Wu Man-kwok v. The Queen

CACC000317/1978

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Coram: McMullin, J. in Court.

Date of Judgment: 25th May, 1978.

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JUDGMENT

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1. The appellant was tried together with three other persons for an offence of blackmail. He was convicted on the 30th of November and sentenced on the 14th of December, after the production of the usual reports, to a period of detention in a training centre. He lodged a notice of appeal on the 11th of January 1978 and reasons for the verdict were recorded by the learned magistrate upon the 27th of January 1978.

2. The Crown does not support the conviction in this case. It was the case for the Crown in the court below that this defendant had taken part in what was put before the court as a concerted attempt to extort money from the complainant. There were very considerable differences between the case put before the court by the two prosecution witnesses and those stories in their turn varied very considerably from the stories put before the court by each of the four defendants, who were then before the learned magistrate. I don't propose to enter into the evidence in detail.

3. Among the grounds of appeal two appear to me to be of outstanding merit. In recording his reasons for conviction and sentence the learned magistrate appears to have been under the impression that this appellant, who was the fourth defendant in the court below, had made an allegation in the presence of the complainant that he, the appellant, was a member of a triad society. There was no evidence to support that suggestion. The learned magistrate also in his findings or reasons for judgment stated that there was no doubt that the first defendant had reinforced the unlawful demand (of which evidence had been given) by a claim to be a member of the Fuk Kee Hing Triad Society and he comments :

"A claim this appellant never sought to repudiate ..."

The evidence made it clear however that this appellant was not in the presence of the first defendant and the complainant at the time when that alleged claim to be a member of a triad society was made by the first defendant. Those two misapprehensions in relation to the evidence would on their own be quite sufficient to make this an unsatisfactory and unsafe conviction. There were other matters in the evidence which I think should have received comment inasmuch as the stories put forward by the two principal prosecution witnesses are discrepant in certain respects a factor of especial importance when set against the entirely different story put forward by the defendants. I will not however descend into the particulars of those discrepancies. For the reasons given already, it appears to me that this conviction was unsafe and unsatisfactory and must be set aside.

4. At the time of his arrest for this alleged offence the appellant was already in trouble arising out of an earlier conviction for the theft of a bicycle. He had been put upon probation for eighteen months. The conditions in the probation order included a provision obliging him to reside at the Begonia Road Boys' Home. That term was subsequently enlarged to 2 ½ years. He was discharged from that home at some unstated date thereafter but subsequently failed to obey the terms of the probation order by failing to keeping in touch with his supervisor. He was brought before the Juvenile Court on the 10th of October 1977 and dealt with for a breach of the conditions of the order and sent to the Castle Peak Boys' Home as a result thereof. Under section 17(1) of the Reformatory Schools Ordinance he is liable to detention for a period not less than two years and not greater than five years.

5. In the present case the learned magistrate appears to have regarded the present offence as constituting a further breach of that order and he referred the appellant, having imposed a training centre order for the blackmail conviction, to the juvenile Court to be dealt with for that breach. However, he appears from the note on the record, to have made that order in reference to a charge of claiming to be a member of a triad society, an offence with which this appellant was not charged. That order, of course, must go together with the conviction which has been set aside in the present case. If any further order for detention was made as a result of it, it too must go. The result presumably will be that the defendant will now fall once more subject to the powers of those who have him in detention in respect of the previous breach of the probation order. I am asked to recommend his early release on grounds of compassion for his mother. As to that I would like only to say that I would hope that those who are charged with his custody at the present time should take into account the hardship to which he has been put by the present proceedings in considering the question of his release from detention in respect of the previous breach of the probation order.

Note : Subsequent to the delivery of judgment it was ascertained that no further order had been made by the Juvenile Court for breach of probation.

Representation:

A.J.J. Sanguinetti (D.L.A.) assigned for the appellant.

Gall, Crown Counsel for respondent.