R. v. Lam Chiu Va

HCMA001007/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1007 OF 1995

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Coram: Hon Duffy, J. in Court

Date of hearing: 8 December 1995

Date of delivery of judgment: 14 December 1995

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J U D G M E N T

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1. This was an appeal against conviction for blackmail and theft and a total sentence of 8 months imposed therefor.

2. The facts were as related by the learned Magistrate as follows :

"... in early 1992, the appellant, together with four others who included PWs 4 and 5, formed a company called Hunter Pencil Case Manufactory Ltd. They were equal shareholders and the paid up share capital was $10,000. In addition, each lent the company $198,000, thereby making his total investment $200,000. In early 1993, the appellant wanted to end his involvement with the company and sought the return of his investment in full. Other members of the company claimed that trading losses meant that he could only have about $60,000 back. The accounts of the company, prepared by PW6, were not available on the several visits made by the appellant in the course of 1993/94 and despite his requests, no accounts were produced and no money was returned to him.

It was the Crown's case that, against this background, the appellant went to the company premises on 20th April 1994, in the company of five men, with the object of obtaining the money by force, if necessary. They were let in and the five men went to the small office where PWs 4 and 5 were. The appellant remained for most of the time at the door of the office whilst the men entered and made demands for the return of the $200,000 accompanied by threats and minor assaults. As a result, PW4 and PW5, who were signatories to the company bank account, drew a series of cheques. There was only $10,000 in the account at the time and one of the cheques was for this amount. Four other cheques, each for $50,000, were drawn and the appellant went with one of the men to the bank. There he cashed the $10,000 cheque leaving nothing in the account. The other men directed PWs 4 and 5 to obtain loans from friends and relatives to a total of $100,000. When this had been done, the men paged the appellant who cashed two more of the cheques totalling that amount. The men left, having obtained IOU's from the PWs for the remainder of the demand and with warnings that the sum must be obtained within a month or they would be chopped."

3. The appellant was originally charged with robbery of the cheques as well as theft of the amounts cashed at the bank. The learned Magistrate said this :

"The appellant was charged with robbery of the cheques. Whilst there was a case to answer on that charge, I considered that a more apposite charge was the statutory alternative of blackmail."

No issue is taken on this point.

4. However, the learned Magistrate also said this in his Findings when dealing with the said charges :

"Even assuming, as I did, that he believed that he was owed some money by the company, he can have held no genuine belief that he had in law the right to deprive the company of it, through their bankers. He was an intelligent man and I was sure that he could not have thought that dissatisfied creditors have the right to obtain money owing by means such as this. His actions amounted to a dishonest appropriation of the money with the requisite intention and he was therefore guilty of the theft of it."

5. Mr Macrae, who appeared on the appeal, submitted that, as the learned Magistrate found that the appellant believed that he had a just claim to the money, he could not convict the appellant on the theft charges simply because the means of obtaining the money were improper. He brought my attention to the case of R. v. Jim Skivington [1967]51 Criminal Appeal Reports 167. That case decided that a defence of claim of right, in other words that a defendant honestly believed he had a lawful claim to the property taken, even though that claim was unfounded in law or fact, applies to any aggravated form of larceny, such as robbery, assault with intent to rob or robbery with aggravation, and it is not necessary in the case of such offences that the defendant further should have had the honest belief that he had the right to take the property in the way in which it was taken. That case, Mr Macrae submitted, was authority for his submission that the learned Magistrate had misdirected himself when he said that the appellant had no claim of right because of the manner in which the money was obtained.

6. Mr Lam, who appeared for the Crown, brought my attention to s.26(4) of the Theft Ordinance, Cap.210. That sub-section is to this effect :

"For other purposes of the provisions of this Ordinance relating to goods which have been stolen (including sub-sections (1) to (3)) goods obtained in Hong Kong or elsewhere either by blackmail or in the circumstances described in s.17(1) shall be regarded as stolen; and 'steal', 'theft' and 'thief' shall be construed accordingly."

7. Mr Lam submitted that as the money which was the subject of the theft charges was obtained by blackmail, that therefore it would be regarded as stolen, and so the theft charges were substantiated. Mr Macrae submitted that the point of sub-section (4) was to ensure that those persons in possession of goods obtained as a result of offences of blackmail or obtaining property by deception could not claim that the goods were not stolen. It is to be noted that both in Hong Kong and in the UK, the Theft legislation was amended in 1968, which is after the decision in Skivington. I took the view that sub-section (4) was intended quite clearly to have all goods obtained by blackmail or obtaining property by deception regarded as stolen goods. I, therefore, rejected Mr Macrae's submission in relation to the theft charges and dismissed the appeal in relation thereto.

8. So far as the blackmail charge was concerned, the claim of right point did not avail the appellant. I was satisfied that the learned Magistrate was quite justified, on the evidence, in concluding that the appellant was guilty of that charge. The appeal in relation to the blackmail charge is therefore also dismissed.

9. So far as the appeal against sentence is concerned, I do not feel that a total sentence of 8 months was out of order for offences of this sort. I therefore dismissed the appeal against sentence.

Representation:

Mr William Lam, APCC & Mr Isaac Tam, C.C., for the Crown

Mr Andrew Macrae (C.K. Mok & Co.) for the Appellant