The Queen v. Lau Chun Sum

HCMA000361/1986

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 361 OF 1986

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BETWEEN

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Coram: de Basto J.

Date of hearing: 23rd April, 1986.

Date of delivery of judgment: 12th May, 1986.

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JUDGMENT

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1. The appellant was charged with claiming to be a member of a Triad Society contrary to Section 20(2) of the Societies Ordinance, Cap. 151. The particulars to that charge read as follows : -

"LAU Chun-sum, you are charged that on a day unknown in 1982 at No. 28, Block 36, Sau Mau Ping Estate, Kowloon in Hong Kong you claimed to be a member of the Yee Kwan, a Triad Society".

2. The appellant was also charged with blackmail contrary to Section 23(1) of the Theft Ordinance, Cap. 210. The particulars to that charge read as follows : -

"LAU Chun-sum, you are charged that on the 13th day of December, 1985 at the Tao Fong Restaurant, 20-22 Lion Rock Road, ground floor, Kowloon in Hong Kong with a view to gain for yourself, you made an unwarranted demand of $10,800 Hong Kong currency from SIU Sik-lung with menaces".

There were three additional grounds of appeal.

3. The first I found to be without substance.

4. The second ground of appeal which, in my view, could have been more particularized, was that there was no evidence to support one of the particulars in that no evidence was adduced to prove that the claim of being a member of the Yee Kwan Triad Society was made at No. 218, Block 36, ground floor at the Sau Mau Ping Estate. Mr Whitehead for the appellant said he would have had no complaint if, even though no evidence was adduced as to the particular place, the identity of the person to whom the claim was alleged to have been made, had been named (see R. Allamby and Medford (1974) All E.R. 126).

5. If the Crown chooses to particularize a specific place at which an offence of the kind in the instant case is alleged to be committed, I am inclined to the view that the Crown should establish that fact, especially in the absence of the name of the person to whom the claim was alleged to have been made.

6. However, it is on the second .ground that I think the Crown failed to establish a necessary ingredient, namely the menaces to which the demand related.

7. The alleged menaces is referred to in the evidence of SIU Sik-lung at page 21 of the transcript and reads as foolows : -

"He said unless you do not open shop and you escape otherwise you must pay or your shop will be demolished and you will be chopped".

8. The meaning of the, words "or your shop will be demolished and you will be chopped" is perfectly clear but the words before that sentence are gibberish. In view of the use of the disjunctive "or" it was necessary to know what precisely the preceeding words were as  they might well have qualified the words following the disjunctive.

9. Mr Shaw did not attempt to try to give a reasonable interpretation of the words constituting the first part of that answer. I was reluctantly persuaded that the verdict was unsafe or unsatisfactory.

10. I have every sympathy with the learned magistrate. I appreciate that magistrates work under heavy pressure and I think that the learned magistrate in this case took a robust view of the evidence and found the appellant guilty. I quash the conviction and order a re-trial before another magistrate at the earliest date possible.

Representation:

Mr J. Shaw, Crown Counsel for Crown.

Mr. R. Whitehead instructed by Messrs. K.Y. WONG & Co. for Appellant.