Wong Lai-yin and Another v. The Queen

CACC000397/1978

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Coram: McMullin, J. in Court

Date of Judgment: 29th May, 1978.

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JUDGMENT

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1. I dismissed the appeals against conviction of both the first and second appellants. The second appellant received a sentence of eighteen months for a single charge of blackmail and the first appellant, a young girl, has been made the subject of a supervision order under section 34(2)(b)(i) of the Protection of Women and Juveniles Ordinance and both appellants appeal against these sentences.

2. Having said at some length in dismissing the appeal against conviction that I am satisfied that the evidence supporting the charge against both defendants was sufficient to found those convictions I must confess to a certain uneasiness in regard to the sentence imposed upon the second appellant. There is no doubt that the police were confronted with something of a quandary in this case. They had before them complaints by two separate persons: a complaint by the girl against her former employer that he had interfered with her sexually; a complaint by her former employer against the girl and her companion that they had endeavoured to extort money from him by menaces on the pretext of his alleged immoral conduct. Both of those complaints have been pursued. One of them resulted in the conviction for blackmail which is the subject of the appeal with which I have just dealt and which has failed. The course taken by the police in respect of the other complaint was that an application was made by a woman police officer for an order under the section which I have quoted above on the basis of the information given by the girl. This was made on the 16th of January some five days after the complaint of blackmail and at that stage it would appear that the police were sufficiently impressed by the girl's complaint to make their report and recommendation on the basis of that complaint.

3. Now I do not have to pronounce upon the justification or possible justification for the complaint of the girl but the matter is of importance in relation to the question of the sentence of the second appellant inasmuch as it is clear that the learned magistrate in convicting the two defendants took the view that Mr. Ma, the complainant on the blackmail charge, was an entirely innocent person and that the allegation made against him by the first and second appellants was unjustified. She went further than that, however, because, in her statement of findings, recorded subsequent to the lodging of the appeal, she suggests that the girl's physical condition (which had occasioned a medical examination) was possibly the result of her relationship with her associate, the second appellant, and not with Mr. Ma. There is no doubt that there was some evidence, which was not explicit in the case but which was embodied in a report of which the magistrate was made aware after the trial, and of which I have been made aware in this court, to show that the girl had indeed had sexual intercourse there being old tears to the hymen and a discharge from the vagina which had persuaded the girl that she might be infected with venereal disease. As it turned out she was not infected with the venereal disease but the magistrate leaned upon this factor in convicting inasmuch as she thought that the girl's fears would have provided a sufficient motive for the blackmail.

4. So far as sentence is concerned I must repeat what I said earlier: that this is to a high degree a speculative suggestion. So far as this second defendant is concerned clearly there are two possibilities: (1) that he was from the outset a fully complying and guilty partner with the girl in an attempt to extort money for a cause which he knew to be false; (2) alternatively, that he was guilty of that extortionate attempt but upon a basis of fact which he accepted from the girl's lips, himself being to some extent her dupe. This second possibility was clearly not entertained by the learned magistrate in coming to impose sentence. I note the evidence given by Mr. Ma himself which appears upon the record at page 7 is to the following effect - he said that he had been asked to give the girl $20,000 - and his evidence goes on:

"I asked why I should give her $20,000. I did not know any reason why I should do so. I told the defendant too that I would not give any money to this young lady and the man said:

Immediately thereafter he, the complainant, accused the appellants of blackmail. Upon that testimony it is clear that there was an endeavour to extort money by a menace but I underline that particular passage because the tone of that testimony seems altogether out of keeping with the suggestion of a calculating and wickedly intentioned blackmailer uttering a threat in which he had no belief. The tone of it I would take to be as readily to interpret as a quite wrongful but nevertheless honest endeavour by a person concerned with the girl's welfare to extort money from a man who he felt might be guilty of the allegations made against him. I put this tentatively: there is no finding of fact, nothing upon the record of the evidence itself which would permit me as a court of appeal to make such a factual finding but neither is there to support the learned magistrate's suspicions concerning the cause of the girl's disorder. It is possible that neither Mr. Ma nor the second appellant was the guilty party and that possibility was one to which I think the learned magistrate, in imposing sentence, might have attended. Again it must be remembered that the Crown had accepted that the demand was made on behalf of the girl. In this regard I think that the magistrate's conjecture that the first defendant intended to share in her ill-gotten gains was, in the circumstances, too speculative. There was at least the possibility that he was doing what he was doing solely to aid a person whom he had decided to assist out of misguided sympathy. This, coupled with the evidence to which I have referred above (and which it is not wholly dissimilar from the testimony given by the defendant himself) would conduce to the view that it was possible he was making an unjustified demand but with some feeling of justification. Mr. Downey points out that the sentence imposed is just six months under the limit of the magistrates jurisdiction. The appellant is aged 32; he is a garage mechanic earning about $1,000 a month and he has a clear record. Blackmail is a very serious offence. I do not propose to reduce the quantum of the sentence. For the reasons given, however, I think the appellant is deserving of a chance and the sentence will be suspended for a period of two years.

5. As to the order for care and supervision, notwithstanding what has been said by Mr. Downey I am satisfied that this was the proper order to make. It is true that the reports emanating from the Social Welfare Officers are favourable to the family circumstances of the first appellant and that the family has not rejected the girl but I have to look at the picture at large and it is a necessary consequence of what I have said already in relation to the sentence imposed upon the second appellant that if he was taken in to some extent by the girl it may be that neither Mr. Ma nor the second appellant was the cause of her condition, a condition which clearly discloses that somebody had had sexual intercourse with her prior to the blackmail demand. In view of that as a possibility and in view also of the fact that the parents are hard pressed folk with many business and domestic worries to absorb their attention and time I do not see that the order imposed was either wrong in principle or that it imposes an unnecessary hardship. Although in general I am somewhat against the intrusion of officialdom into private family life yet I believe that the officials of the department, who, as Mr. Downey concedes, are well reputed in these courts to carry out their task with concern and with humanity, that these officials should be permitted to exercise some degree of supervision for the period stated. The appeal against that order will be dismissed. The appeal of the second appollant is of course allowed but only to the extent I have already indicated.

Representation:

B. Downey (D.L.A.) assigned for both appellants.

I. Polson and Conway, C.C. for respondent.