Lai Chiu Hung and Another v. The Queen
|
CACC000774/1979
IN THE SUPREME COURT OF HONG KONG (CRIMINAL JURISDICTION) CRIMINAL APPEAL NO. 774 OF 1979 -----------------
Coram: Silke, J. in Court Date of Judgment: 31 August 1979 ----------------- JUDGMENT ----------------- 1. The first appellant was charged with blackmail. 2. The second appellant was charged with aiding and abetting blackmail. Both were convicted. 3. The trial took an unusual and unsatisfactory course. 4. What happened was this: a document called "Brief Facts of the Case" was agreed by both representatives of the appellants in the Court below: not the counsel representing them here. 5. I am not aware what part the prosecutor took, if any, in this agreement as the record simply reads "Facts are agreed by both counsel - ExP1". 6. Immediately upon this being recorded submissions of no case were made. 7. These were rejected and neither of the appellants gave evidence. 8. The "Brief Facts" stated that there was a demand for the sum of $14,000 for the release of illegal immigrants, one of whom was the son of PW1. These immigrants were being "taken care of" by the first appellant and another defendant not before this Court. 9. PW1 and another person went to a cinema, PW1 carrying a Winston cigarette packet and a rolled newspaper as a sign. There they were met by the second appellant who told them to follow him to another place to meet the first appellant. They did so and informed the first appellant - the second appellant being present - that they could only raise $4,000. This was rejected, the appellants walked away, they were chased by PW1, seen by a party of police, stopped, and all were brought to a police station. 10. Under caution the first appellant admitted he and another defendant arranged to obtain money from PW1 for the release of PW1's relatives. 11. The second appellant said he knew nothing about this and only did as he was told by his brother, the first appellant. 12. Leaving aside that which the defendant not before this Court was stated to have said this was the sum total of the evidence against the appellants. 13. That the first appellant did involve himself in a demand which was unwarranted is clear. 14. The appeal turns on "menaces" and whether or not they emerged from that "Brief Facts of the Case". 15. Menaces is not limited to threats of violence but includes threats of action detrimental to the person addressed. Here the threat was to refuse to release the relatives of PW1: this in my view can be clearly implied from the demand for money for their release and was a proper inference for the Learned Trial Magistrate to draw. 16. He went a little far perhaps in his brief judgment on the spot which he added that it amounted to a threat they would be turned over to the police. 17. Having considered all the circumstances I think the Learned Magistrate was right in holding that "menaces" did exist and that he came to the right conclusion as to the first appellant. 18. In respect of the second appellant, however, the position is somewhat different. He claimed - and this was apparently accepted by the prosecutor - that he knew nothing and only did that which he was told to do. 19. However the only part the prosecutor is recorded as having played in the trial was to say, at the conclusion of the submissions of no case, "I am in no position to argue the law". 20. It is correct that he led the victim to the first appellant, recognising the sign given, and that he was present when the $4,000 was refused. To support the conviction for aiding and abetting blackmail there should have been something more. 21. As I said I thought the course the trial took to be unsatisfactory. It is not the purpose of section 65C Criminal Procedure Ordinance CAP 221. 22. That much abused section refers to "any fact" being admitted. The fact to be admitted should be set out in full and, if there is more than one fact, each should be numbered. 23. In respect of each there should be a specific admission by the prosecutor or the defendant, whoever is making the admission, of what precisely it is that is being admitted. 24. An amorphous mass such as the "Brief Facts" here - including reference to exculpatory Statements - is not a fit subject for an admission under the provisions of section 65C. 25. Paper trials, especially where the prosecutor is unqualified, are to be deprecated. It is the reason why, in the course of the hearing of the Appeal, I made mention of the possibility of a retrial. The prosecutor here should not have accepted the admission of the appellants made through their representatives and should have called his evidence. 26. An unseemly rush by those representing defendants to admit facts upon which they clearly hope to make a successful submission of no case is not to be encouraged. 27. However I think the first appellant to have been rightly convicted and his appeal is dismissed. 28. I am not, however, satisfied that the second appellant was on the evidence, if it can be called that, rightly convicted. The inference that he "must have known the nature of the transaction" is not the only one that could be drawn. 29. I had considered sending back for a retrial but have come to the conclusion, in all the circumstances, that it would not be right to do so. The appeal of the second appellant is therefore allowed and the conviction quashed.
Representation: John Mullick Esq. instructed by Clayton Wong & Co. for both Appellants I. G. Cross Esq. Crown Counsel, for Respondent |