The Queen v. Lam Sai-wan (A1) and Another

HCMA000805/1985

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Kempster, J.A. (sitting as an additional High Court Judge)

Date of Hearing: 11th October 1985

Date of Judgment: 11th October 1985

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JUDGMENT

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1. On 12th July 1985 LAM Sai-wan and CHEUK Shun-chuk were sentenced to periods of imprisonment for the blackmail of which they had earlier been convicted by the Magistrate, Mr. Venning, after trial. LAM Sai-wan was sentenced to two years imprisonment and CHEUK Shun-chuk to sixteen months imprisonment. Against those convictions both appeal to this Court.

2. The offence charged was in these terms: "You are charged that on the 29th day of December, 1984, at a cooked food stall outside Block 7, Yau Tong Estate, Kwun Tong, Kowloon, in Hong Kong, you did, with a view to gain for yourselves, make an unwarranted demand of $10,000 Hong Kong currency, from LAM Sau-fung, with menaces. "

3. The complainant, LAM Sau-fung, gave evidence to the effect that he lived in a wooden hut at Yau Tong Lower Village. On the date in question, at about 8 o'clock in the evening, the second appellant, Cheuk, called upon him and complained that LAM Sau-fung's younger brother had damaged his, Cheuk's, hut. Apparently it was suggested that the roof had been damaged. The complainant went along to have a look because the hut was next door to his. Cheuk said: "If you don't give me compensation, I will call for a group of persons to deal with the matter. " The parties parted on not very friendly terms. Then, by the time about 20 minutes had elapsed, some five or six persons had come to the complainant's front door and were shouting for him to come out. That they so arrived cannot be regarded as a coincidence and the Magistrate was satisfied, as I am, that they were called in aid by Cheuk. The complainant went on to say that LAM Sai-wan was a member of that party and had accused him of damaging his brother's house. It is common ground that the term "brother" in that context did not connote a lineal relationship. Then the complainant was pushed about and told that his attitude was not good. His mouth was covered by someone's hand so that he could not say anything. Then he was told to attend at a nearby food stall called the East Ocean Restaurant. It is what transpired at or outside that restaurant that is the subject matter of the charge. He said: "When I arrived there there were some 9 persons in total present including LAM Sai-wan and Cheuk." Cheuk told the complainant that he had to pay $10,000 compensation. The complainant said he was in no position to pay such a sum of money and argument continued for about 20 minutes. LAM Sai-wan then introduced himself as "honest broker "and suggested that $5,000 might be sufficient. Finally the complainant agreed to pay $2,000 of which he paid $500 after fetching the money from his hut and the balance some time later; to a Mr. Ho on behalf of LAM Sai-wan. It is quite true that there is no evidence that the money went to Cheuk though, as it was he who had set this train of events in motion, it would be a reasonable inference that the money reached him in due course.

4. "Menaces" is a term which embraces a wide range of conduct including words and gestures and which can be related to the number of persons present at a particular time with a particular common attitude. In his Decision, which was dated 12th July of this year and given, I think, some three days after the conclusion of the evidence, the Magistrate made a number of findings of fact. The first was that Cheuk had instigated the whole matter because he had come to the conclusion that some small damage to his hut had been committed by the complainant's family. Secondly the Magistrate found that, after threats from Cheuk on the evening of 29th December 1984, five or six men called at the complainant's house, used minor degree of force on him and obliged him to go to this cooked food stall. The Magistrate thirdly found that he attended the meeting with nine people, including all defendants, and, having regard to their several cautioned statements, that each defendant knew what the meeting was about; namely to demand compensation from the complainant for the damage which Cheuk claimed his hut had sustained. The Magistrate further found both that this demand was merely a thin disguise for extortion and that the negotiation was taken over by LAM Sai-wan.

5. One of the matters raised by Mr. Tse, who appears on behalf of Cheuk, to attack these finding was that the Magistrate had relied on part of a cautioned statement made by one of the defendants, which that defendant had accepted in evidence so as to make it admissible as against all the accused, without warning himself of the danger of so doing having regard to the fact that all the defendants were or might be guilty of a common offence and have personal interests to serve in what they had said. He is quite right in saying that if that statement was to be relied on the Magistrate should have given himself a warning. But the words he used were: "The complainant was pushed around outside the house and according to one of the defendants was punched at the restaurant, although in respect of this punch the complainant made no mention of it himself. But I am satisfied that the conduct towards him was such that it amounted to menaces. Certainly the demand for compensation was totally unwarranted. " The Magistrate made no finding based on the statement of one of the accused in relation to the guilt or complicity of any other. When he spoke of "conduct" he was referring to the picture of events in the neighbourhood of the cooked food stall overall which, on the evidence that I have already read, disclosed a group of people with a common purpose and intention amounting to menaces.

6. It is also said that there was no evidence that Cheuk had used menaces. But Cheuk had, on the Magistrate's finding, set this coercive party in motion and is, accordingly, liable as a principal for their conduct. It is said that there was no evidence to support the finding that he was the instigator. But again, in my view, the Magistrate was perfectly entitled to find on the evidence of the complainant that Cheuk had initiated, supported, sustained and taken part in the whole train of events.

7. There are complaints that the Magistrate did not allude to certain items of evidence which, it is said, would tell in favour of one or other of the defendants; particularly the fourth, Cheuk. But as Mr. Catney, who appears for the Crown, properly said: "A Magistrate cannot so be burdened in coming to a decision and giving his reasons as to deal with every piece of evidence that is adduced in the course of a trial. "

8. There is an issue in relation to a mysterious person who is frequently alluded to by the defendants as having either a beard or a mustache who eventually, Cheuk says, was arrested along with the rest of them. Mr. LAM Sai-wan referred to him this morning. One of the defendants took a police officer on what turned out to be a wild-goose chase to discover such person. Insofar as the Magistrate rejected the suggestion that this mysterious figure was in fact the instigator or "master-mind" I can hardly imagine how he could have found otherwise than that he was a figment of the imagination.

9. In the circumstances, I see no ground in any way to impugn the conviction of either of these appellants and the appeals against conviction are dismissed.

10. In relation to the appeals against sentence I have been referred to a very lenient course recently taken by Baber, J. on appeal from a sentence for blackmail imposed by a magistrate. I none the less feel bound to take into account that the present sentences were passed in the context of blackmail taking place in and in relation to squatter settlements as to the pervasiveness and gravity of which the Magistrate is, I have no doubt, in a better position to judge then I. He took into account the respective degrees of guilt of the appellants and the relative gravity of their respective criminal records.

11. It is said that Cheuk has two children in his sole care who have been committed to the care and protection of the Social Welfare Department. Such hurt to children and members of the family is a familiar and unhappy incident of crime. Those minded to break the law should not overlook the consequences for others as well as for themselves.

12. I see no error in principle in either sentence imposed by the Magistrate and the appeals against sentence are also dismissed.

Representation:

First appellant in person

Mr. Joseph Tse (K.C. Chan & Co.) for second appellant

Mr. Catney for D.P.P.