So Sun Fat and Another v. The Queen

CACC000237/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 237 OF 1969

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Coram: McMullin, J.

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JUDGMENT

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1. The appellants who are both police constables were convicted under section 48 of the Larceny Ordinance of the offence of demanding with menaces with intent to steal.

2. The complainant Wong Hau, is a boatman employed by the monks of the Trappist Monastery on Lan Tau Island to operate a shuttle service for goods and passengers between Peng Chau and Lan Tau. It appears that the Monastery owns two boats which perform this service and the particular boat which figured in the present case was one which was licenced for the carrying of passengers. Although he does not own either of these boats the complainant is paid a salary for operating them and in addition is permitted to charge each passenger per trip. From this money he pays for the maintenance of the boat and the crew's wages and presumably keeps whatever there may be over and above these expenses. The case for Crown was that the complainant was approached by the two appellants upon the 1st of December and that the first appellant asked the complainant for "tea money" and on his request being refused by the complainant he threatened to have the complainant's ferry, which was then alongside the pier, towed away by a marine launch. These exchanges, in the course of which obscene language was used, did not last very long and the two police officers then moved away and the complainant and his companion So Hung made a trip to Lan Tau with a group of passengers. After they returned, the complainant went to have some tea and on returning from the tea house, he was accosted by the same police officers who led him to the police station and took him upstairs. According to him he was there beaten and forced to sign in the notebooks of both of the policemen. No criminal charges have arisen from this alleged assault but the matter is of importance in relation to the present charge as will transpire.

3. The 1st appellant's story, by way of defence, was that he had observed the complainant's boat stationary at the pier for about half an hour without unloading or loading either passengers or goods and that he had remonstrated with him on the basis that the place occupied by the complainant's boat might be needed for other vessels. He wished to bring home to him the fact that he was creating an obstruction but the complainant became stubborn and uncooperative and some hot words were exchanged. The 1st appellant did not deny that he had used obscene language to the complainant but put it on the basis that he and his fellow policeman were being made to look foolish before the persons who gathered on the pier. He said that he then, as the complainant was about to walk away, called upon him not to do so and told him to come to the police station which he did. He and the 2nd appellant there in the doorway of the police station explained to the complainant that he should not have caused an obstruction and warned him not to do so again. The complainant's attitude had apparently changed; he was chastened by what they said, and on their invitation wrote his name in the notebooks of both of them underneath an account of what they say transpired.

4. The learned magistrate dealt in detail with the evidence a very full record of which had been recorded b? him. He adverted to a number of inconsistencies and peculiarities in the testimony of the complainant and of So Hing but came to the conclsuion that they had told him substantially the truth. He accepted therefore, that a demand for "tea money" had been made by the 1st appellant with the connivance of the 2nd appellant and having recorded these findings he went on to say:

"I hold (a) that the request for "tea money" was a demand for money; (b) that the fact to have the vessel towed back was of such a nature as would in the circumstances unsettle the mind of a reasonable man and that, in the circumstances, it amounted to a menace within section 48 of the Larceny Ordinance; (c) that the defendants had the intention to steal the money so demanded."

5. On the appeal no question has been made as to the actual quality of the testimony given by the complainant and the other witnesses for the prosecution. The short point for decision on this appeal is whether the magistrate was right in finding, upon the evidence, that the demand for tea money, coupled with a suggestion that if it were not given the ferry would be towed away by a marine launch, was, within the section, such a menace as would unsettle the mind of a person of reasonable firmeness and courage and cause him to accede to the demand made upon him. Mr. Yu, drew my attention to a certain passage in the cross-examination of the complainant. This passage appears upon page 26 of the typewritten record and concerns the general topic of the attitude of the police upon Peng Chau towards those who run the ferries to and from that island. The passage is as follows:-

6. On page 24 of the record there is another passage which though not referred to specifically by counsel is, in my view, of great importance in this regard. This is a passage in which it was suggested to the complainant that he must have been surprised, in view of his allegation against the two police officers, that having refused tea money to them the ferry was never in fact towed away. At this point he is recorded as having said: "If they had not assaulted me, I would not have divulged all these things." The Solicitor for the defence then said: "You would not even bother to report but for the assault." To this the complainant replied, "If no assault, I would not have spoken words against them."

7. It is clear from these two passages that, so far as the alleged soliciting of tea money was concerned and the threat following thereon, the complainant regarded it as being a matter of no importance and that the alleged menace had had no influence upon his mind at all and since he, apparently, regarded it as an empty threat devoid of substance or intention.

8. Both counsel referred me to the decision in the Queen v. Clear 1968, 1 A.E.R. p.74. The decision is a convenient compendium of the law on the topic of demanding with menaces. In that case, goods had been stolen from a lorry owned by a certain company. Subsequently the owner of the goods took action against the company. The appellant, who had been the driver of the lorry at the time of the disappearance of the goods, was of the opinion that his evidence would be of great importance to the company in defending the action notwithstanding that the goods had been insured. He approached a Mr. Chapman, the managing director of the company and threatened to give testimony in the case which would be unfavourable to the company unless he was paid £300 for repeating the favourable statement which he had originally made to the police in connection with the affair. The matter was put in the hands of the police and the appellant was convicted of demanding with menaces under section 30 of the Larceny Act, 1961. The court referred to the head note in the earlier case of R. v. Waltom & Ogden⁽¹⁾ in which the suggestion is made that the menaces must be such as to cause alarm and to unsettle the mind of the person on whom they operate and take from his act its free and voluntary character. The court in R. v. Clear came to the conclusion that the actual decision did not bear out this statement of the law in the headnote notwithstanding that counsel for the appellant had, at the trial, put forward that proposition on the authority of that decision. The court approved the objective test enunciated by the trial judge in his summing up in the following terms:

"Were the m naces such - if any are proved - that they were likely to operate on a person ordinarily firm and courageous minded?"

In his judgment, Sellers L.J. makes it clear that it is not essential to prove that the intended victim of the demand must himself have been alarmed by the threat held out to him. No doubt the law is

(1) 1863, Le.& Ca.288.