Yu Ka Yue v. The Queen
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CACC000712/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 712 OF 1973 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 8th November 1973. ----------------- JUDGMENT ----------------- 1. The appellant, who was just below the age of 16 at the date of his offences, was convicted on three charges of blackmail and sentenced to be placed on probation for one year. Previously he had a clear record. 2. He does not appeal against his conviction on the first and third charges but does so against the conviction on the second charge. Originally there was an appeal against his sentence of one year's probation, but at the hearing his counsel said that he could not argue the appeal against sentence and I need say no more about that appeal than that it is dismissed. 3. The brief facts of the offences are that the appellant approached three schoolmates one morning outside the school, made a demand for $36.60 from each of the boys named in the first and third charges under the threat that they would be beaten up if they failed to pay, and allegedly made a similar demand from the boy named in the second charge, the conviction upon which charge is the subject of this appeal. 4. The only evidence in connection with the demand alleged to have been made in connection with the second charge came from the alleged victim of that demand, whose evidence ran:
The last sentence, as given in evidence, is meaningless. That this was apparent to the learned magistrate is clear from the careful note which she made in the margin of her record at that point, which note reads "Interpreter cannot tell meaning and witness does not know". That note appears to refer to the characters romanised as "Mang Wui Kau" since these are underlined in the record at the point where the marginal note appears; and indeed, it is upon these three characters that Mr. Patrick Yu, for the appellant, seizes describing them, and therefore the sentence in which they occur, as unintelligible. The sentence, he argues, cannot be considered as a demand. 5. The learned magistrate was clearly aware of the unintelligibility of the three characters, but appears to have drawn the inference from the fact of the demand on the other two boys, that there was in fact a demand upon the boy named in the second charge. Had there been a single charge relating to a demand made jointly upon the three boys such an inference might have been justified: but the three alleged demands were separated to constitute three separate charges and the unintelligibility of the second alleged demand cannot be easily cured by reference to the other two demands. Even if the characters "Mang Wui Kau" be considered as a proper name then it would appear that the demand was not for $36.60 to be paid to the appellant but to be paid to Mang Wui Kau, and since the charge specifically alleges that the appellant made an unwarranted demand "with a view to gain for himself", it is clear that if that is the proper construction of the three characters the demand was not in fact with a view to gain for himself. 6. In all the circumstances I consider the conviction on this single charge to be unsafe and the appeal upon that charge is allowed and the conviction quashed. Representation: Patrick Yu (J.S. & M.) assigned for appellant Niamatullah, C.C., for respondent. |