Chan Kwok-wa v. The Queen

CACC000580/1980

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Coram: Roberts, C.J., O'Connor and Liu, JJ.

Date of Judgment: 10th October 1980.

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JUDGMENT

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Roberts, C.J.:

1. The appellant was charged with two offences, one of blackmail, involving a demand for $50,000 from Miss Yeung Yuk-cheung with menaces, and the other of theft of $100 from the same Miss Yeung.

2. Leave was given to the appellant by a single judge to appeal against his conviction on both charges. However, counsel for the appellant abandoned the appeal on the second charge at the outset of the appeal and we therefore formally dismissed it.

3. It is unnecessary to refer to the background facts in any detail. In outline, Miss Yeung had, between 1977 and 1979, made a number of nuisance telephone calls to a Dr. Yip and his wife, apparently because she harboured a grievance against the doctor when an operation which he performed on her was not as successful as she would have liked.

4. Eventually Dr. Yip made a report to the police about these calls. As a result of this, Miss Yeung was arrested in August and warned not to bother the doctor further. She made a further call in October, however, and this time was put on bail of $500 by Inspector Chu, who returned the money to her after she had agreed to submit herself to psychiatric treatment.

5. The appellant had taken a statement from Miss Yeung at the time of the complaint in August. He met her again on several occasions thereafter. The meeting between Miss Yeung and the appellant which gave rise to the first charge of blackmail took place in a room in the May Fair Hotel on 30th October. According to her evidence, which was accepted by the trial judge, the defendant came to her room alone at about 12.15 p.m. About 10 minutes later, another person describing himself as Inspector Li from headquarters entered the room. The Inspector said that he was in charge of Dr. Yip's complaint and told her to get dressed and to bring $10,000 for bail purposes.

6. Miss Yeung said that she would have to get some money from the bank, whereupon the Inspector told her that he was leaving and that the appellant should bring the money to Police Headquarters that afternoon.

7. That part of Miss Yeung's evidence on which the conviction on the first charge is founded is as follows -

"After the man claiming to be Inspector Li had left Chan Kwok-wa told me it was Dr. Yip's wife who had offered Inspector Li $10,000 reward to get me to Court. He told me to hurry to the bank to get $50,000 or I would be sent to prison for half a year and it would also implicate him and cause him to be dismissed and that the nurse would also be involved."

8. She added that she "was very frightened" and that she followed his instructions and went with the appellant to the Kwong On Bank and drew $50,000 in notes, which she handed to him.

9. Mr. Kwong submitted that the evidence had not established the offence of blackmail, though the Crown might well have established the commission of an offence against section 4 of the Prevention of Bribery Ordinance, because there was no "demand". In support of this he cited Tsoi Kwok-kuen v. Reg.⁽¹⁾.

10. We do not find this case as of any assistance to the appellant. On the facts of that case, the defendant Tsoi was doing no more than inviting persons to subscribe to an organisation which had been formed in order to make arrangements with the traffic police, whereby persons who were subscribers to the organisation should not be troubled by the police. Tsoi made no demand for money; nor did he apply any form of menaces to potential subscribers.

11. The judge found that the words which Miss Yeung said were used by the appellant amounted to a demand and that the demand was accompanied by menaces. Turning the narrative record into the first person Miss Yeung's evidence would be as follows:

"He told me 'Hurry to the bank and get $50,000 or you'll be sent to prison for half a year'."

This is, without any question, a demand for money, accompanied by menaces.

12. It is unnecessary for us to decide whether the evidence would also have supported a conviction under the Prevention of Bribery Ordinance. All that Ip Chiu v. Reg.⁽²⁾ decides is that if an accused police officer believes that there is a genuine case against the victim and a demand is made to the victim for money, this might either be bribery or blackmail or both. But, if the demanding police officer did not believe that there was a genuine case, it would be blackmail, though not bribery.

13. If Miss Yeung is believed, the evidence supports the charge of blackmail which was brought. The judge accepted her story, after approaching it with great caution. We see no grounds on which we could disagree.

14. The appeal is dismissed.

Representation:

J. Kwong (David K.W. Tsang & Co.) for appellant

E.H. Martin for the Crown/Respondent

(1) Cr. App. 1969 No. 114

(2) Cr. App. 1977 No. 99