Li Chun Ki v. The Queen
Read the full judgment text of CACC 1023/1974 on BabelCite. This Court of Appeal judgment.
1. The appellant was originally charged with twenty-six counts of Demanding with Menaces. At the end of the prosecution case, the prosecution offered no evidence in respect of thirteen counts and the learned magistrate convicted the appellant of the offence of Demanding with Menaces on the other thirteen counts.
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CACC001023/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1023 OF 1974 -----------------
----------------- Coram: Li, J. Date of Judgment: 24th December, 1974 ----------------- JUDGMENT ----------------- 1. The appellant was originally charged with twenty-six counts of Demanding with Menaces. At the end of the prosecution case, the prosecution offered no evidence in respect of thirteen counts and the learned magistrate convicted the appellant of the offence of Demanding with Menaces on the other thirteen counts. 2. The facts relating to the thirteen counts with which the appellant was convicted are straightforward and simple. Evidence disclosed that on various dates and times at the Kwai Shing Estate in Tsuen Wan, the appellant approached various public light bus drivers individually at the public light bus terminus and demanded money at the rate of $5 per day. His modus operandi was such that in respect of one driver, he said that "this is the usual terminus fee to pay" or "if you use the terminus, you have to pay fees". In respect of another driver, he would say "this is the due date for terminus fees". In some cases he said so in a rather ferocious manner and used bad language. In other cases, he merely said the words "due date" or the words "terminus fee", or that "it is time due for the terminus fee". Some witnesses for the prosecution said that he asked for the fees in an unfriendly manner. Some said that he asked for the money in a solemn manner and some said that he asked for the money with a smiling approach. However, all of them admitted - I mean the drivers - that they paid because they feared that if they did not, they would not be allowed to run that route or, alternatively, that their car might be damaged. All of them agreed that they paid the appellant because they were timid. They did not want any trouble. One witness, Mr. LEUNG Yiu-chung, said that he read newspapers and watched television and talked to other public light bus drivers and that was what affected his decision to pay money to the appellant. Some others said that "If I did not pay him, he might be undriendly to me". Other said that "If I paid him, he was more friendly to me". Out of the conviction of the thirteen counts, the learned magistrate awarded sentences in respect of six counts of six months each to run consecutively, and the rest of the counts of six months each to run concurrently, making a total of thirty-six months imprisonment. 3. The appellant appealed against conviction as well as against sentence. In his additional grounds for appeal, it is contended that there was no evidence or no sufficient evidence of any threats being made by the appellant to any of the drivers who gave evidence in the trial in respect of the charges "A", "B", "C", "D", "E", "F", "G", "H", "I", "J", "L", "R" and "Y". These are the counts of which the appellant was convicted. The second ground is that the learned magistrate erred in his finding that such threats are always construed liberally by the courts as there was no such threat at all. The third ground of appeal is that the learned magistrate erred in finding that the said driver witnesses' only fault was a reluctance to say too much or too directly as there was no evidence that there was too much or too directly to be said and the learned magistrate erred in making assumptions when there was no evidence to support the same. The 4th ground of appeal is that the learned magistrate erred in finding that any or all of the said driver witnesses frequently gave the more damning evidence against the defendant in their answers to defence counsel's cross-examination and many relative gaps were filled in that manner. And, lastly, the 5th ground of appeal against conviction is that the learned magistrate erred in failing to apply a subjective test to the question of whether any or which of the said driver witnesses, who were men of ordinary, reasonable courage and strength, were intimidated by any menace and failed to find what menace had been used. 4. On behalf of the appellant, Mr. Gunston submits that there was no evidence of any menace being administered by the appellant to any of the drivers on evidence. He draws my attention to the case of the Full Court in LIU San v. the Queen (1) and attempts to distinguish the present case from that case. He also directs my attention and to distinguish the case that was cited by the learned magistrate in his case stated: viz. R. v. Collister&John Warhurst (2). On the other hand, learned counsel for the Crown submits that where there is a first threat that had been put through, then any subsequent demand of payment can relate back to the original threat and becomes a separate act of "demanding by menaces". Such principle may be spread out to a group of persons, if subsequent persons being demanded of money paid because of the original threat. 5. He further expands his contention that in the evidence, there are two groups of persons: some had personal earlier experience of the demand, as much as two years ago, and some had experience by contact with other drivers because they all paid. The learned magistrate, in his findings, said this:
6. The law as applied by the learned magistrate is quite correct and supported by the case of Regina v. Collister & Warhurst (2). However, the facts of that case are quite distinguishable from the facts of the present case. In that case, there was a Constable who caught hold of a person who had some previous convictions and told another fellow officer that the other person, the victim, was importuning. Then both officers acted as if they were about to take the victim into a Police Station for questioning. Even if they did not say so in so many words, their conduct and their position as a peace-officers was sufficient to indicate to the victim that importuning was a crime in England and the viction was liable to be arrested by a Police Officer. It was on that basis that the Court of Criminal Appeal decided that such menaces might exist depending on the circumstances and the demeanour of the person who demanded it. In the case of LIU San v. the Queen, the Full Court's decision centred only on the effect of the victim. There was, in that case, a clear threat accompanying the demand. So neither case is of much assistance for the decision of this case. Having looked at the evidence as a whole, I must observe that whatever was the real cause for the victims to pay their money in all these charges, there was no threat accompanying the demand for payments. 7. The conduct of the appellant in one or two instances was said to be ferocious, firm or rude. But all the prosecution witnesses, who were bus drivers, came up in one voice in evidence that they knew that such terminus was part of public thoroughfare, earmarked by the Government for parking of public light buses. They all knew that the appellant had no right to ask for money. They paid because they did not want to be in the bad book of the appellant. There might be more than meets the eye. However, none of the victim was straightforward enough or brave enough to come out and say what was the real cause for their payment. The learned magistrate, with due respect, is not entitled to say that their fault was a reluctance to say too much or too directly. If they refused to say too much or too directly, the magistrate would have no option but to adjudicate the case in accordance with the rules of the evidence and not to supplement the lack of evidence by his knowledge of the local condition. Otherwise, the case would have been decided by hearsay evidence of which, in fact, there are one or two instances that such evidence was allowed to creep in through the back-door; e.g. one witness said: "I heard stories", while another said: "I have been told that a person who did not pay had his tyre deflated". That had no connection with the appellant and that was hearsay evidence. 8. Admittedly, in his defence, the appellant gave evidence and said that the payment was either in settlement of a gambling debt, or for services rendered for cleaning the vehicles. That might have been untrue. However, it is for the prosecution to establish the guilt of a defendant and not for the defence to prove his innocence and that burden never shifts. When I look at the evidence as a whole, I cannot find any threats directly administered to any of the bus drivers, nor had there been any previous threat that was administered by anybody in connection or to be connected with the appellant. 9. The learned magistrate said that he considered each case separately. I have no doubt that he did and I have no dispute with it. However, he also mentioned that:
10. Well, from this statement I beg to differ. The only reason why all these charges could be put together is because of the provision of Section 10 of the Magistrates Ordinance which follows the spirit of the indictment rules. Otherwise there would have to be separate charges. 11. In so far as the similar facts are concerned, my understanding is that evidence might be adduced of previous convictions of offences similar to the offence charged, so as to negative an innocent explanation or to prove identity or a system. That is well-established in the case of Makin v. the Attorney General of New South Wales (3). However, this case is very different. This is a hearing of some thirteen charges joined together. None of them is a previous conviction, but allegation of a similar crime. I say this with deference to the learned magistrate that he, although considered the charges separately, has shown a misunderstanding of this particular rule of evidence. It is not right to say that thirteen accusations can combine to prove a system. I look at the charges individually, the charges of which the appellant is convicted. I have gone through the records and find that in all individual cases, the appellant certainly had made a demand and the demand was made with no justification. At the same time, I find that there is no sufficient evidence to show that such demand in each case was accompanied by a threat whether express or imply to either the person of the payee or his property. Having come to this conclusion, the appellant must be acquitted of the charges and, accordingly, the conviction of all thirteen counts must be quashed and the appellant is discharged. The question of an appeal against sentence in this instance will now become academic. 12. LI Chun-ki, I have now quashed all the convictions. You are, therefore, discharged. However, let me say this much - it is not my function to give advice. From my experience and my reading of the records, the sole reason why I quashed these convictions is only because witnesses had given no evidence of any threats. But there was no justification for you to demand any money at all. I am quite satisfied that demand has been proved. Do not sail too close to the wind in the future and get out of trouble! Representation: (1) C.A. No 215 of 1973 (2) 39 C.A.R. 100 of 1955 (3) (1984) A.C. 57 |