Ho Kwok Shing v. The Queen
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CACC000058/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 58 OF 1975 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 14th March 1975. ----------------- JUDGMENT ----------------- 1. The Appellant was charged before a Magistrate's Court with four charges; one was of blackmail and three of criminal intimidation. He was acquitted upon the first three of those charges and convicted upon the final charge of criminal intimidation. The actual charge which he faced was criminal intimidation, contrary to s. 24(b)(ii) of the Crimes Ordinance, (Cap. 200) and the particulars were that:
2. The Appellant and this said Madam SHU Wai-hang had been on intimate terms with each other for a considerable length of time, and before this matter arose they had cohabited with each other at various addresses and had taken trips abroad together, for which the Appellant had paid the expenses. Eventually, Madam SHU Wai-hang left the Appellant, and the charge with which we are concerned relates to an undated letter received by her father on the 8th September 1974. That letter reads:
There follows a list of some twenty-five persons and organizations in respect of whom or which the threat to post the photographs was made. One of the individuals was in Taipei, another in Canton. The remaining individuals and organizations all appear to be local and they include five doctors, two newspapers, the teachers and headmaster of the Po Lam School, and somebody who is described as godfather, Mr. Wong, though whether that is Madam SHU Wai-hang's godfather or not is not clear. 3. The photographs referred to were enclosed in the letter. They numbered sixteen and had been taken by the depicted Madam SHU Wai-hang, having been taken by the Appellant, at a time when they were cohabiting. It is not in dispute that the photographs are of an indecent nature and that had the threat to post them to these various individuals and organizations been carried out, that would have had a damaging effect upon the lady's reputation. 4. Mr. Mayne, for the Appellant, put forward three grounds of appeal. The first is that there is no sufficient evidence upon which the learned magistrate could have found the charge proved beyond reasonable doubt against the Appellant, and the gravamen of Mr. Mayne's argument here was that the reference in the letter to returning home was insufficient to amount to a demand that the lady return to cohabit with him. I will say no more of that than that "home" is amplified by the description in brackets "Fa Yuen St." There is no question of where "home" is supposed to be. It is his address. And later on in the letter there is a reference to returning to "my home". The two had cohabited for a considerable period of time and I do not think this letter is capable of any other interpretation than that the requirement was that the lady should return to cohabitation with him. I do not find any substance in this first ground of appeal. 5. The third ground of appeal was that the conviction was unsafe and unsatisfactory, in that the learned magistrate had failed to give any, or any sufficient weight to the explanation given by the appellant as to his reasons for sending the letter to Madam SHU Wai-hang's father. On the basis of a statement made by the appellant to the police, and on the basis of his evidence, Mr. Mayne argues that the reason was not to cause the lady's father to require her to return to cohabitation with the Appellant, but merely to discover her whereabouts. At or about the time this letter was sent, Madam SHU Wai-hang had either suffered a miscarriage, or had undergone an operation for abortion - it is not clear which. But on a date which I think was the 6th September, her mother had telephoned the Appellant telling him of this fact and that Madam Shu was in hospital. 6. Mr. Mayne's argument is that the statement and the evidence show that the Appellant's reason for writing his letter was not to require the father to cause the girl to recommence cohabitation with him, but merely to discover her whereabouts. The statement contains in two places a reference to his being "so anxious" - or "very anxious" - complains that "no-one ever told me where it" - the abortion - was performed, and in his evidence he says that all he knew was that she was in hospital and that he was anxious to see her. To this interpretation Mr. Haldane, for the Crown, replies that if anxiety to see the girl was the reason for the letter, the letter was completely unnecessary in that the Appellant had only to ask the girl's mother where she was in order to ascertain her whereabouts; but that so far from doing that, he had personally delivered the letter containing the photographs to the address at which the girl's mother and father lived, and there was no evidence that at that or any other time he had asked the mother where the girl was. He had, it is true, asked a friend of the girl's, who had refused to tell him. As it seems to me the explanation that the letter was borne of anxiety to see the girl is a wholly spurious explanation, and this ground of appeal must also fail. 7. Perhaps more substance is to be found in Mr. Mayne's middle ground of appeal, which was that the conviction was unsafe and unsatisfactory, in that the learned magistrate failed to direct himself, or mis-directed himself, as to the intent required in the offence of criminal intimidation. The relevant parts of s.24 of the Crimes Ordinance read:
There is thus a necessity for a threat, and an intention that the person threatened, or some other person, is to do or cause to have done some act which that individual is not legally bound to perform. 8. In relation to this particular charge, the learned magistrate, in the course of his judgment, said:
Mr. Mayne's complaint about this is that whereas the extract rightly identifies a threat, it goes on to speak of intent to cause injury to the reputation of Madam SHU Wai-hang whereas what was needed under the Ordinance was not an intent to cause such injury but an intent to cause her father to perform some act which he was not legally bound to do. 9. It seems to me that however the learned magistrate may have expressed himself, all the ingredients of this offence were there. What the real complaint about that extract is, in my view, is that the phraseology is not quite complete. There was an intent to cause injury to her reputation - which is referred to in the extract - unless her father did what was required of him. That is, induced the girl to return to the Appellant - to cohabitation with the Appellant. Had those words been added, the phrase would have been unexceptionable. It is not so much a mis-statement as an incomplete statement; but all the ingredients of the offence were there, and had the learned magistrate stated those ingredients with complete perfection and then tested them against the evidence, he could have come to no other conclusion. 10. There has been no miscarriage of justice; the evidence amply justified the conviction and the appeal must be dismissed. Representation: R. Mayne (H.H. Lau & Co.) for appellant Haldane, C.C., for respondent. |