The Queen v. Wong Tai Yau

CACC000988/1983

BETWEEN

Coram: Jones J.

Date: 24th August 1983

__________

JUDGMENT

_____________

1. On the 5th July 1983 the appellant was convicted at Tsuen Wan Magistracy on a charge of blackmail and was sentenced to a term of imprisonment for twelve months.  The appellant appeals against his conviction.

2. Originally the appellant was also charged with another defendant on a second charge of blackmail, but both were acquitted after the learned magistrate found that there was no case to answer.

3. The victim gave evidence that on the 5th May 1983 at about 10.30 a.m. four persons including the appellant entered his shop premises the Yen Ling Electrical Company in Tuen Mun. The appellant who claimed to be the protector for the area demanded $3,000 from the victim and threatened that if payment was not made he would not be permitted to leave the shop.

4. A group of persons visited the victim's shop on the 6th May when a similar demand was made but the appellant was not identified to be amongst them. However, he was present on the 7th May with a group of persons who sat outside the shop blocking the view of passersby to the goods that were on display inside. Another incident took place on the 8th May when the appellant and other persons warned potential customers to stay away from the shop. The appellant also made threats of assault.

5. The appellant did not give evidence.

6. Mr. Muscroft who appeared for the appellant argued that the learned magistrate failed to take into account material contradictions in the evidence of the victim. In particular Mr. Muscroft drew my attention to an answer in cross-examination when the victim said he was mistaken as to the time when he made his complaint to the police. However these inconsistencies were taken into account by the learned magistrate when he came to his decision. Upon a careful perusal of the record I am satisfied that the inconsistencies were of a minor nature, and that the learned magistrate was justified in his finding that the victim's credibility was not affected.

7. Mr. Muscroft also criticised the learned magistrate in finding that the events from the 5th May to the 8th May constituted one continuous transaction which resulted in inconsistent verdicts. I agree that it was incorrect to treat the incidents as one transaction. Mr. McNamara who appeared for the Crown fairly concedes that this was the wrong approach, but casting this aside supports the conviction on the grounds that the necessary ingredients of blackmail have been established.

8. There was in fact no evidence that either the appellant or the second defendant was present on the date of the second charge the 6th May when the demand was alleged to have been made. However Mr. Muscroft submitted that there was evidence relating to the second defendant to support this charge for the victim saw him at 2.00 p.m. by the showcase blocking the display of goods. I am unable to agree that this evidence did support the second charge against the second defendant. The learned magistrate was correct to find that there was no case to answer.

9. Mr. Muscroft went on to challenge the learned magistrate's finding that the menaces uttered on the 5th May did not affect the victim.. My attention was drawn to So Sun-Fat and another v. R ⁽¹⁾ as authority for the proposition that the Crown need not prove that the intended victim of the demand was influenced by the menaces. MuMullin J. as he then was at page 347 said : -

"No doubt the law is thus correctly stated, but it must be noted that it goes no farther than saying the Crown need not prove that the intended victim was influenced by the menaces. It does not go so far as to say that the state of mind of the intended victim is immaterial to the proof of the charge nor can such a proposition be inferred from the judgment. In my view the state of mind of the intended victim is a most material circumstance in deciding whether or not the menaces were of such a quality as to be likely to affect the mind of an ordinarily firm and courageous person. Where there is positive evidence that the mind of the victim was not affected, the trial court must surely be shown some reason to account for the victim's composure before it can be asked to say that the circumstances were such that any person of ordinary firmness would have been affected by the words used. In other words, where the victim has given evidence that he was not put in fear the Croon must necessarily present the case upon the basis that he is a person of unusual firmness or exceptional courage. And they must be able to show, notwithstanding that fact, that, nevertheless, a person of feebler character might have been affected by the threat. It is very much a jury question."

10. The learned magistrate found that although the menaces may not have subjectively operated on the victim's mind at the time of the demand they did operate after it became apparent by subsequent events that they were being put into effect. He concluded that the threat was of a nature as to operate on a man of reasonably sound or ordinarily firm mind.

11. The learned magistrate conferred with the lay Chinese assessor who sat with him during the trial, and obtained his opinion upon the demeanour of the victim. He was perfectly entitled to do so. It so happened that the views of the assessor coincided with those of the learned magistrate. In all criminal trials demeanour is an important factor to be taken into consideration when determining the credibility of a witness. Although the victim chose to ignore the threat at the time it was made I am satisfied that the learned magistrate was correct in the ultimate finding that he made that it did operate upon him later.

12. In my opinion the learned magistrate's verdict was right. The appeal is therefore dismissed.

(1)     (1969) H.K.L.R. 342

Representation:

Mr. Colin Muscroft (Hampton, Winter & Glynn) for Appellant

Mr. J. McNamara (Legal Department) for Crown/Respondent