Pak Wing-biu v. The Queen

CACC000299/1976

IN THE HIGH COURT OF HONG KONG

(APPELLANTE JURISDICTION)

CRIMINAL APPEAL NO. 299 OF 1976

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Coram: Trainor, J.

Date of Judgment: 29th April, 1976.

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JUDGMENT

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1. The appellant in this case was charged before a magistrate on four charges of blackmail and four charges of theft. He was convicted on the first charge of blackmail and the first charge of theft and was sentenced to 9 months' imprisonment on those charges, the sentences to run concurrently. He now appeals against his convictions.

2. I do not intend to go through the various grounds of appeal that have been filed in this case, I propose merely to deal with the case as presented by Mr. Sanguinetti who appeared on the appellant's behalf.

3. The background of the case would appear to be that somewhere about the 26th or 27th of December the appellant was arrested and subsequently brought to Wong Tai Sin to locate certain hawkers. He was identified by the hawkers and was brought back to the Police Station. At the Police Station he told the police officer in whose custody he was, that he had obtained money from the hawkers.

4. One of the hawkers gave evidence at the appellant's trial. He said that on the 14th of December 1975 he was approached by the appellant who told him that he had not yet had his meal and asked for $2. He said he gave this money to the appellant because very often "he walked to and fro at hawking stalls". It will be noted that the witness did not say that he walked to and fro at his, the witness's, stall but the general phrase of "hawking stalls" was used. The witness went on to say that the appellant said he would return the money. The witness said "As he had not had his meal, I gave it to him". He went on to say, as I interpret the record of proceedings, that according to his impression the appellant was very hungry. The witness said that he gave him the $2 because he stood in front of him and the "he might have disturbed my stall so I was afraid of him". So far as the first count and the second are concerned that was practically all the evidence. The witness did say, however, that the appellant caused a little disturbance.

5. It is interesting to note the evidence that followed. It pertained to the third and fourth counts against the accused; the witness was also the complainant in these counts. The witness said that the appellant came back three days later, said that he had got a job and that he needed money for food for two or three days. I quote the record:

"He genuinely asked me to lend them $10 and I did so. He promised to return the money on the 28th of December. He has not paid me back."

6. The appellant was arrested before the 28th.

7. The reason why that evidence is of interest is that the learned Magistrate acquitted the accused of the charge of blackmail and theft pertaining to that $10. So, with regard to the same complainant we find that the Magistrate was satisfied that on the second occasion when $10 was asked for as a loan he accepted that it was a loan, whereas he was not prepared to accept that there was anything in the nature of a loan on the first occasion despite the evidence of P.W. 2 that the appellant said he would return the money. Had it been the other way round one could see some support for a conviction on the third and fourth counts.

8. The offence of blackmail is the demanding of money with menaces. That word "menaces" has been dealt with in very many cases but perhaps the wording used in Reg. v. Clear (1968) 2 W.L.R. 122 at 130, best describes what constitute "menaces". It says:

"that they are of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand."

9. The learned Magistrate gave his reasons for coming to his conclusion saying that he took into account (1) that one of the reasons the complainant gave the money was that the defendant very often walked to and fro outside P.W. 2's stall. That was not quite what P.W. 2 said. What P.W. 2 said was that the appellant very often walked to and fro at hawking stalls; but it could hardly be said that walking to and fro in front of hawking stalls, or, indeed, even to and fro outside the witness's stall, was something that would cause a person of normal stability and courage to be influenced or made apprehensive. P.W. 2 said he was afraid of the appellant because "he might disturb my stall." It is not clear whether the witness meant disturb customers or damage the stall but there is not in the record anything to show that there were menaces within the meaning of the Clear case.

10. The second fact that the Magistrate said he took into account was that the defendant asked for the $2 for his "meal". For the defendant to ask for $2 for a meal would certainly be no indication of menaces but the Magistrate appeared to attach to the word "meal" a threat which it is difficult to see as existing. He attached that weight to the word by reason of what was said in the unreported case of R. v. Chan Man-hong Criminal Appeal No. 584 of 1974. There it is said that a cup of tea was a euphemism for a sum of money. In fact in that case the reference was to "tea money".

11. Another one of the factors that the Magistrate took into account was that one of the reasons P.W. 2 gave them money was that he thought the defendant might disturb his stall and, finally, he said that P.W. 2 alleged he was afraid of the defendant and that the defendant caused a little disturbance at his stall.

12. The offence of blackmail is a very serious offence but it does not differ from any other charge in that it must be established by the prosecution that the elements of the offence exist. It is not for the defendant to prove in cases such as this that he was looking for a loan, it is for the prosecution to prove that he did not seek a loan. It so happens that in the second alleged blackmail the learned Magistrate found that in fact the application was for a loan, or, to put it at its lowest, that it might well have been for a loan, and it was the same person who was involved. However, taking the overall picture as created by the evidence of the second witness, that is the complainant, it is very difficult to see where there were menaces that would have produced the effect that is described in the case of Reg. v. Clear.

13. There are many other reasons why this appeal should be allowed. I do not propose to dwell on them. What I have just dealt with is I think adequate to justify this appeal being allowed. I do so and order that the appellant be discharged forthwith.

Representation:

Mr. A.J. Sanguinetti (D.L.A.) asigned for appellant.

Mr. S.T. Graham, C.C. for respondent.