So Sun Leung and Another v. The Queen
Read the full judgment text of CACC 261/1973 on BabelCite. This Court of Appeal judgment.
1. This is an appeal from the District Court. At the time of the commission of the offences with which the appeal is concerned, the first appellant, So Sun-leung, was an inspector of police in the Royal Hong Kong Police Force, and the second appellant, WONG Choi-sing, was an interpreter in a Magistrate's Court. The first appellant was found guilty of one offence of blackmail and three offences of bribery and one offence of aiding and abetting the second appellant pretending to be a public servan
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CACC000261/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 261 OF 1973 -----------------
Coram: Briggs, C.J., McMullin & Pickering, JJ. Date of Judgment: 5th November, 1973. ----------------- JUDGMENT ----------------- 1. This is an appeal from the District Court. At the time of the commission of the offences with which the appeal is concerned, the first appellant, So Sun-leung, was an inspector of police in the Royal Hong Kong Police Force, and the second appellant, WONG Choi-sing, was an interpreter in a Magistrate's Court. The first appellant was found guilty of one offence of blackmail and three offences of bribery and one offence of aiding and abetting the second appellant pretending to be a public servant. The second appellant was found guilty of one offence of blackmail and two offences of aiding and abetting bribery by the first appellant. He was also found guilty of soliciting an advantage and accepting an advantage and falsely pretending to be a public servant, namely a senior inspector of police. 2. Various grounds of appeal were submitted by Mr. Yu, counsel for both appellants. It will not be necessary to deal with these seriatim, for the same ground of appeal was advanced in respect of more than one of the charges. 3. The first ground is concerned with the first charge only, a charge of blackmail which refers to both of the appellants. Counsel for the appellants alleges that the judge misdirected himself in finding on the evidence that there was an unwarranted demand with menaces. 4. In the summer of 1972 a man named Chang was indebted to a firm called Ping On Textile Company for about $35,000. He paid this with $5,000 in cash, a cheque for $3,000 and a second cheque for the balance which was post-dated to a date in August. The post-dated cheque was dishonoured when it was presented for payment. The firm put the matter into the hands of one of their employees, LAI Yi-man. He contacted Mr Chang and demanded payment. Mr. Lai and Mr. Chang had various meetings and conversations about the payment of the debt and eventually Mr. Chang agreed to pay it in two instalments. He gave Mr. Lai two cheques, one for $10,000 dated the 25th September and one for $17,000 odd dated the 5th October. The cheque for $10,000 was dishonoured on being presented and so was the second cheque of $17,000 odd. Mr. Lai was determined to recover the money for his firm, so he consulted an uncle and the two appellants were then consulted in order to assist them in this object. 5. As has already been said, the first appellant is an inspector of police and the second appellant is an interpreter in a magistrate's court. On the night of the 17th October, Mr. Lai went to the factory where Mr. Chang carried on his business, met Mr. Chang and again demanded the money. Mr. Chang said that he could not pay. Obviously by previous arrangement, the two appellants and Mr. Lai's uncle arrived at the factory. It was after 10 o'clock at night. 6. The prosecution's story is that they posed as members of the Commercial Crimes Office of the Royal Hong Kong Police Force and threatened Mr. Chang, demanded money from him and, in fact, received $400 from him as a bribe. According to Mr. Chang, as soon as the appellants entered the factory the first appellant produced what he thought was an identity card and said that he was with the Commercial Crimes Office. He introduced the second appellant as "Inspector Ma". Mr. Chang said that their manner was unfriendly. Mr. Lai produced the dishonoured cheques and the first appellant asked if he, Mr. Chang, had made them out. Mr. Chang agreed that he had, thereupon the first appellant said that he had the right to arrest him. The second appellant signalled to Mr. Lai to leave which he did, leaving Mr. Chang with the two appellants and Mr. Lai's uncle. The appellants in effect demanded payment for the sum owed. Mr. Chang first asked the first appellant for forgiveness but the second appellant said "No" and suggested that he be taken to the police station. Mr. Chang then asked for time to pay and there was some discussion as to this. Eventually, Mr. Chang agreed to pay in two instalments. In his evidence he said he did this with reluctance and only because he thought that he would be taken to the police station if he did not. He thought that if the matter ended in a criminal action he might be sent to prison. The second appellant then left the factory and returned a few minutes later with the answer that the parties concerned agreed to the arrangements made. The first appellant then asked what was to be their reward. He demanded $1,500. There was some hard bargaining in which both the appellants took part. Eventually the sum of $400 was agreed upon. Mr. Chang said that during their bargaining the second appellant again threatened that he would be taken to the police station. He said that he only agreed to pay the amount because he thought that that threat was a genuine threat. Mr. Chang gave an I.O.U. for $400 to the first appellant and it was agreed that he should meet the appellants at a certain restaurant on the following day when he would redeem the I.O.U. with a cash cheque. The appointment was kept and the cheque for $400 handed over to the first appellant as planned. Mr. Chang said that the cheque was a cash cheque and it was not payable to the Ping On Textile Company. He said that it was paid as a reward to the appellants for not taking him to the police station. This account of the transaction between Mr. Chang and the two appellants was taken substantially from the evidence of Mr. Chang which was believed by the trial judge. 7. Mr. Yu pointed out that Mr. Chang was a businessman and had been in Hong Kong since 1949. He must, he argued, have therefore known the difference between criminal and civil liability and that to pass a cheque which was later dishonoured is not a criminal offence provided that fraud is not in question. 8. In cross-examination, an occasion was referred to when Mr. Chang was called to the police station in connection with another transaction concerning a dishonoured cheque. Mr. Yu suggested that this was evidence that Mr. Chang knew that such transactions were of a civil nature only. The facts of that transaction are somewhat obscure but in so far as they can be determined they are very different from the facts in this case, and we do not think that we can draw the inference from them which we have been invited to draw. Mr. Yu also pointed out the period of time during which the bargaining continued between Mr. Chang and the appellants and in the circumstances, Mr. Yu suggested, that Mr. Chang could not have feared arrest. Any threats that were uttered or any menaces that were made were empty threats or empty menaces. Mr. Yu pointed out that to succeed the prosecution must prove two elements (1) it must show that the complainant was affected by the threats or menaces, and (2) the threats or menaces must be of such a nature that a reasonable man would be affected by them. 9. We do not think that this is quite correct. The leading case of R. v. Clear(1) was a case which concerned the interpretation of section 30 of the Larceny Act 1916 which, of course, has now been repealed. That section dealt with the offence of demanding money with menaces. Part of the headnote reads:-
10. In the case of So Sun-fat(2) it was held that the Crown need not prove that the complainant was affected by the menaces, but his state of mind was a most material circumstance in deciding whether the menaces were of such a nature that a reasonable man would be affected by them. 11. We think that these two cases adequately express the law on this point. The matter must be looked at with the present circumstances of Hong Kong in mind. We consider that a reasonable man, in the sense that phrase is used in court, would be affected by the conduct of the appellants as depicted in the evidence of Mr. Chang. The time and place at which the incident occurred, the sudden appearance of the appellants with another man, the attitude adopted by the appellants towards Mr. Chang and the threats of arrest all add up to menaces of the nature referred to in the two cases mentioned above. And Mr. Chang said that his conduct was governed by the threats of arrest. The present case depends on the evidence of Mr. Chang and his demeanour in the witness-box and these were therefore of the utmost importance. In his judgment the trial judge considered both Mr. Chang's demeanour and his evidence most thoroughly. He saw and heard Mr. Chang and he accepted his evidence. We can see no reason why we should differ from him and this ground of appeal fails. 12. The next ground of appeal concerns the 2nd, 4th, 7th and 8th charges. These charges are all laid under section 4(2) of the Prevention of Bribery Ordinance. It will only be necessary to deal with one of these charges as the same point is taken in respect of each of them. 13. The particulars of the second charge state that the first appellant "being a public servant, namely an Inspector of Police, did ..... solicit from CHANG Lei-chue the sum of $1,500 as an inducement to or a reward for ..... the said (first appellant) abstaining from performing an act in his capacity as a public servant, namely, taking action against the said CHANG Lei-chue for issuing dishonoured cheques." 14. The ground of appeal reads as follows:-
15. The words in the charge to be stressed are "in his capacity as a public servant". Mr. Yu's point is that to secure a conviction the Crown must prove that the first appellant solicited in his capacity as a public servant. Now the whole case for the Crown was that the first appellant said that he was a police officer from the Commercial Crimes Office. Indeed, the trial judge found this as a fact. Mr. Yu said that it was in that capacity that the solicitation was made. The whole transaction took place on the basis that the first appellant was an officer from that particular part of the police force. Mr. Yu asked the rhetorical question - if the appellant had not clothed himself with the mantle of an officer from the Commercial Crimes Office would Mr. Chang have given the $400 to him at all? Mr. Yu concedes that the first appellant might have been found guilty of a different offence on the facts as accepted by the trial judge, namely, of the offence of obtaining money by fraud or at least attempting to commit such an offence. 16. We do not think that there is anything in this ground of appeal. The first appellant told Mr. Chang that he was a police officer. That was the point so far as Mr. Chang was concerned, namely, that the first appellant had the power to arrest him. And threatened to do so. All police officers have the power of arrest and it matters not from which section of the police force an officer may come. The point is covered by the case of Kong Kam-piu and Another v. The Queen.(3) 17. In that case the appellants were auxiliary police constables on duty. They went to a church hall where a dance was being held and threatened to break it up. They accepted $20 from the organizer of the party in order to refrain from so doing. The particulars of the charge were that the appellants solicited and accepted the money as an inducement to abstain from performing an act in their capacities as public servants, to wit, taking action in respect of an alleged offence against public order. It was argued that since no actual offence against public order was or could be alleged the money was not solicited or received by the appellants as an inducement to abstain from performing an act in their capacities as public servants. The appeals were dismissed. The court asked itself the following question when considering the corruptness of a gift given to or accepted by a government servant to abstain from a proposed course of action. The question is "Would that gift have been given or could it have been effectively solicited if the person in question were not the kind of public servant he in fact was?" 18. We agree that this is the correct test to apply. 19. The second appellant was not a police officer, he was a court interpreter, so different considerations apply. Undoubtedly, Mr. Chang thought he was a police officer and a police officer from the Commercial Crimes Office. We think that the point is covered by section 11 of the Prevention of Bribery Ordinance. It reads in part:-
20. As to the second point made by Mr. Yu under this ground of appeal, we think that it might well have been proper to have charged the appellants with the offence of obtaining money by fraud instead of the present charge of bribery, but we do not think there is anything in this because the two offences are not mutually exclusive so this ground of appeal fails. However, it is apparent from reading the fourth and fifth charges that the second appellant has been found guilty not only of aiding and abetting the first appellant of accepting a bribe of $400 but also he has been found guilty of accepting $400 as an advantage. There was, in this case, only one sum of $400. The fourth charge is laid under section 4(2) of the Prevention of Bribery Ordinance and the fifth charge is laid under section 3 of the same Ordinance. We think that these charges should have been laid in the alternative and it was wrong of the trial judge to have recorded a conviction for both offences against the second appellant. Therefore, we quash the conviction of the second appellant on the fifth charge, which is a charge which concerns him only. 21. We now come to the sixth charge. This is laid under section 2 of the Summary Offences Ordinance. 22. The second appellant was found guilty of falsely pretending to be a police inspector and the first appellant was found guilty of aiding and abetting him to commit that offence. On the 17th Ocotber when the two appellants went to see Mr. Chang at the factory, the first appellant introduced the second appellant as a police inspector. This took place in the sitting-room of the factory; photographs, which were exhibited, showed it to be a very small room. Mr. Chang said in evidence that he took the second appellant to be the senior officer of the first appellant. The second appellant who, in reality, was a court interpreter acted throughout the interview as a police inspector would be expected to act. And he clearly accepted the office attributed to him by the first appellant. It is, however, true to say that the second appellant never admitted that he was a police inspector in so many words. We think that there was ample evidence for the court to come to the conclusion that it did and this ground of appeal fails. 23. The first appellant was found guilty of bribery contrary to section 4 of the Prevention of Bribery Ordinance on the seventh and eighth charges. The particulars of the charges state that he, being a public servant without excuse solicited and accepted from Mr. Chang $5,000 as an inducement for him to abstain from taking action against Mr. Chang in respect of a dishonoured cheque. 24. The evidence clearly shows that the sum of $5,000 did pass to the first appellant from Mr. Chang but it is uncertain whether that money was in payment of his debt to the Ping On Textile Company or whether it was a bribe which was to be pocketed by the first appellant. The prosecution case was that the sum was paid by Mr. Chang as a bribe to the first appellant. Though this may be true, it is not clear from the evidence that it is so. There is no evidence of the reason why this sum was paid to the first appellant as an inducement. It would seem that it was the prosecution which allocated the sum to the particular purposes of a bribe rather than in payment of the debt. 25. We think that the convictions on these two charges cannot stand and that the first appellant must be acquitted on each charge. 26. There were other grounds of appeal with which we do not intend to deal. The result is that the appeal of the first appellant on the seventh and eighth charges are allowed and the appeal of the second appellant on the fifth charge is also allowed. The convictions on these charges are quashed and the sentences set aside. Otherwise the appeals of both appellants are dismissed.
Representation: P. Yu (Gordon Hampton & Winter) for both Appellants. Lucas, D.D.P.P. for Crown/Respondent. (1) (1968) 1 A.E.R. 74. (2) (1969) H.K.L.R. 342 (3) (1973) H.K.L.R. 120. |