Sit Chi Leung v. The Queen

CACC000398/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 398 OF 1972

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Coram: Rigby, C.J., McMullin and Leonard, JJ.

Date of Judgment: 15th August, 1972.

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JUDGMENT

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Rigby, C.J.: The appellant was the second of four defendants jointly charged with 18 charges of blackmail - of the offence of blackmail. The first and fourth defendants were police officers who absconded on their bail, so the position was that when the case came to trial, the second and third defendants only stood their trial.

2. At an early stage in the proceedings the judge before whom the case first came indicated that in his view it was unfair to the defendants, who were unrepresented, that they should stand trial on 18 charges at one and the same time. With that view this court is in complete agreement. However, the prosecution very properly elected to proceed on four only of those charges.

3. The appellant, and the third defendant who was tried with him, were convicted - the third defendant on three charges; the appellant on all four charges.

4. Upon his conviction the appellant asked for thirteen other offences which had been included in the indictment to be taken into consideration. For the purpose of sentencing the learned judge then, having regard to these additional offences and to his past record, imposed a sentence of 15 months' imprisonment on each of the four charges, such sentences to run consecutively, making a total of five years' imprisonment. He further made an order that the appellant be subjected to two years' of police supervision.

5. The appellant now appeals against these convictions and the totality of the sentence imposed upon him.

6. The method of procedure adopted was the same in each case. The appellant, with three other persons, would go along to the premises of an unregistered Chinese medical practitioner. Having obtained entry it would be represented to the complainants in each incident that the appellant was a government medical officer and that two of the others were police officers and that they had all come to inspect the premises. In respect of each incident some fault was found, either in the way of medicines being found upon the premises which the doctors should not have had with them, or instruments being found which they were not legally supposed to have in their possession, or some objection of that nature. Thereafter, one of the persons who was represented as being a police officer would then take the victim - if I may call him such - to one side and indicate to him, or her, that if some payment was made a charge would not be brought against him (or her).

7. In three charges on which the appellant was convicted, actual sums of money were, in fact, paid over. On the other charge, it is quite clear on the evidence that a demand for payment was made. It is clear that in each incident the appellant was present at the time, but it is true to say that, upon the evidence, it was not established that it was the appellant himself who represented himself as being a medical officer. Nevertheless, in at least one of these incidents he was present and heard the representation made and made no attempt to deny it. In each incident it is clear from the evidence that either the appellant represented himself as a medical officer or that it was he himself who found the allegedly offending or unlawful medicine or instrument or that it was he himself who made the veiled threat requiring a payment of money to stifle further action.

8. In dealing with these facts and in reference to the law, the learned trial judge referred to the well-known case of R. v. Coney⁽¹⁾ in which the judge there said:-

"It is no criminal offence to stand by, a mere passive spectator of a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not."

9. The appellant admitted his presence at the time the offences were committed, but he said he was a police informer, and he denied any knowledge of the unlawful common purpose to obtain money by means of menaces, and he denied that he had any knowledge that any such demand of money was made.

10. The learned trial judge, upon the evidence, quite clearly took a different view. He was satisfied that the appellant was a knowing and a willing party to the common purpose to obtain money by menaces. In our view there is abundant evidence to support the conviction on all charges, and the appeal against conviction is dismissed.

11. The appellant has made reference to the fact that the co-defendant - the third defendant who was charged and convicted - was placed on a bond of good behaviour, and further fined the sum of $500, and further ordered to make compensation, and he has thought fit to compare that sentence with the sentence of five years of imprisonment which was passed upon himself. Suffice it to say that the co-defendant was a young man of 25 years of age, had never been in trouble before, the probation officer's report was not unfavourable to him, and the learned judge took the view - and he was clearly entitled to take that view - that upon the evidence the third defendant had been led astray by the present appellant. The present appellant is a man of 47 years of age. He has a long string of previous convictions for the same offence of obtaining money by false pretences. The learned trial judge has described him as a "seasoned confidence trickster" - a description with which this court is in complete agreement. We see no reason to interfere with the sentence and the appeal against sentence must also be dismissed.

Representation:

Appellant in person.

Duckett, S.C.C. for Crown/Respondent.

(1) (1882) 8 Q.B.D. p.534.