Lee Chiu-so v. The Queen
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CACC000706/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 706 OF 1972 -----------------
Coram: Rigby, C.J. Date of Judgment: 16th December, 1972. ----------------- JUDGMENT ----------------- 1. The three appellants, aged 22, 20 and 24 respectively, together with a youth, aged 19, were convicted of the charge of blackmail jointly preferred against them. The 19-year-old youth is a young man named Chan, and he is the brother of the third appellant: it will be convenient to refer to him hereafter as "Chan". 2. The first and second appellants, together with Chan, were also convicted on a further charge of the theft of $400. Upon conviction on the charge of blackmail, all three appellants were sentenced to eighteen months' imprisonment. Upon conviction on the charge of theft, the first and second appellants were also sentenced to three months' imprisonment, such sentence to run concurrently with the sentence of eighteen months' imprisonment passed upon them. All three appellants now appeal against both their convictions and the sentences imposed upon them. Chan who, upon conviction, was sent to a training centre, has not appealed against either conviction or sentence. 3. From whatever angle one looks at the case, it is a thoroughly unpleasant and distasteful one. The evidence given by the complainant, the principal witness called for the prosecution, reeked with falsity and counsel appearing on this appeal for the Crown said, with ample justification, that one would have to go a long way to find a case in which the evidence on both sides, to use his own expression, was "shot through with lies". 4. The complainant is a male hairdresser living in Kowloon; a man who was married within the last year or eighteen months and who, at the time this incident occurred, had a small child. The remarkable story he put before the trial court was this: About 1 a.m. on the 9th August, 1972, he went for a walk to the Star Ferry. In the vicinity of the Star Ferry he met a friend, the first appellant. The first appellant told him that he had nowhere to stay the night and asked him if he could stay the night with him. The complainant replied in the negative. The first appellant then said that he also had a friend with him and he asked the complainant if he could lend them some money to hire a room. The complainant again replied in the negative, but he said that he had a friend who ran a boarding house and that that friend might be able to help. It was then agreed that they should meet nearby at a given rendezvous. The complainant duly arrived and met the first appellant and his friend -the friend was, in fact, the second appellant - and all three of them proceeded by taxi to a boarding house in Saigon Street. Upon entering the boarding house, the complainant saw his friend the proprietor and asked him if he could provide a room for the appellant and his friend whom he, the complainant, described as his two friends. At the same time, for some inexplicable reason, the complainant handed over his diary to the proprietor. The diary contained $20 in notes within it. At the same time, the complainant also handed over $200 in notes to the proprietor. The complainant and the first and second appellant then entered one of the bedrooms. The first appellant said he was thirsty and, at his request, the complainant called for the proprietor, gave him $5 and asked him to buy two bottles of beer. The proprietor left the room to fetch the beer but returned shortly afterwards with another man whom he brought to the entrance of the bedroom and said that this man was looking for someone called Lee. The complainant's name is, in fact, Lee. This other man was, in fact, the 19-year-old youth, Chan. According to the complainant's evidence he did not know this youth and he himself then left the room, A few minutes later the first and second appellants and Chan came out of the room. The complainant protested to the proprietor that he did not know Chan and said that he accordingly wished to cancel the room. The proprietor informed the three persons that if they wanted the room it would cost them $20, where upon the three of them left the boarding house. A few minutes later they returned. The complainant, for some inexplicable reason, was still in the boarding house. According to his evidence these three persons then conducted him backe to the bedroom and bolted the door of the room. Chan then accused the complainant of having taken the first and second appellants to this hotel for the purpose of practising homosexual activities with them and demanded money from him. The complainant denied the allegation and said, in any event, he had no money with him. The first appellant then pointed out that he had seen the complainant deposit his notebook and money with the proprietor of the boarding house. Chan and the first appellant then left the room and later returned with the complainants notebook which they had obtained from the proprietor. The notebook does, in fact, contain a number of addresses and telephone numbers. Chan and the first appellant pointed out that they now had possession of the complainant's notebook and that if he failed to pay that money they would inform his relatives of his homosexual activities. Whilst this conversation was going on, there was a knock at the door and the third appellant entered. The third appellant is, in fact, the brother of the 19 year old youth, Chan. The third appellant repeated the accusation that the complainant had brought these persons there for homosexual activities and that he would have to pay. He was told that he could have his notebook back on payment of $2,000. The complainant protested that he had not got such a considerable amount of money but it was finally agreed that he should meet them at a named coffee shop at 11 p.m. that evening and that he would bring as much money as he could raise. The four men then left the boarding house. 5. According to the complainant's evidence, he did what he could to raise the money but when he was finally unable to do so he decided to report the matter to the police station. He went to the police station at about 5 p.m. that same day; certain instructions were given to him and at the agreed time he proceeded to the coffee shop. He took with him a friend, named Cheung, a 17 year old youth. In the coffee shop were Chan and the first and second appellants. The complainant said that he was unable to raise the sum of $2,000. He was asked how much he could afford to pay and he mentioned the some of $200. That was regarded as insufficient and Chan suggested a figure of at least $1,000. No definite sum appears to have been decided upon but the complainant said that he had $400 with him and he would pay the balance by instalments. He was about to produce the $400 but Chan told him that he should not hand it over in the coffee shop. Chan then told him that the money should be handed over in a taxi outside the coffee shop. The four of them then left the coffee shop. Outside, the complainant produced $400 in $100 notes. Chan asked him to turn them over to see whether or not they were marked. The complainant complied with these instructions and then folded them and handed them to Chan. Plain clothes police officers who were then in the immediate vicinity arrested Chan and the. first and second appellants. The third appellant was not present in the coffee shop but he was arrested later the same evening in another coffee shop. In his possession was found the complainant's notebook. 6. In cross-examination, the complainant admitted that he had previously known the youth Chan and the first and second appellants. He denied. however, that he was an homosexual. He denied that he had had previous homosexual relations with both Chan and the first and second appellants and he denied that he had had homo-sexual relations that very evening. It was put to him that he had a discoloration on the top of his thigh or buttocks and this he denied. However, medical evidence was later given confirming this fact. Some corroborative evidence as to the conversation which took place in the coffee shop was given by the 17-year-old youth. He confirmed the demand for money and he confirmed that when the complainant was about to produce the sum of $400 the youth, Chan, said that it should be handed over in a taxi outside the coffee shop. 7. The defence put forward by the youth Chan and the first and second appellants was that they had, on previous occasions, had homosexual relations with the complainant at this same boarding house, and that the complainant was a passive homosexual. On the first occasion, the 28th July, he had paid each of them the sum of $100. On the second occasion, the 30th July, he had given $100 to be divided between them. On the third occasion, the 5th August, after homosexual activities had taken place, the complainant said he had no money and that he would pay thorn on the next occasion. Arrangements were made to meet again on the evening of the 8th August. On the night of the 8th August, homosexual relations again took place but, again, no payment was made. Chan, and the first and second appellants demanded payment, both for this occasion and for the previous occasion. An argument took place. The complainant denied that he had the money whereupon the first appellant said that he had seen money in the notebook which the complainant had handed over to the boarding house proprietor. The complainant said that the notebook contained only $20 and he authorized the appellants to go and get the notebook from the proprietor. The proprietor himself gave evidence for the prosecution and he confirmed that he had handed the notebook over to one or other of the appellants. Upon returning to the bedroom, it was found that the notebook only contained the sum of $20. The complainant said that they could take that sum of money. An argument took place. The youth, Chan, sensing that there might be trouble, sent the first and second appellants to go and fetch his brother, the third appellant. The third appellant arrived at the seene and asked what was the matter. The youth Chan told his brother that the complainant owed them money but did not disclose to him the nature of the debt. According to the evidence given by the defence, the only part then taken by the fourth appellant was simply to say to the complainant that if, in fact, he owed money then has ought to pay it. The youth, Chan, admitted that the notebook was in his possession but was unable to give any satisfactory explanation as to why he retained it or. indeed, why he gave it to his brother, the third appellant. Indeed, the only explanation which he gave for handing the notebook over to his brother was that he had retained it in his own pocket and that it had felt uncomfortable so he gave it to his brother. Both Chan, and the first and second appellants, denied that at any time they had retained possession of the notebook for the purpose of threatening to disclose to the complainant's relatives or his friends that he was a homosexual. They denied that in the coffee shop they had ever demanded the specific sum of $2,000; they maintained that both at the boarding house and later at the coffee shop all that they had done was to ask the complainant for payment for services they had rendered to him at his request. 8. The very essence of the offence of blackmail consists of the making of an "unwarranted demand with menaces." The law specifically states that:
9. The argument put forward by Mr. Patrick Woo, for the appellants, is the somewhat startling one that in so far as the first and second appellants are concerned this was a demand made by them for payment for services rendered by them and that they genuinely believed they had reasonable grounds for making such a demand. In so far as the third appellant was concerned, it is said that he did no - more than arrive on the scene having been sent for by his young brother, Chan, and simply told the complainant that if, in fact, he owed money - and the third appellant did not know and neither asked nor was informed of the purpose for which the money was allegedly owed - then he ought to pay it. In support of his argument that this was a demand for payment made in good faith, Mr. Patrick Woo has referred to the case of R. v. Bernhard(1). That was a case in which a Hungarian female, a former mistress of the complainant then living in England, sought to enforce a promise made by him to pay her a monthly sum of money for the period of twelve months, by coming to England and there threatening to expose him to his wife and to the public by means of an announcement in a newspaper if he did not make to her a lump sum payment. The complainant reported the matter to the police. A trap was laid and an interview was arranged between the complainant and the female during the course of which the latter repeated her demands for payment and her threats to expose him if he did not make such payment. The woman, Bernhard, was arrested and in due course prosecuted for demanding money with menaces with intent to steal. Her defence was that before coming to England she had been advised by her Hungarian lawyer that she was entitled to demand payment and that she acted throughout in good faith in the belief that she was entitled to make such a demand and to enforce it by threats if it was not complied with. Lord Hewart, C.J., in summing-up to the jury, put the defendant's case, at its best, as an immoral bargain, arising out of immorality and directed the jury that whatever else it might be, it was not a claim of right; it was not a claim of anything which the law could recognise as a right and made in good faith. In effect, he directed the jury that as a matter of law upon the defence put forward they had no alternative but to convict the defendant of the offence as charged. The defendant was accordingly convicted. Upon appeal, the appeal was allowed, the court holding, in effect, that although the learned trial judge might well have been justified in his view that there was a preponderance of evidence against a defence of a claim of right, the question whether that defence was negativedwas an issue which should have been left as a question of fact to the jury. The headnote of the case states:-
10. The decision of the Appellate Court in Bernhard's case(1) was approved and applied in R. v. Skivington(2). In that case the defendant went to the offices of the company where he and his wife were employed. There, he threatened an employee of the company with a knife demanding wages which he claimed were due to him and his wife and the employee, at the point of the knife, gave him two wage packets from a safe. The defendant was subsequently arrested, charged and prosecuted for robbery with aggravation. The defence which he put forward was that he honestly believed that he had a right to the money and, accordingly, he could not be guilty of robbery since an honest belief in a claim of right was a defence to larceny and larceny was an essential ingredient of robbery. The trial judge directed the jury that before they could accept a claim of right as a defence they must be satisfied that the defendant had an honest belief that he was entitled to take the money in the way in which he did. The defendant was convicted. On appeal the convicted was quashed, the Appellate Court holding that the jury were misdirected, for a claim of right where there was an honest belief in a lawful claim, being a defence to larceny, was equally a defence to aggravated larceny such as robbery, in that it negatived one of the ingredients of the offence and that, therefore, it was unnecessary for the defendant to show not only that he had an honest belief that he was entitled to the money but also that he had an honest belief also that he was entitled to take it in the way in which he did. In the course of delivering the judgment of the court in that case, Lord Parker, C.J., said:-
11. For the purpose of providing a defence to the charge, it matters not that the defendant's belief that he had a claim of right when making the demand was in fact unfounded; all that is required is that he himself genuinely believed on reasonable grounds that he had such a claim of right. Furthermore, the textbooks would seem to suggest (see J.C. Smith's "The Law of Theft" p.119 and Edward Griew's "The Theft Act" 1968,p.115, paras. 7-24) that the defendant's belief may be based - and essentially based - not only on a claim of right in law but also (whether wholly or partially is by no means clear) on a moral right. The crucial test would appear to be: Did the defendant genuinely and honestly believe that he had a justifiable claim of right, whether in law or upon moral grounds, when making the demand, with the accompanying menaces, which he did so make? J.C. Smith, in his textbook at p.119, postulates that the answer to that question must be an objective and not a subjective test. He says:-
12. In Hong Kong - and I hope it may long continue to be so - unnatural sexual activities, even when committed in private between consenting adult males, continues to be a serious criminal offence. 13. Prima facie, it is difficult to believe that these young men, the first and second appellants, and the youth, Chan, genuinely believed that they were entitled, whether legally or morally - if one can properly use the word 'morally' in this particular context - to payment for the services which they say they had rendered. It is even more difficult to believe that they genuinely thought, whether on legal or moral grounds, or a combination of both, that they were entitled to make use of the complainant's notebook for the purpose of threatening to expose him to his friends and relations if he did not make payment to them for the services which they say they had rendered. In fact, the appellants themselves all denied that they had at any time made reference to the complainant's notebook or any threat to make use of its contents in the event of him failing to pay them for their services. However. it is quite clear that the learned magistrate expressly believed the complainant's testimony that they did so threaten to make use of his notebook and the complainant's evidence on this matter is, to some extent, corroborated by the testimony of the 17 year old youth who was in the coffee shop and present at the conversation which there took place. A further factor which militates against the argument put forward by Mr. Patrick Woo, on behalf of the appellants, that they genuinely believed that they were entitled to be paid for their services, is the evidence that the first appellant, when offered the money by the complainant inside the coffee shop, declined to accept it there and said that it must be handed over to him in a taxi which he would engage after he had left the coffee shop. It is, of course, true that the money was simply handed over to the youth, Chan, on the payment outside the coffee shop and not in a taxi. The important fact is, however, that he declined to accept it in the coffee shop. The learned magistrate found this as a fact and in that respect the evidence of the complainant was, as I have indicated, to some extent, supported by the 17 year old youth, who was with him inside the coffee shop. If the appellants genuinely believed that they were entitled to payment of the money, why should they or the youth, Chan, on their behalf. have declined to accept it in the coffee shop and insisted that it should be paid outside and in secret? 14. As to the third appellant, the learned magistrate accepted that he was present in the apartment house in the early morning hours of the 9th August and that he was a party to the unwarranted demand for money from the complainant and the threat to disclose the complainant's homosexual acitvities to his relatives and friends if such payment was not made. The thoroughly unsatisfactory explanation by the youth Chan as to why he gave the notebook to the third appellant and the subsequent retention of that notebook by the third appellant was evidence upon which the learned magistrate was entitled to draw, and did draw, the inference that the purpose of the retention of the notebook was in furtherance of the threat to disclose the complainant's homosexual activities to his relatives and to such of his friends as were disclosed in the contents of the notebook, unless such money was paid. 15. For these reasons I am satisfied that the appellants were properly convicted of the offence of blackmail as preferred against them. 16. I turn now to consider the charge of theft of the sum of $400 handed over outside the coffee shop by the complainant to the youth, Chan, in the presence of the first and second appellants, in furtherance of the conversation which had taken place between them inside. Both Chan and the first and second appellants were convicted of this charge. Mr. Patrick Woo submitted that on the evidence, the appellants could not be convicted of theft since the money was voluntarily handed over by the complainant to the youth, Chan in furtherance of a trap deliverately laid by the complainant in conjunction with the police. In support of his argument, he referred to the cases of Arthur John Turvey(3) and Miller and Page (4). The matter is largely academic since upon conviction the sentence of three months imposed was ordered to run concurrently with the sentence of eighteen months' imprisonment imposed on the blackmail charge. Nevertheless, the convictions stand upon the individual records of the appellants and they are quite clearly entitled to challenge the validity of these convictions. For my part, bearing in mind that the money was handed over in furtherance of a police trap for the purpose of obtaining evidence on the far more serious charge of blackmail, I would myself, have considered that it was wholly unnecessary for this additional charge to have been brought at all. It clearly formed part and parcel of the evidence to support the charge of blackmail. I find it sufficient to say that in my judgment the point taken by Mr. Patrick Woo is well-founded. Although the money was handed over in furtherance of the police trap there was, nevertheless, an intentional and voluntary parting by the appellant with his money: that being so, there was no offence of theft nor, indeed, of attempted theft, and the convictions of the first and second appellants on this charge must be quashed and the sentence of three months' imprisonment set aside. 17. Finally, I turn to consider the appeals against sentence. Blackmail is a very serious offence; it is an offence for which, generally speaking, a substantial term of imprisonment is the only appropriate sentence. But this is, fortunately, a very unusual case. It would seem only too apparent from the evidence that the complainant, despite his protests to the contrary, was a practising homosexual and a passive sodomite and he was prepared to pay for his unnatural pleasures and, to that extent, to corrupt other persons. Whilst the second appellant admitted that he had in the past indulged in homosexual activities, the first appellant and the 19 year old youth, Chan, both said it was the first time they had engaged in such activities and that they were induced to do so by the appellant and by the money which he paid to them for that purpose. 18. All three appellants have clear records and have not been in trouble before. At the outset of Mr. Patrick Woo's address to the court on the appeal against sentence, in a manner which, for my part, I found both commendable and most helpful to the court, Crown Counsel rose to his feet to say that on the Crown's submission, having regard to the unusual circumstances of this case, the length of the sentence imposed was, to quote his own word, "inappropriate". He conceded that there may well have been a promise by the complainant to pay for services rendered to him and the conduct of the appellants may have sprung indirectly from the breach of that promise. This concession made on behalf of the Crown was certainly entirely consistent with the view I had myself formed on the facts of the case. 19. The appellants have now been in prison serving their sentence since the 25th August, a period of rather over three and a half months or what would be equivalent to a sentence of approximately five months' imprisonment allowing for remission of sentence for good conduct. Whilst I would not in any way seek to minimize the seriousness of this vicious and unpleasant type of offence, on the particular facts of the case I am satisfied that this court may properly take a more lenient view. 20. The appeal against sentence will be allowed: the sentences of eighteen months' imprisonment imposed on each of the three appellants will be set aside and in lieu thereof the appellants would be sentenced to twelve months' imprisonment, suspended for a period of twelve months. Representation: P. Woo & W. Wanng (Bernard Wong & Co.) for all Appellants. Sherwood, C.C. for Crown/Respondent. (1) (1938) 2 K.B.D. 264. (2) (1968) 1 Q.B.D. 166. (3) (1946) 31 Cr.App. R. 154. (4) (1965) 49 Cr.App. R. 241. |