need not prove that the intended victim was influenced by the menaces, his state of mind was a most material circumstance in deciding whether the menaces were of such a quality as to be likely to affect the mind of an ordinarily firm and courageous person. In that case McMullin, J. had gone on to say that where the victim has given evidence that he was not put in fear, the Crown must present the case on the basis that he is a person of unusual firmness or exceptional courage, and that a person of feebler character might have been affected by the threat. In the present case, Mr. Donnelly argued, although the complainants had said that they were in fear, their actions in continuing to operate their buses at the same place, belied their words and there was no evidence that they were persons of unusual firmness or exceptional courage so that there was nothing to show that the threats would have intimidated persons of ordinary firmness and courage. We find no substance in this argument. In our view the threats were such, and uttered in such circumstances, as to cause apprehension in persons of ordinary firmness and courage. The witnesses testified that this was the effect which the threats had upon them and the learned judge was entitled to believe that evidence although, on the authority of Reg. v. Clear(4) it was not necessary for the prosecution to show that the menaces had in fact any effect upon the minds of the recipients thereof. 10. We conclude therefore, that the threats did amount to menaces and that they did have the effect of putting the witnesses in fear, although it would have been immaterial if this latter effect had not resulted. The offence consists in the acts and intents of the appellant and it is quite beside the point to consider what the effect on the recipient of the menaces might be. That remark applies equally to the statutory wording relating to the charges of criminal intimidation as to that relating to the blackmail charges. 11. Further, we are unable to agree that the learned judge failed properly to evaluate the oral testimony. He considered all the evidence carefully and was satisfied beyond any reasonable doubt of the guilt of the appellant. It follows that we are unable to agree that the convictions were unsafe and unsatisfactory. The application for leave to appeal is therefore refused. 12. There was no appeal against sentence and although Mr. Donnelly invited us, without much conviction, to grant leave to appeal against sentence out of time, he conceded that he could put forward no particular reason for our doing so. We do not grant such leave. 13. One aspect of the charges of criminal intimidation remains for mention. These charges were expressed to be brought under s.2 of the Criminal Intimidation Ordinance, (Cap. 205). The offences were committed in September and October 1972 and at that date, the Criminal Intimidation Ordinance no longer existed as such, it having been consolidated into the Crimes Ordinance (Cap. 200) on the 19th November 1971. It follows that the appellant was charged with offences under an Ordinance which no longer existed either at the date of those offences or at the date of his trial. This fact went unobserved both in the court below and upon the appeal but became apparent to this court in the course of the preparation of this judgment. 14. We have asked ourselves if the error should be allowed to make any difference to the result of this appeal. Under Rule 1(3) of the Indictment Rules promulgated under s.16 of the Criminal Procedure Ordinance, (Cap. 221), where the offence charged is one created by statute, the statement of offence must contain a reference to the section of the statute creating the offence. Section 77(2) of the District Court Ordinance (Cap. 336) provides that a charge sheet in that court shall be in the form shown in the First Schedule to the Ordinance and that form provides for:-
that is to say, it follows the form of an indictment. Section 79(1) of the Ordinance reads as follows:-
15. It would therefore appear that the requirements of Rule 1(3) of the Indictment Rules, referred to above, should be complied with in the District Court and that reference in the charge sheet to the Crimes Ordinance was obligatory. The reference in fact made was to the then already defunct Criminal Intimidation Ordinance. That, however, was the full reach and extent of the irregularity. The particulars of offence set out were, if proved, just as adequate to describe an existing criminal offence as they would have been had the Criminal Intimidation Ordinance then still been in existence for s.2 of that former Ordinance has been reproduced word for word in s.24 of the Crimes Ordinance so that conduct which would formerly have constituted an offence under s.2 of the Criminal Intimidation Ordinance, still constitutes an offence under s.24 of the Crimes Ordinance. 16. In those circumstances it is impossible to say that the irregularity in any way prejudiced the appellant; that is to say it was not a "material" irregularity within the meaning of s.83(1)(c) of the Criminal Procedure Ordinance (Cap. 221). For that reason and because the point was not a "point raised in the appeal", it is unnecessary for us to go through the motions of applying the proviso to that section. 17. Care should however be taken in future to ensure that offences charged under the various Ordinances which have now been consolidated into the Crimes Ordinance, are expressed to be brought under the appropriate sections of that Ordinance. Representation: Donnelly (Gunston & Chow) assigned for the appellant Duffy, C.C., for respondent. (1) 1969 H.K.L.R. 342 (2) 1970 H.K.L.R. 105 (3) 1914 3 K.B. 339 (4) 1968 1 A.E. 74 |