HKSAR v. Law Kwok Sang

CACC000330/2001

CACC 330/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 330 OF 2001

(On Appeal from DCCC 405/2001)

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Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J in Court

Date of Hearing: 9 July 2002

Date of Judgment: 9 July 2002

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

The background

1.The Applicant, Law Kwok Sang and another man named Lam Che Kwong, D2, were jointly charged with two offences of blackmail, contrary s.23 of the Theft Ordinance. They both pleaded not guilty to those charges but were convicted of them after trial before H H Judge Z E Li in the District Court on 15 August 2001. They were each sentenced to 3 years imprisonment on each count to run concurrently.

2.After conviction and sentence both filed notices applying for leave to appeal against both conviction and sentence. D2 has abandoned both of his applications. The Applicant has abandoned his application to appeal against his sentence, but not against his conviction. In this appeal, he is represented by Mr Philip Ross of Counsel.

Application to appeal against conviction only

3.The Applicant relies on only one ground of appeal; that in relation to both convictions, the judge erred in drawing an inference that the Applicant made menaces when an inference inconsistent with guilt was reasonably open.

4.The prosecution case was that PW1 was the Project Manager of a construction site in Minden Avenue in Tsim Sha Tsui. On 23 March 2001, the Applicant and D2 came to PW1's office at that site. D2 said to PW1 the Applicant and he were doing valet parking nearby and they had not caused any trouble to the site since it started. He then said that their 'big brother' ('lo ding' in Cantonese) had just passed away and they would like to arrange a pompous funeral for him, and they would like PW1, or his company, to give them some condolence money. PW1 was alarmed by this demand, he said that he had to seek his superior's instruction and told the two of them to come back the next day. After the two had left, on its superior's instructions, PW1 made a report to the police.

5.On the following day, 24 March 2001, D2 and the Applicant came to the site again. They were met by PW1 and PW2, who was a Police Sergeant posing as PW1's supervisor. D2 made the same demand, repeating what he said the day before. When asked why he made the demand, D2 said it was because they had no money. D2 did not specify how much money was wanted. When asked what would happen if the demand was not met, D2 said they would go. D2 and the Applicant then made to leave, but were arrested by two other police officers who were waiting outside the office.

6.The Applicant was present throughout those meetings and accompanied D2 when the demands were made and echoed support for what he said.

7.It was not suggested that either D2 or the Applicant spoke in a fierce manner and the atmosphere of the two meetings was said to be 'normal and civilized'.

8.A triad expert gave evidence that the phrase 'big brother' or 'lo ding' are terms usually referred to senior members of Triad Societies. The same expert also said that it was common for members of Triad Societies to do valet parking as a means of raising money.

The defence case

9.The defence case at trial was that on both occasions D2 had said nothing about not making trouble in the past, neither had he mentioned terms such as 'big brother' or 'lo ding'.

10.Neither D2, nor the Applicant, gave evidence or called witnesses at trial.

The issue of menaces

11.The trial judge accepted the evidence of the two prosecution witnesses of what D2 had allegedly said. He found that D2 saying that they had not made trouble in the past suggested that they were implying that were capable of causing trouble in the future and that was sufficient to show menaces. He found that D2's reference to 'big brother' or 'lo ding' added further to the presence of menaces in the demand.

12.Mr Ross argues that, even on the versions given by the prosecution witnesses, it was open for another reasonable inference to the drawn, which is to take the meaning of the words as face value: they were not a nuisance to the site, but they were looking for an unspecified donation for the funeral expenses of a friend. Mr Ross also argues that the civilized atmosphere and the fact that D2 and the Applicant decided to leave without doing more when their demand was not entertained all suggests that they had spoken with a lack of menaces.

Discussion

13.The word 'demand' is not defined in s. 23 of the Theft Ordinance. Earlier authorities have established that the demand need not be openly expressed. As was pointed out in R v Studer [1915] 85 LJ KB 1017, 'it may in language be only a request'.

14.In Thorne v Motor Trade Association [1937] AC 797 (HL) at p. 817, Lord Wright observed that the word 'menaces' is to be liberally construed and is not limited to threats of violence, but includes threats of any action detrimental, or unpleasant, to the person addressed. It may also include a warning that in certain events such action is intended.

15.In this case it was for the trial judge to determine the true meaning and effect of what D2 said by reference to the whole of the circumstances of the case.

16.Neither D2 nor the Applicant had any legitimate interest in the construction site. Neither had PW1, or those responsible for that site, any interest in, or knowledge of, the allegedly recently deceased 'big brother' and certainly had no reason to contribute to his funeral rites by paying D2 and the Applicant condolence money. Against that background, the mention by D2 that they had not previously caused trouble at the site, coupled with the reference to a 'big brother' in the course of the request for money, carried with it an obvious connotation - as the judge found - that if their request was not met, then, whatever may have been the position in the past, trouble would be caused in the future. Neither the fact that the two demands were made in what was described as a 'normal' and 'civilized' atmosphere, nor the fact that D2 and the Applicant left when the demands failed, alters their nature as blackmailing demands.

17.The judge was certainly not bound to conclude that the words were to be taken at their literal face value. We note that D2's and the Applicant's defence at trial was that the words were not said - not they had been said innocently with no demand being implicit within them.

Decision

18.There is no merit in this application and it is dismissed.

Representation:

Ms Mary Sin, SADPP of the Department of Justice, for the HKSAR

Mr Philip Ross, assigned by the Director of Legal Aid, for the Applicant