R. v. Cham Tak Ming

HCMA000527/1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 527 OF 1994

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 26 July 1994

Date of delivery of judgment: 26 July 1994

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J U D G M E N T

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1. On 4th May 1994 at Shatin Magistrates' Court, the Appellant was convicted, after pleading not guilty, of blackmail. He was sentenced to 3 months' imprisonment suspended for 12 months. He now appeals against his conviction.

2. The prosecution's case against the Appellant was based entirely on the evidence of PW1, the managing director of a company which franchised a number of dry cleaners. In 1991, the Appellant through his wife took franchises of three outlets. The contracts for the three franchises provided, inter alia, for the payment of an initial fee for each franchise. The initial fees for the three franchises taken by the Appellant's wife amounted to $480,000. PW1's evidence was that he had told the Appellant at the time that the initial fees were not returnable.

3. However, in 1993, the company's landlords wanted to repossess two of the outlets. That was because the franchises to the Appellant's wife had been in breach of the company's covenant that it would not assign, underlet or part with the premises in which the outlets were. As a result, the Appellant's wife had to give up the franchises, and the Appellant demanded the return of the initial fees. On that occasion, PW1 did not refuse to return the initial fees to the Appellant. He asked the Appellant to bring the receipts for the $480,000 to him.

4. PW1's evidence was that one afternoon he was visited in his office by the Appellant and three men whom he did not know. The Appellant asked him for the return of the $480,000. PW1 refused to return the money to him, saying that the contracts had provided that the "running fees" (which is how he described the initial fees) were not refundable, though I note that the contracts which were produced do not provide that. One of the other three men then said that he was there to collect the money for the Appellant, that PW1 was to be careful, and that he would burn PW1's factory down and would then ask someone to chop PW1 and his family. PW1 then telephoned the police, after which the Appellant and his three companions left. The Appellant did not give evidence.

5. Section 23 of the Theft Ordinance (Cap. 210) provides that

"a demand with menaces is unwarranted unless the person making it does so in the belief-

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand."

The magistrate had no difficulty in finding that the Appellant believed that he had reasonable grounds for making the demand. The magistrate did not refer to that finding in his Statement of Findings, but there is no doubt that he made that finding because his notes of the proceedings record him as saying, when he convicted the Appellant, that he had no doubt that the Appellant believed that he "had the right to ask for the refund of the $480,000."

6. The magistrate also found that one of the Appellant's companions had told PW1 to be careful, that he had said that he would burn down PW1's factory and that he had said that he would ask someone to chop PW1. It may be that there were some minor differences between PW1's witness statements and his evidence in court, but the magistrate saw and heard PW1, and he was in an infinitely better position than I to assess PW1's reliability and credibility as a witness. I cannot interfere with the implicit finding of the magistrate that such inconsistencies as there were between PW1's witness statements and his evidence in court did not cause him to doubt PW1's evidence in court.

7. The magistrate also found that the Appellant was a party to what the Appellant's companion told PW1. The magistrate did not say in his Statement of Findings what facts led him to draw that inference, but it was obviously an inference open to him, having regard to the facts that (a) it was the return of the Appellant's money which was being demanded, and (b) the Appellant did not seek to distance himself from the threats which his companion had made.

8. The final issue which it could be said the magistrate had to decide was whether the prosecution had proved that the Appellant did not believe that the use of the menaces was a proper means of reinforcing the demand. I put the final issue in that way, because once the issue of belief is raised, the burden is on the prosecution to prove the Appellant had no such belief. The Appellant need not have had reasonable grounds for his belief. The test is a subjective one. Did the Appellant think that the use of the menaces was proper?

9. I discern nothing in either what the magistrate said when he convicted the Appellant or in his Statement of Findings which indicates that he addressed that question. However, I do not think that that is fatal to the conviction. In R. v. Lawrence and Pomroy (1973) 57 Cr. App. R. 64, the Court of Appeal in the U.K. held, on an identical statutory provision, that where on the face of it the means adopted to obtain payment of a debt are not the proper way of enforcing it, and where the defendant does not at his trial set up a case that he believed that it was a proper way of enforcing the payment of the debt, there is no need for proviso (b) to be considered. I have no doubt that the magistrate could have concluded that, on the face of it, the means adopted by the Appellant to obtain payment of this debt was not a proper way of enforcing it, and if the magistrate's notes are anything to go by, the issue was not raised by the defence. There was, therefore, no need for the magistrate to decide whether the prosecution had proved that the Appellant did not believe that the use of the menaces was a proper means of reinforcing the demand.

10. For these reasons, this appeal must be dismissed.

Representation:

Ms. Jenny Betts, S.C.C., for the Crown.

Appellant in person.