Lau Kam-tau v. The Queen
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CACC000946/1982
BETWEEN
----------- Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ. A. Date: 21st February 1983 ___________ JUDGMENT ___________ Sir Alan Huggins, V.-P. : 1. The Applicant renews his application for leave to appeal against his convictions of four offences - common assault (charge 1), blackmail (charge 3), handling stolen goods (charge 5) and theft (charge 6). 2. The alleged offences arose in connection with an illegal supply of water and electricity to a squatter area. It was not in dispute that a man called Wong Ping-kuen had unlawfully tapped mains supplies and was providing stolen water and electricity to residents who were willing to pay him the fees he demanded. He employed four men, who included this Applicant, to install the necessary electric cables for the residents who paid, and to dis-connect the cables of those who failed to pay sums which he subsequently demanded. 3. As to the first charge, which was laid as one of attempted robbery, the judge found that at 11.45 p.m. on 26th December 1981 these four men went to the home of Jim Tse-chung. Jim had testified that he did not know the men, that they were carrying pliers and a saw, that one of then hit him with a torch, that they searched his house but that, as he had no money, they robbed some of his friends who were inside the house. The judge's conclusion on this evidence was:
(The meaning of this-passage is far from clear. However, it is conceded on behalf of the Applicant that "Defendant's" should probably read "Defendants' ".) In relation to the third charge, alleging another offence on the same night, the judge said:
Unfortunately he nowhere indicated what was the "force" which he found to have been used or in what way Jim had exaggerated, nor was it clear what the judge intended to convey when he placed the word "armed" in inverted commas. Mr. Huggins submitted that the absence of any express finding that one of the men hit Jim with a torch, coupled with the statement that Jim was exaggerating and the reference to the intruders' being "armed" and in a gang, led to the possibility that the "assault" found by the judge consisted of the presence of the four men, armed, and their making what the judge said was an unwarranted demand. In view of the fact that the judge was convicting the Applicant of an assault with which he had not been expressly charged, one would have expected that he would make a clear finding as to the nature of the assault and, in the circumstances, we are bound to say that we find the conviction on charge 1 unsafe and unsatisfactory. 4. The third charge related to events on the same night when the four men went to the house of one Wong Ping-kwai. They asked him to pay $500 electricity charges, although he had said, in answer to a question put to him, that he had provided his own electricity, meaning (no doubt) that he had himself tapped the mains supply. As we have seen, the judge regarded the presence together of the four "armed" men as the clearest evidence of intimidation. He further stated that the demand was unwarranted. It was argued, first, that there was no evidence of intimidation, but, if the demand was unwarranted, it seems to us not to matter that the tools with which the men were "armed" may have been intended for use in dis-connecting the supply rather than with violence against the person of the householder: the situation was such that a threat might reasonably be inferred, particularly as Wong described their manner, after he had said that he had no money, as "aggressive" and said that they pulled down his wires in spite of his claim to have installed them himself. There is, however, an alternative argument, namely that the judge did not apply his mind to the question whether the Applicant believed that there were reasonable grounds for making the demand. The only basis upon which the judge could have found that the demand was unwarranted was that the men, by reason of their asking Wong the question Who had provided electricity?, could not have had any honest belief that they were justified in demanding payment from him. However, the evidence of the Applicant - which was not analysed by the judge - was that, if Wong Ping-kwai had electricity in his house, it could only have come from Wong Ping-Kuen's system, and that it had, therefore, been stolen from Wong Ping-kuen and that Wong Ping-kuen was entitled to payment or to dis-connect the supply in default of payment. It may well be that, had he considered the matter, the judge would have disbelieved the Applicant's evidence, but he would not necessarily have done so. Accordingly the verdict on this charge cannot stand. 5. It is common ground that the verdicts on the third and sixth charges must stand or fall together, since both depend upon the Applicant's claim to be entitled, as agent of Wong Ping-kuen, to demand and receive payment for a supply of electricity to Wong Ping-Kwai. 6. The fifth charge alleged handling stolen goods, namely a watch stolen from one Chan Kuet-sam in the course of a robbery on 27th December 1981. The watch was found in the possession of the Applicant upon his arrest, which, although the precise date does not appear from the record before us, appears to have been in March 1982. Chen Kuet-sam identified the watch as having been stolen from him during the robbery and he identified a co-defendant of the Applicant as one of the robbers. This co-defendant and the Applicant were said to be fellow workers at all material times. The Applicant testified that the watch had been sold to him by his father two years before his arrest. That evidence was disbelieved. The judge said that the co-defendant "had stolen it in one of their joint enterprises" and appears to have applied the doctrine of recent possession. There was no evidence that the watch had been stolen by the co-defendant in a joint enterprise. Moreover, in our view the possession of the Applicant could not, in the circumstances, properly be regarded as "recent", and accordingly there was no prima facie case of handling stolen goods so as to impose on the Applicant the obligation to give a satisfactory explanation. 7. We accordingly quashed the convictions on all four charges and set aside the sentences. 21st February 1983. |