R. v. Tsang Yip Fong and Another

CACC000264/1992

IN THE COURT OF APPEAL

1992, No. 264
(Criminal)

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Coram: Silke, Ag. C.J., Penlington & Nazareth, JJ.A.

Dates of hearing: 29 January, 23 March & 4 June 1993

Date of judgment: 18 June 1993

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J U D G M E N T

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Headnote : Blackmail: unwarranted demand: menaces to a 3rd party: not conveyed to intended victim

Silke, V.-P.:

2. This is the judgment of the Court.

3. Tsang Yip Fong - "D1" - and Tsang Shui Lee - "D2" - appeared for trial before His Honour Judge Moylan on a charge sheet containing 4 charges. Three of those charges concerned only D2 that is: the first: blackmail on 25th June 1991 at No.16, Fu Hing Street, it being alleged that he, together with two other persons unknown, with a view to gain for himself, made an unwarranted demand of $100,000 Hong Kong currency from Yi Wah, with menaces; the third: theft, the particulars of which alleged that, also on 25th June 1991 and at the same address, he stole $2,000 Hong Kong currency, the property of Yi Wah; and the fourth: a further charge of theft, also at the same day but at Room 1112, Po On House, Oi Man Estate, stole a cash cheque for HK$13,000 and a post-dated cheque for HK$85,000, the property of Yi Wah.

4. The second charge concerned both D1 and D2 and it was blackmail. Its particulars alleged that they, on 19th August 1991, on 1st floor, New Best Restaurant, Sheung Shui, New Territories, with a view to gain for themselves, made an unwarranted demand of $85,000 Hong Kong currency from Yi Wah, with menaces. D2 was convicted on all four charges and D1 was convicted on the single charge that related to him.

5. Having filed his application, timeously, to appeal against his convictions on 1st July 1992 D2 subsequently abandoned that application. Then, on 14th January 1993, D2 filed an application for leave to appeal against sentence out of time. That application was heard and determined, leave being refused on 21st January 1993. He then, on 9th March 1993, filed what purported to be an application for leave to appeal against conviction out of time. As the application in respect of conviction had, upon the abandonment, been dismissed, technically this application was incompetent. But, as is the course which this Court normally takes, the application was treated as one seeking to have the abandonment treated as a nullity. On 23rd March, when this matter was last before us, because of an issue which arose in respect of the second charge - and that only - we gave leave to D2, there being matters which could not have been known to him, and which were not raised by his legal advisers in the course of the trial proper, - to treat the abandonment in respect of that charge as a nullity on the basis of his informed mind not going with his act.

6. D1 seeks leave to appeal against his conviction.

7. The background facts were that Mr. Yi Wah operated a decorative work business. On 24th June 1991 he was offered some business by a man named Yuen. They met by arrangement at the Sun Ho Restaurant. From there Yuen took Mr. Yi to the flat where the decoration work was to be carried out. When he got there D1, D2 and an unnamed man were present. D1 told him that his, D1's, uncle was on the way to the flat with the plans. While they were waiting Yuen invited Mr. Yi to play cards. Mr. Yi was to share his bets with D1. It would appear, though the evidence of Mr. Yi was not, as the trial judge was fully aware, of the clearest - though he impressed the judge as being a totally sincere and honest man - that Mr. Yi joined in with the rest. When the game concluded D1 told Mr. Yi that there was a loss of $200,000. The uncle with the plans had not as yet arrived and D1 said he would go and see him having been informed that he was in a traffic accident. Yuen and the fourth man also left leaving behind Mr. Yi and D2. Mr. Yi started to leave but he was prevented by D2. Yuen and the fourth man returned and demanded that Mr. Yi pay his share of the loss. Mr. Yi was threatened. He was frightened and he paid $2,000 cash to D2. This however did not satisfy the group and Mr. Yi was taken to his home. There he was forced to draw two cheques, one a cash cheque for $13,000 and the second a post-dated cheque for $85,000. The men left with the cheques.

8. The cheque for $13,000 cash was cashed the same day. Mr. Yi, having reported to the police, countermanded payment on the post-dated cheque. On 2nd August and 14th August 1991 groups of men uttered threats to Mr. Yi at his home. His life was said to be endangered. On 14th August he was told to contact person named Li through a pager number which he was given.

9. Mr. Yi made another report to the police. A meeting was arranged with the person named Li at the Sun Ho - or New Best - Restaurant on 19th August. A woman police constable posing as Mr. Yi's daughter went with him to the meeting. D1 was present and identified himself as the Mr. Li whom Mr. Yi Wah had been told to and did contact. There were discussions about the payment. Mr. Yi said he would not pay unless D2 were present. D1 left the restaurant and returned shortly afterwards with D2. There was a demand that Mr. Yi pay the so called gambling loss. There were further discussions. A third man entered the talks demanding in a fierce manner that Mr. Yi "Pay. Pay." At some time in the course of the discussions Mr. Yi, who was a man of some age, left the group to go to the toilet. While Mr. Yi was absent D1 said to the purported "daughter" that if her "father" refused to pay "we will chop his hands off". D2 added words to the effect that her "father" had a lot of money and "pay and everything will be alright".

10. The evidence of that which occurred as recounted by the woman police constable was attacked in cross-examination - neither of the applicants gave evidence in the trial proper - but the trial judge found her to be a witness of the truth. He also found that the threat made to the "daughter" was in exactly the same terms as the threats made to Mr. Yi by groups of men at his own home on the two occasions to which we have earlier referred.

11. In addition to the evidence of Mr. Yi and the woman police constable, statements made by D1 and D2 were admitted in evidence. The trial judge found that the statement of D1 was partly exculpatory, partly inculpatory and partly silent on relevant issues. D1 admitted telephoning Mr. Yi to demand repayment of the gambling debt and admitted getting D2 to come to the New Best Restaurant at the time the threats were issued to the woman police constable. D2 admitted that he intended to cheat Mr. Yi. Further, while the words in relation to the "chopping off of the hands" were not said by him, his purpose was to get Mr. Yi to repay and "we only made it by word of mouth and would not do so".

12. There was ample evidence before the trial judge to find that the demands of D1 and D2 were unwarranted. It is with the "menaces" that we are concerned, though not with the fact that the words could amount to menaces. The issue is that they were never brought to the attention of Mr. Yi for D1 and D2 were arrested before Mr. Yi returned from the toilet.

13. We thought it right that both D1 and D2 be granted legal aid on the sole issue. There is no direct authority on the point - "Can a menace made to a third party and never communicated to the intended victim be sufficient to establish the blackmail of that intended victim - accepting that the demand was an unwarranted one."

14. We have had the benefit of submissions made to us by Mr. Macrae on the point on behalf of both D1 and D2. He has referred us to Treacy v. DPP [1971] AC 537 where, although the main issue was that of jurisdiction, the House of Lords held that where a man posted in the Isle of Wight a letter written by him and addressed to a Mrs. X in West Germany demanding money with menaces, the offence of blackmail had been committed by the appellant in that he had made the demand when he had written and posted the letter to Mrs. X.

15. In the course of the judgment of the Court of Appeal delivered by John Stephenson J., it was said at page 543:

" When the demand is made by word of mouth it is usually made at one time and place. If the intended victim is too deaf to hear it or unable to understand it, it is nonetheless made. Or a demand may be made orally over the telephone. In that case it is made and received simultaneously and it may be right to regard it as made at one time but in two places, as counsel for the Crown suggested. When the demand is made in writing, as in this case, it will usually be made at one time and place and received at another time and place. If the intended victim is blind or illiterate, the demand is nonetheless made and first made, in our opinion, not when it reaches the victim but when it leaves the demander beyond recall on its way to the intended victim whom it will reach in the ordinary course of things." (Emphasis supplied)

16. In his speech in the House of Lords, Lord Reid at page 551 rejected the idea of a continuing demand - that is one which began when the letter was posted and ended when it was received. In his view he did not consider that Treacy was guilty of the full offence the moment he sent off the letter. Lord Morris of Borth-y-Gest took a similar view. He was of the opinion, expressed at page 556, that:

"There must be the necessary intent and the demand must have the qualities described in the words of the section, but the offence consists in making the demand. That is a single act taking place at one time and in one place. I cannot therefore accept the contention of the prosecution that the act of the appellant can be said to have consisted of substantial elements in this country and substantial elements in Germany. There is nothing in the section to warrant the suggestion that the posting of a letter is a 'constituent element' of offence. Nor can I accept the view that the appellant's demand was made both in England and in Germany."

17. He also rejected the concept of a continuing offence. The demand, he thought, was made upon receipt in Germany and therefore the English courts had no jurisdiction.

18. But Lords Hodson, Diplock and Guest were of the firm view that Treacy had made his demand when he wrote and posted the letter to Mrs. X. There were various references to the possibility of an attempt to blackmail arising but, as the court was concerned basically with the jurisdictional point, all three Lords of Appeal found the English courts to have jurisdiction on the basis that the demand was made when the letter was posted. Lord Diplock concluded his speech with these words:

"My Lords, all that has to be decided upon this aspect of the instant appeal is whether the appellant 'made a demand' when he posted his letter to the addressee. In the course of the argument many other and ingenious ways in which a blackmailer might choose to send his demand to his victim have been canvassed, and many possible, even though unlikely, events which might intervene between the sending of the demand by the blackmailer and its receipt and comprehension by the victim have been discussed. These cases which so far are only imaginary may fall to be decided if they ever should occur in real life. But unless the purpose of the new style of drafting used in the Theft Act 1968 is to be defeated they, too, should be decided by answering the question: 'Are the circumstances of this case such as would prompt a man in ordinary conversation to say: 'I have made a demand'?'"

19. Mr. Saw, who appears with Miss Papadopoulos for the Crown, has urged us to adopt the test which comes from the judgment of John Stephenson J. in the Court of Appeal in the portion emphasised of the passage already set out.

20. He also urges us to accept that the offence consists in the "acts and intents" of the demander. He cites in support a Full Court decision: Liu San v. The Queen, Criminal Appeal No.215 of 1973 in which Pickering J. (as he then was) delivering the judgment of the court had this to say at page 5 in respect of an argument that the threats made in that case were such that they would not have intimidated persons of "ordinary firmness and courage".

"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." (Emphasis supplied)

21. We think it unnecessary to consider a passage in Parry on Offences against Property (The Criminal Law Library No.7) paragraph 3.12 at page 144, where, in considering the requirements of a "demand with menaces", he gave certain examples none of which go precisely to the issue here.

22. Undoubtedly there was an unwarranted demand. Undoubtedly menaces were uttered. The applicants were under the firm impression that the woman police constable was the daughter of Mr. Yi Wah. In the ordinary and natural course of things they would have expected her to be concerned for the welfare of her "father" and that she would communicate to him that which was said. That the threats issued through her to Mr. Yi Wah were never directly communicated to the latter was entirely accidental, their communication being frustrated by the arrest of D1 and D2. In our judgment, both the applicants would, in the words of Lord Diplock, have said "I have made a demand." Both clearly intended to and did make an unwarranted demand with menaces. That demand, to paraphrase the words of John Stephenson J. at page 543 of Treacy, had left them beyond recall and were intended to be conveyed to Mr. Yi Wah.

23. We deal with this case on its facts. There may well be other cases which will fall to be decided in relation to their own particular facts but in our judgment here there was evidence of the intent in the minds of the blackmailers; there was evidence that they had carried that intent into effect and there was evidence that, in the ordinary and natural course of things, the demand would have come to the attention of the intended victim. We consider the offence of blackmail to have been made out and that the judge, in finding the applicants guilty of the second charge, came to a very proper conclusion.

24. The issue being a matter of law, we have treated this hearing as the hearing of an appeal. We dismiss the appeal.

Representation:

Andrew Macrae, Esq. (D.L.A.) for both Applicants

D.G. Saw, Esq. and Miss A. Papadopoulos for Crown/Respondent