The Queen v. Wong Chung-ming

CACC000474/1985

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A. & Nazareth, J.

Date of Hearing: 31st December 1985

Date of Judgment: 31st December 1985

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JUDGMENT

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Kempster, J.A.:

1. On 17th October of this year WONG Chung-ming was convicted at Victoria District Court by Judge Gall of three offences. One was an offence of blackmail in that he on 23rd June 1985 outside the cooked food stall at Yan Shun Lane, Kwun Tong, with a view to gain for himself made an unwarranted demand of $500 from AU Kin-sang with menaces. The other two offences were of wounding AU Kin-sang and YAU Fai-chi with intent to cause them grievous bodily harm on the same date and at the same place. Against those convictions WONG Chung-ming seeks the leave of this Court to appeal and by Mr. Keane, who appears on his behalf, has today restricted his grounds substantially to a point of law in relation to the way in which the trial judge directed himself on the first count, being the count alleging blackmail, albeit issues of identity in relation to the convictions for wounding are formally before us. We find there is no substance in these latter grounds as identity was not a critical issue at trial. For completeness we should add that we have allowed the applicant to rely on revised grounds albeit filed late; no objection having been raised on behalf of the Crown.

2. Returning now to the first count, blackmail is defined in section 23(1) of the Theft Ordinance, Cap.210, in these terms:

"A person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; - "

Substantially two points are made in relation to this offence and to the judge's Reasons for Verdict. The first is that the test of a demand with menaces is that the menaces should be such as to influence and possibly prevail upon a man or woman of normally robust temperament. The test therefore is objective. The judge applied a subjective test.

3. The second point made is that the Particulars of Offence are couched in the terms "with a view to gain for himself" and that while the Crown has thus elected to satisfy the Court so that it is sure of this element of the offence the evidence did not allow of such a conclusion.

The judge referred to the first count in these words:

"In respect of the blackmail charge the elements I must find are clear. The menaces may be either express or implied and must be such that the victim was made apprehensive by them. "'

He went on to say:

"Common sense tells me that for a person to ask for $500 so his brothers could eat could justifiably raise in AU (that was the victim) the apprehension he said he felt. "

From these words it is apparent that the judge indeed applied a subjective rather than an objective test to the question of menaces and, having found that the victim felt himself menaced and was thereby influenced, that the offence was made out. But we know nothing of the particular temperament of Mr. Au. The direction is wrong in law and accordingly constitutes a valid ground of appeal as provided by section 83(1)(b) of the Criminal Procedure Ordinance. We allow the application for leave to appeal accordingly.

4. The facts disclosed by the evidence of the prosecution witnesses, which the judge accepted, were that on the dates specified in count one of the indictment the applicant passed Mr. Au's stall in Kwun Tong and was solicited by him to come in and have something to eat. Then, again according to the Crown witnesses, the applicant responded not by coming in to sit down and ordering a meal, but by approaching Mr. Au and saying "You must have a very good business you have used the whole street. " To quote from the evidence of the victim as recorded in the judge's notes "The [applicant] asked me then for $500. He said it was for his brother to eat. " The victim later continued: "When I said I did not have $500 the applicant said in Cantonese: 'Do you want to make a living in Kwun Tong' - I was become frightened when he asked for the $500." [sic]

In our view, in the context of a demand for money and of the evidence which we have read and which was substantially recited by the trial judge the words "for my brother to eat" and "do you want to make a living in Kwun Tong" carried the inescapable inferences that the demand was being made by a member and on behalf of a criminal society and that any money that was paid over as a result of such demand would be shared between the person making the demand and the other members of that society. Insofar as it is suggested that the demand for money and the implicit threat imported by the rhetorical question "Do you want to make a living in Kwun Tong?" were unrelated the point is unsustainable because the demand remained unsatisfied and when the words "Do you want to make a living in Kwun Tong?" were used they could only have been understood by the victim as importing the further words "If so pay me the $500 I have demanded or face the consequences. " We have no hesitation, despite our finding in relation to the misdirection of law, in applying the proviso because we are satisfied that no miscarriage of justice resulted. Accordingly the appeal against conviction is dismissed.

Representation:

Mr. D. Keane, Q.C. & Mr. John Lee (R.J. Oliver) for appellant

Mr. B.C. Smith, C.C. for D.P.P./respondent