Wong Chu and Another v. The Queen

CACC000860/1969

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 860 OF 1969

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Coram: Full Court (Rigby, C.J., Mills-Owens & McMullin, JJ.)

Date of Judgment: 6 June 1970

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JUDGMENT

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1. The two appellants were jointly charged, together with another man, with two charges of demanding money with menaces. The second appellant was also charged with the further offence of assault occasioning actual bodily harm. The case was tried in the Magistrates Court, North Kowloon. At the conclusion of the case for the prosecution the learned magistrate ruled that no prima facie case had been made out against the second and third accused on the first charge of demanding money with menaces and also no case against the third accused on the second charge. Accordingly, he acquitted the second and third accused on these charges. The first and second accused - now the first and second appellants - having thereafter given evidence on their own behalf, at the conclusion of the case the learned magistrate convicted the first appellant on both charges of demanding money with menaces and the second appellant on the second charge of demanding money with menaces and on the charge of assault. The two appellants appealed against their convictions on the charges of demanding money with menaces. When the appeal came before a single judge, for reasons which later become apparent, he referred the case to the Full Court for its consideration.

2. In each case, the particulars of the charge of demanding money with menaces were that the two appellants, on the 19th and 22nd days of September respectively, with menaces, demanded the sum of $3 from the complainant TAM Sui, with intent to steal the same.

3. The facts giving rise to both those charges may be briefly stated. The first appellant is the owner of a public light bus; the second appellant is employed as a conductor of a public light bus. The complainant is also the driver of a public light bus which is owned by his wife. The complainant operated his bus route from Kwun Tong to Hung Hom Ferry Pier. In the course of so doing, he would necessarily pick up and put down passengers in Kwun Tong. Up to some date which is not apparent I would appear that the places at which the operators of such buses could pick up and put down their passengers was controlled by regulation or bye-law, but shortly before the alleged incidents occurred those controls, whether wholly or in part, had been lifted. The evidence against the first appellant in respect of the first charge was this: At about 7.45 p.m. on the 19th September, the complainant was picking up passengers at a place in Ngau Tau Kok Road. Whilst so doing, he was approached by the first appellant and another man. As to what then happened I can do no better than quote from the magistrate's record:-

4. The evidence on the second charge was this: At about 10.45 a.m. on the 22nd September the complainant was sitting in a restaurant with some other bus drivers and/or owners. Whilst there, both appellants came into the restaurant, approached the table at which the complainant was sitting and sat down at the table. Here, again, what then allegedly happened can best be described in the following paragraph, which I quote from the learned magistrate's record of the case:-

"The 1st defendant asked me why I had not been paying him $3.- for ten odd days. I told him Government has already legalised these "buses why should I pay you any dollar. The most I will do is not" 'to pick up passengers at your place.' Then the 2nd defendant abused me with foul language and said if you do not pay the money I will not allow your vehicle to go to Kwun Tong. He said 'If you do not give me the money today I will not accept it to-morrow even if you beg me to do so.' He also said I was the most haughty person there, and added 'There will be harm done to your vehicle if you continue to go to Kwun Tong.' He was abusing me with foul language. I said if he continued I would use the same language to talk back with him. The 1st defendant said he would not accept the money even if I knelt down and begged him to do so. This was before the 2nd defendant spoke at all."

In addition, evidence was given by two other witnesses then present that one or other of the appellants (the witnesses differ as to which of them it was) initially asked the complainant 'what was his decision now', to which the complainant replied indicating that there was no reason for him to pay the 3 dollars a day. Thereafter, a quarrel ensued, the consequence of which was the subject matter of the third charge, being the charge of assault, upon which the second appellant was convicted.

5. The learned magistrate accepted and believed the testimony of the complainant - which, in so far as the incident of the 22nd September was concerned, was corroborated by the said two witnesses - and, in the result, on that evidence convicted the first appellant on both charges of demanding money with menaces and the second appellant only on the charge in relation to the incident of the 22nd September.

6. The question for determination, as it seems to this court, is whether that evidence, accepted as true, can properly be construed as a threat to the complainant that if he did not continue to use their car park and pay them $3 per day they would damage his vehicle and beat him up or whether, on the other hand, the evidence simply constituted an acceptance by the appellants of the complainant's decision not to use their car park and a consequent threat that if he should be seen again in the vicinity of their car park they would damage his vehicle and beat him up. If the evidence supported the former view then undoubtedly it amounted to the demanding of money with menaces. On the other hand, if the evidence supported the latter view then, although it might well justify and support a conviction for criminal intimidation, it did not amount to a demand of money with menaces. We have used the expression "them" but, of course, in so far as the first charge was concerned, the menace, threat and demanding of money, if indeed it was demanding of money, was confined to the first appellant.

7. Mr. Patrick Yu, who appears for both appellants, contended that in so far as the first appellant is concerned, there is no evidence on the first charge to support the conviction. The charge is one of demanding $3 with menaces with intent to steal. The complainant, in the course of cross-examination by the first appellant, himself stated "I agree you did not ask me for money on the 19th September but you asked me to go to your stop in future". We agree that if the evidence was to be restricted to what appears on the record as to what actually occurred on the 19th September it would be difficult, if not impossible, to hold that there was any specific demand by the appellant for $3. In fact, the complainant specifically stated that there was no such express demand. But we think that the subsequent conduct of the first appellant on the 22nd September is both admissible and relevant in considering the true meaning and intention of the first appellant's threats on the 19th September. A demand for money may be implicit or explicit*. If the words spoken by the first appellant on the 19th September were only intended to be an acceptance of the complainant's decision that he did not wish to make use of the first appellant's facilities for operating his motor-bus and a consequent threat that, in those circumstances, he was not to be seen again in the vicinity of the appellant's car park and that if he did his bus would be damaged or he would be assaulted, as distinct from an implied demand that he was to continue to use the car park and to pay $3 per day failing which he and his bus would be broken up, it is difficult to appreciate why the appellant should again have approached the complainant on the 22nd September. The learned magistrate took the view that this was a renewed demand by the first appellant, supported on this occasion by the second appellant, that the complainant was to continue to make use of the first appellant's facilities provided for public light buses, at Kwun Tong, and to continue to pay $3 per day failing which harm would be done to his vehicle.

8. We are satisfied that there was sufficient evidence to support that view of the facts and to sustain the conviction.

9. In conclusion we would add that we are satisfied that there is no substance in counsel's suggestion that since there was no evidence to show illegality in the previous arrangements between the two accused and the complainant and since the complainant was being offered value for money, the whole episode should be regarded as a commercial dispute which had terminated in angry threats rather than as a demand for money.

10. What happened between the accused and the complainant on the 19th and on the 22nd seems to show quite clearly that between those dates the complainant was, to the knowledge of all concerned, and putting the matter at its most favourable to the accused, steadfastly refusing a service which he no longer wished to receive and that he was doing so under threat of injury. Had he given in to the threat and resumed the former relationship to avoid unpleasant consequences, any money he might have paid would rightly be regarded as having been stolen from him (see R. v. McGrath 1870 L.R. 1 C.C.R. 205). Since the accused were well aware that the complainant was unwilling to have further dealings with them there could be no question of a claim of right made in good faith removing from their demand the character of an unlawful exaction.

11. The appeal is accordingly dismissed.

Representation:

P. Yu (Steven Lo & Co.) assigned for both Appellants.

Penlington, S.C.C. for Crown/Respondent.

* Thomas Walter (1968)52 Cr. App.R. p.58 at 63.