Tsoi Kwok Kuen and Others v. The Queen

CACC000114/1969

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 114 OF 1969

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(On appeal from V.D.C. Crim. Case No. 52 of 1968)

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Coram: Rigby, S.P.J. & Huggins, J.

Date of Judgment: 28 May 1969

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REASONS FOR JUDGMENT

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Rigby, S.P.J.:

The appellant (to whom we will hereafter refer as the accused) was convicted upon two counts, to wit, one count of conspiracy to demand money with menaces and with intent to steal the same, and the second count being for the substantive offence of demanding money with menaces with intent to steal from a named person.

2.At his trial he was also charged with two further counts of demanding money with menaces from two other named persons, but the learned Judge held - and I quote his words:

".......... that the prosecution evidence adduced was so weak that without hearing the defendant (who neither gave nor called any evidence) or his counsel, I found him not guilty of those two charges."

3.The accused appealed against his conviction and, at the conclusion of the hearing of the appeal, we allowed the appeal and quashed the conviction on both counts intimating that we would give our reasons for so doing at a later date. We now do so.

4.It is of prime importance carefully to consider the particulars of the charge of conspiracy preferred against the accused: they were that he, together with two other named persons, between the 1st May, 1968 and the 31st October, 1968, conspired together - and I now quote from the charge itself:

"... to demand money with menaces and with intent to steal the same, that is to say, to demand with intent to steal, and thereby to extort and steal money from drivers and owners of mini-buses operating for hire and reward on the island of Hong Kong by the threat that, unless the money demanded was paid, the attention of the Traffic Branch of the Hong Kong Police would be drawn to the use to which they, the said drivers and owners, were putting their vehicles and to their failure to pay the sum demanded, to the end that Police action should be taken against them and that they should be prosecuted for traffic offences."

5.The second count was for the substantive offence of demanding three hundred dollars with menaces or by force, from a named person, with intent to steal the same. The facts of the case are very fully set out in the admirably careful and lucid judgment of the learned trial Judge. I cannot do better than quote from the opening paragraphs of the learned Judge's "Reasons for Verdict and Sentence":

6.The amalgamation or merger of the three Associations into one overall Association appears to have taken place in or around Hong Kong Week, a period which was never more closely defined than in September or October 1967. The merger itself was heralded and announced by a dinner at which a considerable number of the subscribing members of all three Associations were present. It is pertinent to observe that both the accused and his two fellow conspirators were themselves employed as drivers of mini-vans and that all the members of these three Assocations were, like themselves, either mini-van drivers or the owners of such mini-vans. There was evidence that at all material times there were one hundred and twenty such mini-van operations in Hong Kong, that to the best of the knowledge of the only police officer who gave evidence in this case, all of them were interviewed in connection with this case, and that ten out of the eleven witnesses who gave evidence in the case were either drivers or van attendants.

7.According to the evidence of one of the witnesses called at the trial, Cheung Kau, a fellow conspirator and said to be the ring-leader of the organisation, addressed the gathering in these terms:

"'You people coming out to make a living, you have to be smart. I am now going to tell you under what conditions our Company will be responsible. You should not let passengers alight and board at bus and tram-stops. If ever you receive a ticket for doing so, our Company will not be responsible. If you cross a red-light or zebra crossing our Company will not be held responsible. If you carry excess passengers and get a ticket you can ring up the Company and the Company will fix it for you. If you do receive a summons and a fine is imposed take the receipt to the Company and the money will be refunded to you. But do remember two vital points. You should not let passengers board and alight at traffic black-spots, at traffic lights near post office. If you let them alight and board there, fine will be very heavy. Over Causeway Bay between Roxy and Magistracy at tram-stop is another black-spot. Again fine likely to be very heavy.' The most important thing he mentioned was that the $500.00 admission fee would not be refunded even if we stopped running and no transfers were allowed. 'You have to pay attention to paying your squeeze 'money.'"

8.Pausing here for a moment, it would seem abundantly clear that these words were intended as a warning to those present as to the limits of liability the organisation could accept and the limit to which it could successfully avoid the consequences in the event of its members committing some blatant traffic contravention in the more crowded and conspicuous areas for picking up and putting down passengers.

9.As the learned Judge himself said - and rightly so -

"There was never any doubt that the accused was concerned in a protection racket of some magnitude."

It was, beyond doubt, a conspiracy to prevent the proper administration of the law - and/or to effect a public mischief - by seeking to deter police traffic officers, by corrupt payments to them, from doing their duty in regard to any traffic contraventions that had, or might have been, committed by those persons who were subscribing members of this organisation. But on the basis of the payments admittedly made by the prosecution witnesses, - according to their own evidence - could it be said that there was a conspiracy to demand money from those witnesses with menaces with intent to steal? This Court is fully satisfied that no such charge was proved - or certainly not proved beyond reasonable doubt. Witness after witness clearly stated that the money was paid by him, or her, to either the accused or one of his co-conspirators, so that if he or she got into any trouble with the traffic police in the course of running his, or her, mini-van the matter would be "fixed up". The crux of the case, as the learned Judge himself appreciated - and we quote his own words - was:

"... whether the payments made, although demanded, were essentially voluntary payments for the purpose of purchasing immunity from police interference and, if this failed, operating as an insurance against fines, or whether there was some element of compulsion about the payments induced by 'threats and conduct 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.'" (R. v. Clear)⁽¹⁾

10.Again, at a later stage he said, and again we quote:

"If the sole reason for the payments was that the witnesses were only too happy to make them in order to buy off the police and to continue unmolested in their lucrative trade, then it could hardly be said that they were the result of a demand with menaces."

11.Then the learned Judge made reference to the case of R. v. Collister and Warhurst⁽²⁾ where the Court of Criminal Appeal upheld a direction given by the trial Judge in that case to the jury that:

"If the evidence satisfies you that an ordinary and reasonable man would understand a demand for money was being made upon him and the demand was accompanied by menaces .......... then you would be justified in coming to the conclusion that a demand with menaces had been made."

But the vitally important factor for consideration must necessarily be as to whether or not the menaces proceeded from, or were made by, the person who demanded, the money. If there had been any evidence that the accused or either of his fellow conspirators had made it clear to any of the witnesses that if their continuing subscriptions were not paid the accused, or either of his fellow conspirators, would personally make it their business to see that the defaulting subscriber was stopped and charged by the police for some breach of a traffic regulation, whether real or imaginary, that would have been a very different matter and such evidence, if believed, would have fully supported the charge. But the whole of the evidence clearly indicated and supported the irresistible view that witnesses paid, and continued to pay, their subscriptions to the accused and his fellow conspirators to provide immunity from being troubled by the traffic police. It is sufficient to quote from the evidence of some of these witnesses:

"If I paid, police would not take action against me. I paid money and no one came to give me trouble ... If I did not pay it, traffic policemen would give us trouble ...... I paid him (Cheung Kau) so he could fix things for me with the policemen - traffic."

"If I had not paid, I would get summonses for excessive smoke, excessive passengers, pak pei, etc. ...... I paid these sums so that Cheung Kau could fix up matters for me with the traffic office. If a summons was issued, a phone call would be made. Even if a fine was imposed, production of the receipt would obtain refund of the fine if one was paid up. I would leave it to Cheung Kau to fix it with the traffic office not to proceed against my driver, or, alternatively, to refund the fine if one was imposed. I was happy to pay for these services."

"I made the payments because Cheung Kau and other people from the company said if payments were not made, particulars would be taken by the police .... If I did not pay, I think plain-clothes men might board the van and particulars might be taken ..... Cheung Kau said, 'If you receive a summons, ring me and I will have it settled for you.'"

"I paid so that if my van should get into trouble, the company could fix it up, and if a fine had to be paid, refunded ...... The understanding was that if you paid money and got into trouble with the traffic police, you ring the company and the company would see what it could do for you."

"The payments to Cheung Kau were made so that if the van was in trouble with the traffic police, I could inform him and he would try to fix it for me ...... If we could fix matters, it saved going to Court and business could be carried on from day to day."

"During the time I did pay, the object was that if I did get into trouble, I could inform any one of the three and they would fix it up for me - either all three or any one of them. They would be at the office, at times this one, at times that one. So long as I informed one of them, they could fix things up. That was why I paid."

"I paid this squeeze money because running a van on the road, we have to try to get as much convenience as possible. At times the vans might contravene traffic regulations and particulars would be taken, and to avoid interference from the policemen "squeeze" had to be paid."

"If I paid and got into trouble with police, the company might be able to fix things for me."

12.The learned Judge, in dealing with the foundations of the conspiracy, has said that the original "demand" for payment was made in the speech of Cheung Kau at the dinner to which we have earlier referred. With respect, we are, in the light of the evidence given by the witnesses, unable to agree that that was a "demand" for money - much less a demand made with menaces; it was an invitation to those present to subscribe, or to continue to subscribe, to the organisation for the avowed purpose of making arrangements with the traffic police whereby those persons who were subscribera to the organisation should not be troubled by the police.

13.Again, at a later stage in the course of his grounds for decision, the learned Judge has referred to the evidence of P.W.6 in which he said that Cheung Kau had told him that if payments were not made particulars would be taken by the police. The learned Judge described that as a "naked threat" on the part of Cheung Kau in furtherance of the conspiracy to demand money with menaces from these mini-drivers with intent to steal. Again, with respect, we do not agree. We do not think this single sentence can be isolated from the rest of the evidence given by these witnesses, the whole tenor of which was quite clearly that if subscriptions were not paid, or were allowed to lapse, then trouble from the traffic police could be expected. The "menaces" emanated not from the accused or his fellow conspirators but consisted of a plain statement of fact as to what could be contemplated or expected from the police if payments were not made. Although it is right to say that there was no evidence whatsoever of any nexus or connection between the accused and his fellow conspirators and any member of the traffic police, it was palpably clear from start to finish that the whole purpose and intention of the organisation was a financial arrangement with members of the traffic police whereby, in consideration of payment, those subscribing members of the organisation should receive a measure of immunity from the traffic police in the running of their mini-vans. It would seem an irresistible inference that in consideration for organising such an association the accused and his fellow conspirators, in addition to such of the members of the traffic police who were parties to this nefarious and corrupt plan, should receive some measure of payment for their trouble.

14.This is a disgraceful case. Quite clearly the accused and his fellow conspirators - and, indeed, those persons who subscribed to the organisation - were parties to an unlawful agreement, to wit, a conspiracy to corrupt and pervert the proper administration of the law and/or to effect a public mischief. But we were fully satisifed upon the evidence upon the record that the accused was not guilty of the offence of which he was charged and convicted, to wit, the offence of conspiracy to demand money with menaces with intent to steal. We were satisfied that the moneys were willingly paid over by the guilty subscribers to this organisation in the hope, and with the expectation, that all, or a substantial part of it, would be paid to members of the traffic police to ensure such subscribers a measure of immunity in the running of their mini-vans. For the same reason we were satisfied that the accused was wrongly convicted in respect of the second charge of demanding with menaces, with intent to steal, the sum of three hundred dollars from the person named in that charge. It was for these reasons that we allowed this appeal and quashed the convictions.

Representation:

P. Yu (H.H. Lau & Co.) for Appellant.

M. Wong, C.C. for Crown/Respondent.

(1) (1968) 52 Cr. App. Rep. 58.

(2) (1955) 39 Cr. App. Rep. 100.