Cheng Kam-man v. The Queen
Read the full judgment text of CACC 426/1969 on BabelCite. This Court of Appeal judgment was delivered on 12 August 1969.
1. The appellant, a Police constable, was convicted upon two charges preferred against him, to wit demanding money with menaces and obtaining money by false pretences. Upon conviction he was sentenced to 18 months' imprisonment; he now appeals against both his conviction and sentence. It is important to observe at the outset that both charges arise out of precisely the same facts and that he was convicted on both of these charges.
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CACC000426/1969 APPELLATE JURISDICTION CRIMINAL APPEAL NO. 426 OF 1969 -----------------
Coram: Rigby, S.P.J. Date of Judgment: 12 August 1969 ----------------- JUDGMENT ----------------- 1. The appellant, a Police constable, was convicted upon two charges preferred against him, to wit demanding money with menaces and obtaining money by false pretences. Upon conviction he was sentenced to 18 months' imprisonment; he now appeals against both his conviction and sentence. It is important to observe at the outset that both charges arise out of precisely the same facts and that he was convicted on both of these charges. 2. The facts may be briefly stated. At the material time the appellant was seconded or attached to the Kwun Tong Magistracy for the purpose of serving summonses issued by that court. On either the morning or the evening - it is certainly not clear from the evidence - of the 8th February, the appellant, together with another man - also, presumably, a policeman - went to the premises occupied by the complainant, a taxi driver, with the object of serving a summons for maintenance against him in respect of a claim brought by the complainant's wife. The complainant was in bed at the time. The evidence given by the complainant as to what then took place is in the following terms - I quote from the Magistrate's record:
3. The 8th of February was a Saturday. At 9.30 a.m. the following Monday, the complainant went back to the Kwun Tong Magistracy to see the appellant and, according to the complainant's evidence, went up to him for a "secret talk". He asked for the return of his $40, otherwise he would make a complaint. The appellant refused to return the money to him. At that time they were both walking in the vicinity, and in the direction, of the Kwun Tong Magistracy. The appellant entered the room reserved for police personnel at the Magistracy and the complainant followed him in. According to the complainant, the appellant then told the Police Inspector in the room that the complainant had been uncooperative and that he, the appellant, had five times failed to serve a summons upon him, adding that the complainant then got very angry and "told the whole story to the officer". The Police Inspector then detailed a corporal - police corporal 6668 - to take the complainant and the appellant to Kwun Tong Police Station. On the way the complainant again asked the appellant for the return of his money. The appellant asked the corporal to lend him $40 and the corporal replied that it was no business of his (this evidence is not corroborated by the corporal who said there was no such conversation but, it is pertinent to observe here that in his grounds of decision the Magistrate said that he disbelieved the evidence of the corporal). The appellant then took $50 out of his own pocket and gave it to the complainant who gave him $10 change. The complainant then said that since he had got his money back he was prepared to withdraw his complaint. However, at the police station, the duty officer in charge, who had previously had information that a report was to be made, said the report must be investigated. 4. The complainant's mother gave evidence confirming the arrival of the two men at the door of the premises in which she lived with her son, their admission, and the handing over by her son of $40 to the appellant. She said that this took place "in the evening". 5. The appellant gave evidence in his own defence. He admitted going to the premises to serve the summons. As to what he said actually occurred is best described by quoting his evidence as it appears on the record. It reads:
6. At the conclusion of the findings on the 28th April, the magistrate reserved judgment for 7 days, until the 5th May. What happened on the 5th May can, again, be best described by quoting from the record of the case. It reads
7. On the face of it, that judgment is commendably brief and to the point although, since he had reserved judgment for seven days one might reasonably have thought that the learned magistrate would, at that stage, have given a careful and reasoned judgment dealing with the facts and the law applicable to the case. But if the magistrate had given a little more consideration to the law involved it must surely have become apparent to him that the two charges were mutually exclusive to one another and, upon the evidence, there could be a conviction upon one charge or the other but not conviction upon both charges. The charges should, of course, have been laid in the alternative. 8. The essence of the offence of demanding (or obtaining) money with menaces is that it is demanded (or obtained) with intent to steal it. The money passes, not voluntarily but involuntarily, as a direct consequence of the person being put in fear by the menace or threat made to him. On the other hand, where the charge is one of obtaining money by false pretences, the money passes voluntarily from the donor as a direct consequence of the false pretences by which he is induced to part with the money. There is abundant authority for this statement of the law and I do not propose to refer to any authorities, which should be known by any first-year student of criminal law. 9. One can imagine a case where the original demand is made with menaces with intent to steal but where the victim, as a result of ensuing conversation between himself and the extortioner, and the answers or information given to him in the course of this conversation, subsequently parts with his money, not involuntarily because he has been put in fear as a consequence of the threat or menace made to him, but entirely voluntarily because he genuinely believes that the person asking for the money is truly in a position to aid or assist him, or to do something for him, and he parts with his money on the strength of that inducement and solely on the basis of the representation made to him, but subsequently proved to be false. In such a case it may well be possible for separate and distinct charges to be laid - and successfully sustained - one in respect of the original demanding of money with menaces with intent to steal and the other - obtaining money by false pretences with intent to defraud - in respect of the subsequent payment made on the basis that it was a voluntary payment handed over, but induced and obtained solely on the strength of the false representation. But even in such a case it is perhaps just arguable that the money was obtained as a result of the original criminal act and intention of the offender to obtain it by a menace or threat with intent to steal and that in such circumstances the charges should be laid in the alternative and not as separate and distinct charges. In this connection it is relevant to refer to the recent decision of the Court of Appeal (Criminal Division) in the case of R. V. Harris(1) in which that Court said that "It does not seem to this court right or desirable that one and the same incident should be made the subject-matter of distinct charges, so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence could frequently give rise to a multiplicity of charges and great unfairness could ensue". In any event the facts in this case do not, support convictions on both the charges brought. 10. It would seem clear beyond any reasonable doubt that the payment made of the $40 was made because the complainant - to quote his own words "was afraid"; he was afraid that if the appellant put in a bad report - or, at any rate, did not put in a good report - he, the complainant, would be arrested. On these facts it would seem clear that he did not part with the money voluntarily and accordingly the conviction of obtaining money by false pretences must be quashed. 11. I have given careful and anxious consideration as to whether these convictions can stand at all. It could be strongly urged that by the very fact of convicting the appellant on both counts the magistrate himself has made no finding of fact (and his subsequent Statement of Findings carries the matter no further) as to whether or not a payment was voluntarily or involuntarily made, and therefore this court ought not to speculate as to what was in the magistrate's mind. It is, however, clear beyond doubt that the magistrate accepted and believed the evidence of the complainant and there was, undoubtedly, evidence upon which he could properly do so. Looking at the record I am, furthermore, satisfied that the inference upon the evidence is irresistible that the complainant paid over the money because of the statement made to him by the appellant that he had already been there five times and the implied menace contained in the appellant's statement that if he put in a bad report the complainant would be arrested, followed by the demand of $100 for a "good reporting charge". The appellant himself in his own evidence said that he told the complainant that he had been there "for a few times and failed to find him". 12. The test to be applied in a charge of demanding money with menaces is: were the menaces, whether by word or conduct or both, such as were likely to operate on the mind of a person of ordinary courage and firmness so as to make him accede unwillingly to the demand (R. v Clear).(2) It is essential to remember that the appellant in the present case was a Police Officer; the complainant a taxi driver. Applying an objective test there is no doubt in my mind that a person in Hong Kong, in the position and status of the complainant, of ordinary courage and firmness, would, indeed, be put in a position of fear as a consequence of a statement, amounting to a veiled threat, by a police officer visiting his house, in similar circumstances to those obtaining in the present instance for the purpose of serving a summons, that he was in a position to put in a bad report which would result in the complainant being arrested - particularly so where there was evidence that the constable had been five times unsuccessfully to the premises of the complainant for the very purpose of serving a summons upon him - and that such a person, in such circumstances would unwillingly have acceded to a demand by that police officer for money. Applying a subjective test, and accepting the evidence of the complainant as it appears upon the record, - and such evidence was accepted and believed by the magistrate - it is manifest that the complainant paid over the $40 in response to the appellant's demand, and because he was afraid that if he did not do so the appellant would put in a bad report - or alternatively would not put in a good report - as a consequence of which the complainant would be arrested. On those facts I have no doubt that there was evidence upon which the magistrate could properly convict the appellant of the offence of demanding money with menaces with intent to steal and that the $40 was handed over as a direct and immediate consequence of that demand. The conviction on the first charge must accordingly stand. The conviction on the second charge must be quashed. 13. Mr. Sanguinetti, who appeared on behalf of the appellant, has criticised at some length, and with considerable justification, the judgment of the magistrate to which I have already referred, together with the so-called Statement of Findings of the magistrate recorded by him after an appeal had been lodged. The Statement of Findings consists of one-and-a-quarter typewritten pages of 1 1/2-spacing, a quarter of which is taken up with a reproduction of Sections 48 and 50(1)(a) of the Larceny Ordinance, and a further quarter with reasons for the sentence which was imposed. Mr. Sanguinetti has complained, again with considerable justification, that not only has the magistrate made no attempt to sift or analyse the evidence given, but has simply sought to support his original judgment with the comprehensive statement that he believed the evidence of the complainant and his mother and disbelieved the evidence of the accused and Corporal 6668, called as a witness for the defence, but, furthermore that the Statement of Findings contains positive mis-statements of fact. Mr. Sanguinetti has drawn attention to a number of such discrepancies; it is sufficient to refer only to three matters. 14. The magistrate, whilst stating he dis-believed the findings of the appellant, specifically states that the incident occurred "during the course of evening". The complainant's mother said that the appellant and the man with him came to the premises in the morning. The appellant said he went there in the evening. The complainant himself was never asked what time it was, but simply said that he was in bed at the time when the appellant and the other man came to the door. 15. The magistrate found as a fact that the complainant's testimony that he handed over $40 to the appellant was supported by his mother who "saw the money handed over". The complainant said that the money was on the table and he picked it up "from the table and handed it over". The complainant's mother, when asked from where the money was paid, said "In a roll from his (the complainant's) pocket". 16. The magistrate has stated in his Statement of Findings "I do not believe the story which the defendant told the court. I do not believe also the evidence of Corporal 6668 who told the court that he had not lent the defendant $40". What the magistrate meant by the second sentence I do not know. The evidence of the complainant was that the appellant asked the corporal for a loan of $40 - testimony which both the appellant and the corporal denied - but it was at no time suggested by anyone that the corporal had in fact lent the appellant $40. If the statement by the magistrate is intended to mean, by the use of two negatives in the same sentence, that he was satisfied that the corporal did in fact lend $40 to the appellant, then it is sufficient to say that such a finding of fact is wholly unsupported by the evidence. 17. I feel bound to say that in a serious charge of this nature involving a man's freedom and liberty, one is entitled to expect that some attempt will be made by the magistrate trying the case to sift and analyse the evidence given and the law applicable to the facts, and that such evidence will not be summarised in a mere general expression of belief of the prosecution witnesses and disbelief of the defence. However, despite these observations, accepting the magistrate's finding that he believed the evidence of the complainant and his mother, I am fully satisfied that there was evidence upon which the magistrate could properly find the appellant guilty of the offence of demanding (and, in fact, obtaining) money with menaces. I would only make the comment - which might well have been made by the magistrate himself - that the very fact that the complainant should have taken the trouble, on the following Monday morning, to go round to the Kwun Tong Magistracy for the express purpose of seeing the appellant and seeking to recover his money, must surely lend a strong measure of credence to his version of what took place in his flat the previous Saturday morning - or evening - between himself and the appellant. 18. In the result, the appeal succeeds to the extent that the conviction on the charge of obtaining money by false pretences must be quashed; the conviction on the charge of demanding money with menaces will stand. I will now hear the appeal against sentence. Representation: Sanguinetti (Deacons) for Appellant. Winter, C.C. for Crown/Respondent. (1) (1969) 2 All E.R.599 (2) (1968) 1 All E.R. 74 IN THE SUPREME COURT OF HONG KONG ----------------- APPELLATE JURISDICTION ----------------- CRIMINAL APPEAL NO. 426/59 -----------------
----------------- Coram: Rigby, S.P.J. Date of Judgment: 12 August 1969 ----------------- SENTENCE ----------------- 19. Mr. Sanguinetti, who has said all that could possibly be said on behalf of the appellant in this case in his appeal against sentence, has referred me to the case of The Queen v. Lo Yu Bun(1) in which I am reported to have said:-
I would unhesitatingly reaffirm and reiterate what I there said, and in my view the proposition which I have there stated is repestedly and consistently borne out by the decisions of the Court of Appeal (Criminal Division) in England. In a very recent case R. v. O'Keefe(2) that Appeal Court there drew attention to the processes that should first be considered by a court before a term of imprisonment (in that case a suspended sentence) was imposed, namely, absolute discharge, conditional discharge, probation order and fine. 20. But having said that, for myself I am clearly of the opinion - particularly in Hong Kong where it is said that offences of corruption and dishonesty are prevalent - that where one has a case involving a police officer, a person put in a particular position of trust and responsibility, who is proved to have extorted or dishonestly obtained from a member of the public a sum of money, unless there are very special circumstances present, the only appropriate sentence in such a case is a term of imprisonment. The only question is: what is the appropriate term of imprisonment that ought to be imposed in this case. Mr. Winter, with characteristic fairness, has conceded that in his view, having regard to the particular circumstances of this case and the decision of this court quashing the conviction on one charge, the sentence imposed was excessive. I agree. In my view the appropriate sentence is one of 9 months' imprisonment. The appeal against sentence is accordingly allowed to the extent that the sentence of 18 months' imprisonment will be reduced to 9 months' imprisonment. Representation: Sanguinetti (Deacons) for Appellant. M.F. Winter, C.C. for Crown/Respondent. (1) (1962) H.K.L.R. 312 (2) Vol 112 Sol. J. 984 |