Leung Chung-kun v. The Queen

Case No.CACC 551/1978

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000551/1978

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 551 OF 1978

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BETWEEN
	LEUNG Chung-kun	Appellant
	and
	The Queen	Respondent

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Coram: Addison, J.

Date of Judgment: 3rd August, 1978.

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JUDGMENT

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1. This is an appeal against conviction entered on the 11th of May, 1978, by the learned magistrate sitting at Central Magistracy who found the appellant guilty of blackmail contrary to Section 23 of the Theft Ordinance, Chapter 210. He sentenced the appellant to five months' imprisonment. The appellant is unrepresented in this appeal.

2. The appellant who was a detective constable in the Royal Hong Kong Police Force at the time of the commission of this offence was jointly charged with another detective constable who was acquitted at the trial. The reasons for the co-defendant's acquittal have no bearing on this appeal which incidentally is from a re-trial ordered by my brother Cons, J.

3. The particulars of the charge alleged that on the 10th of January, 1978, the appellant, together with his co-defendant, with a view to gain for themselves, made an unwarranted demand to YING Sing-shing of $2,000. That demand, it was alleged, was made with menaces.

4. The case for the prosecution showed that on that day at about 3 a.m. the appellant and his co-accused visited an illegal gambling establishment which was then in progress at Flat C, 11th floor, Lucky Mansion, Austin Road. They went there not for the purpose of closing the establishment or arresting anyone found on those premises but for the purpose of taking part in the gambling which was then going on.

5. The evidence of YING Sing-shing, one of the partners of that illegal gambling establishment, was that the appellant gambled at "pai kau" for approximately half an hour and, when it came his turn to be the banker, he demanded $2,000 in order to continue playing. The appellant sought this sum of money because he was then out of cash and, as a banker, he had to have ready money. The manner in which the appellant sought the money from YING Sing-shing constitutes an essential ingredient in the prosecution's case. According to YING Sing-shing, the appellant was standing with one foot on the chair and he flipped back his jacket thereby exposing the revolver he was then wearing in his holster. According to YING Sing-shing, the appellant said at the same time and fiercely, "If you have no money, how can you operate a gambling house. Close up immediately." Mr. Ying, who had not seen the appellant before, rapidly concluded that he was a police officer. A girl named KONG Yin, who was not called as a witness at the trial, thereafter threw $2,000 to the appellant to relieve the tense atmosphere. The gambling continued.

6. About half an hour later when it was the appellant's turn to be the banker again, he repeated the same gesture by exposing his revolver and again demanded a further $2,000 from the complainant. According to YING Sing-shing, the appellant was even more fierce on this occasion and when he told the appellant he did not have $2,000 to give him the appellant replied, "If no money, close up immediately. The partners closed down. The reason they did so, as stated by them was because they realised he was a police officer and, if they did not, he might arrest them.

7. After closing down, all the customers left, the last persona to leave being the appellant and his co-defendant. At the doorway the appellant is said to have pointed his finger at YING saying. "Promise me $2,000 otherwise don't operate your gaming house."

8. This in substance was the evidence given by that witness. In cross-examination he said that not only was he surprised at the time but he was also frightened by the appellant's behaviour because he was not certain what the appellant might do as he was demanding money in a most aggressive way. Mr. Ying was left in no doubt that the appellant's aim was to get money so as to gamble.

9. There was no dispute in this case that the gambling select did close down after the second demand.

10. CHAN Bun, another partner in the gambling establishment, gave evidence as to the appellant's conduct confirming that given by YING Sing-shing as to the three demands made. He said that he was afraid of being arrested by the appellant along with others. It was suggested to him at the trial that he was not put in fear by what he saw happening any more than he would be in dealing with a customer who lost his temper and he answered briskly, "The difference is that at least a gambler losing his money and temper would not have a gun."

11. The third partner to give evidence for the prosecution was SO Yiu-keung. He was the fourth prosecution witness at the trial. He spoke of the anger noticeable on the appellant's face on his being told by YING Sing-shing that he would not give the appellant money. He too confirmed that the appellant exposed his revolver in the manner stated by the others. He was afraid the appellant might raid the establishment. He also said that on the second occasion the appellant banger on the table and he confirmed that the appellant, when leaving the flat, told YING Sing-shing that, if he did not give him $2,000, he was not to operate the establishment in the future.

12. It was put to that witness as well as to the others that neither the appellant nor his co-defendant was present on that occasion. The prosecution witnesses were certain that they were and in this appeal the appellant has indicated that he was present on that occasion. The appellant did not give evidence at his trial, and it was submitted that the evidence adduced at the hearing was insufficient to warrant a conviction being entered.

13. The defence submitted that there was no evidence of premeditation and that the conduct of the appellant was no more or less than what could reasonably be expected of a disappointed loser who was unable to control his annoyance at having lost. Mr. Corrigan who appeared for the appellant at the trial argued that the main issue was whether the appellant actually menaced these people. He pointed out that no payment was in fact made and that the consequence of that would befall the complainant if he did not pay was never spelt out in clear terms. In short, the submission of the appellant amounted to no more than it being a case of overreaction by both sides in which no menace was made by the appellant whose conduct was exaggerated by witnesses for the prosecution.

14. This theme has been developed by the appellant during the course of this appeal. He said that the learned magistrate was quite wrong to infer that the fourth prosecution witness, who was a triad member, was frightened of being involved in any fight or would likely to have reacted to any demand or threat made. The appellant maintains that the learned magistrate should not have believed the casino organizer when he said that he was afraid of a fight developing. Furthermore, he points out that it would not be reasonable to think that he, the police officer, would in the circumstances have arrested anyone who was present.

15. In his statement of findings the learned magistrate did not advert to the question as to whether in fact there were three separate offences of demanding money with menaces.

16. In the case of R. v. KWONG Fei-ngo^* (1917 XII Hong Kong Law Reports, p. 41) it was held that one count in an indictment alleging demanding money with menaces on seven specified days was not bad for duplicity because the evidence clearly demonstrated a series of continuous threats amounting to one transaction.

17. In this case, where the facts are different, the evidence showed that the appellant was directing his demands to YING Sing-shing on each occasion and, though he gratuitously was given $2,000 by a by-stander, nevertheless there was evidence that he was pursuing a demand for payment from YING Sing-shing who represented the establishment itself.

18. It would be a question of fact as to whether there was one transaction or more than one transaction and the way in which the trial was conducted indicated that both the prosecution and the defence were throughout treating the three demands as a single transaction. I think the learned magistrate was right to regard these three demands as a single transaction having regard to the facts of this case.

19. The learned magistrate addressed himself to the necessity for caution in accepting the evidence of the three unsavory partners, one of whom had triad connections. They were well experienced in running illegal gambling establishments. They well expected trouble from the customers and, no doubt, they had up their sleeves various methods of dealing with situations which might reasonably be expected to occur.

20. The learned magistrate addressed his mind to the question of identification and concluded that the appellant was present with his co-defendant. He came to the conclusion that the story given by the prosecution witnesses was neither concocted nor exaggerated. He reminded himself that conduct could amount to blackmail if "it was of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand."

21. He referred to the case of R. v. Clear^* (1968) 1 Q.B. 670, and he stated in his finding:-

	Naturally, the partners did not know exactly what D2 would do next but the tense atmosphere did tell that even in the minds of these tough and rough people they were obviously in fear of the consequences if they did not close their business. It was suggested by the defence that D2's attitudes were the reactions of an arrogant and angry gambler being refused credits and overreacted to the event. I do not accept that in view of the Crown's evidence it was much more than reactions under stress and disappointment. It was a case of blackmail by D2. I agree that D2's demands were not pre-meditated. However, the defence rightly acceded that what D2 demanded at the later stage in saying, "Promise to give me $2,000 or not to operate" are more specific and by then he is not in need of $2,000. But the defence tried to argue that it was largely an idle threat. Still, I have no doubt in my mind that the first two demands were unwarranted with threats and the 3rd one more clearly so because in uttering the threat for the 3rd time D2 was fully aware that due to his second demand with threat, the gambling was closed. Indeed, his second threat's effect were apparent to him by then. I am of the view that the threats were not idle threats but truly and clearly menaces. Surely, the second demand with threat followed by the refusal to the demand resulted to the immediate closure of the gambling establishment. I am convinced that the gambling would go on for quite a while if not for the second threat of D2 under the circumstances. I am satisfied beyond all reasonable doubt that the Crown has proved the case against D2."
	Section 23(1) of the Theft Ordinance states that:-
	"... a demand with menaces is unwarranted unless the person making it does so in the belief:-

	(a)	that he has reasonable grounds for making the demand; and
	(b)	that the use of the menaces is a proper means of reinforcing the demand."

	Sub-section (2) states:-
	"The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken the person making the demand."

22. Here, the issue was whether the appellant uttered menaces.

23. Menaces are threats which intimidate and which are intended by the utterer to intimidate the person addressed to. The test is essentially a subjective one. It was never suggested nor was it argued by the prosecution that the appellant exhibited his revolver otherwise than to indicate he was a police officer who naturally enough had power to close the premises unless the money he demanded was paid out. The partners did close down the establishment, and, as the magistrate rightly observed, it was unlikely they would have done so unless the threat was taken seriously.

24. During the course of this appeal the appellant has advanced other reasons why the establishment might have closed. He has suggested that it may have been because they were short of cash and he seeks to substantiate that conclusion by the fact that YING Sing-shing did not give him money when he first asked for it. He has further suggested by way of an alternative that they may have closed down because they did not want the appellant to lose face, and he thirdly suggested that they closed down possibly because the atmosphere then prevailing was not good. The reason why they closed down was essentially one of fact for the learned magistrate himself.

25. In SO Sun-fat v. the Queen^* (1969 Hong Kong Law Reports, p. 342) It was held that the Crown need not prove that the intended victim was influenced by the menaces and that the state of mind of the intended victim is a most material circumstance in deciding whether the menaces were of such a quality as to be likely to affect the mind of an ordinarily firm and courageous person.

26. In LIU Sun v. R.^* (Criminal Appeal 215/73) Mr. Justice Pickering, as he then was, said in the appeal heard by the Full Court:-

	In the present case, Mr. Donnally argued, although the complainants had said they were in fear, their actions in continuing to operate their buses at the same place, belied their words and there was no evidence that they were persons of unusual firmness or exceptional courage so that there was nothing to show that the threats would have intimidated persons of ordinary firmness and courage. We find no substance in this argument. In our view, the threats were such, and uttered in such circumstances, as to cause apprehension in persons of ordinary firmness and courage. The witnesses testified that this was the effect which the threats had upon then and the learned judge was entitled to believe that evidence although, on the authority of R. v. Clear it was not necessary for the prosecution to show that the menaces had in fact any effect on the minds of the recipients thereof.
	We conclude therefore, that the threats did amount to menaces and that they did have the effect of putting the witnesses in fear, although it would have been immaterial if this latter effect had not resulted. The offence consists in the acts and intents of the appellant and it is quite beside the point to consider what the effect on the recipient of the menaces might be. That remark applies equally to the statutory wording relating to the charges of criminal intimidation as to that relating to the blackmail charges."

27. There was evidence before the learned magistrate of an unwarranted demand for money being made on three occasions by the appellant who at the time of making those demands did so with a view to gain for himself or with intent to cause lose to the victim. The magistrate had the advantage of seeing the prosecution witnesses and observing their demeanour. He rejected the submission that the appellant's conduct amounted to no more than inadvertent foolish behavious flowing from a bad loser not in control of himself. He found that the appellant had the necessary mens rea to sustain a conviction. I cannot say that the learned magistrate erred in reaching the conclusion he did. In fact no other reasonable conclusion was possible on the evidence which was adduced. Accordingly, this appeal against conviction is dismissed.