Ng Chi-kwong and Another v. The Queen
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CACC001206/1978 [Section 17 of Theft Ordinance]
----------------- Coram: Roberts, C.J. , Leonard & Li, JJ. Date of Judgment: 10 January 1980 ----------------- JUDGMENT ----------------- Leonard, J. Introduction 1. In this case we dismissed the applicants' application for leave to appeal against conviction and allowed their applications for leave to appeal against sentence, reducing their sentences from six years' to two years' imprisonment. 2. The appellants faced two charges: one of robbery and the other of obtaining property by deception contrary to section 17 of the Theft Ordinance, Cap. 210. They were found not guilty of the count of robbery but guilty of the alternative count of obtaining property by deception and it is against that finding that they sought leave to appeal. 3. The particulars of the count of obtaining property by deception were amended in the course of the trial and in their final form read as follows:
4. Although this count is somewhat inelegantly expressed, it is clear that one obtaining, and a number of false representations, are alleged. The first representation was that the appellants falsely represented that they were police officers acting lawfully in the course their duty in raiding the construction site; the second that they falsely represented that money seized from a table would be used as an exhibit in subsequent court proceedings; the third that money handed over by those engaged in gambling would be spent in full or in part in acquiring the attendance in court of other persons as substitutes for the gamblers; the fourth that the money handed over by the gamblers would be spent either in full or in part as bail money for the gamblers. 5. It is to be noted that the first of these representations was that the appellants represented that they acted lawfully in raiding and not that they acted lawfully throughout the raid. This as will appear later is of some, although minor, importance in the light of the argument put forward by counsel for the appellants. Finding of fact 6. In order to arrive at the verdicts at which they did arrive the jury must have found the facts to be as follows. Employees at the Chi Fu Fa Yuen Construction Site were accustomed to gamble at the game of "pai kau" in the rest room of the construction site during their luncheon break. This fact became known to the appellants. At the time in question, the first appellant, who was a member of the C.I.D. stationed at Kwai Chung, was told by one of his informers of the existence of this gambling school at which workers played regularly during lunch time from 12.00 noon to 1.00 p.m. 7. The first appellant conveyed this information to the second appellant, who was at that time stationed at the Triad Society Bureau, Police Headquarters on Hong Kong Island. The Triad Society Bureau concerns itself with among other things syndicated gambling. [The term "syndicated gambling" was never defined. It appears unlikely that it would extend to gambling by construction workers during their lunch break.] 8. On the day in question the first appellant was entirely unconcerned with the suppression of gambling; the second appellant was under no obligation to concern himself with the suppression of this particular gambling school. Both the appellants and a third person went to the rest room on the construction site. The room was not large and the main item of furniture in it appears to have been a large wooden table. On the arrival of the trio at the room there was a considerable number of workers in it, or in adjoining rooms of what was apparently an uncompleted block. 9. The trio burst into the room, at least one of them with a revolver in his hand. A number of the workers, among whom were those mentioned in the charge, were grouped around the table playing "pai kau". Each of those named in the charge had made a wager on the result of this game; the sums representing the amounts of their respective wagers were all on the table together with "pai kau" tiles. 10. On their entry the trio loudly claimed to be police officers and informed the construction workers that they were engaged on a gambling raid. The third man went to the table and proceeded to seize from it the money wagered. In the words of the first prosecution witness, LEE Kwong-wah
11. The evidence of the other players as to precisely how the trio were armed and precisely how many revolvers were produced and whether or not police warrants were produced is somewhat conflicting. But the picture which emerges is that of three armed men claiming to be police officers producing warrant cards, stating that they were police and were raiding the room, bursting into a crowded room catching the occupants completely off guard and seizing from the table the stakes which had been wagered by those of the workmen who were gambling. 12. None of the workmen alleged in evidence that there was any verbal representation that this money was being seized in order that it might be used as an exhibit in any case that might be taken against the workmen. Any such representation was by conduct. That the trio indicated that they were police officers and reinforced their claim by the production of a gun or guns coupled with the suddenness of their entry into the room and their statement that a raid was taking place, and the seizure of the money must have been regarded by the jury as having led the workmen to consider that they were police officers engaged upon a lawful raid seizing the money as an exhibit and as having amounted to such a representation. 13. One of the prosecution witnesses, YEUNG Lau-sum, indicates graphically his feelings at the time. Firstly he said that he did not believe the trio were police officers but they had got guns. Secondly, he stated that he "more or less" believed in them and they had guns and he was afraid of that. It is clear from the evidence that the workmen were confused, but that suspicions did arise as to the bona fides of the trio. A number of the workmen referred to their feelings of confusion. Such feelings were an inevitable result of the noisy and forcible entry of three armed men into a room already crowded with workmen engaged upon what they certainly regarded as the "illegal activity" of gambling. 14. Notwithstanding the confusion, at least some of the workers regarded the actions of the trio as amounting to a representation that the gambling money on the table was being seized as a court exhibit for use on the hearing of a case to be taken in respect of this illegal activity. When the suspicions of at least one of them was aroused, he insisted that the "pai kau" tablets should be taken in addition. His evidence was :
This would have been naive in the extreme had it not been for doubt which by then existed as to the bona fides of the trio. 15. In the interim the trio had collected sums of money from all engaged in the gambling. 16. The first prosecution witness gave evidence to the effect that when collecting the money from the table one of the trio said :
The second prosecution witness said that the request for $500 from each was "so as to enable us to find you some suckers" and later that they had tried to raise money so that they need not appear in court. This witness said he understood that to be a reference to bail. 17. The fourth prosecution witness said that what he heard was a suggestion that if he was brought to court he would probably be fined $500 and that if he wanted to continue his work he should pay $500 to enable scape-goats to be found. Later this witness indicated that somebody had said that if they were taken back to the police station each of them would pay $500 but if each of them paid $300 there would be no need for them to go back to the station. 18. A fifth workman believed when he paid over the $300 that it was bail money. 19. This misunderstanding (for misunderstanding it apparently was) arose because at or about the time the demands for $500 were made the trio had segregated one of the workmen from the others brought him into another room and when he came back he was understood by those remaining to suggest that the money was required as "bail money". All were confused. Speed and confusion are, as the jury must have appreciated, the weapons of the confidence trickster. 20. Notwithstanding the confusion, there was ample evidence that the sums collected from the workers were paid on the assumption, caused by the trio, that the raid was a lawful gambling raid, just as the taking of the money from the table was attended by, at least, an implied misrepresentation that it was required as an exhibit. 21. There is no evidence that any of the trio demanded money in connection with bail. This was a misunderstanding on the part of some of the workers. The jury must have accepted that what the trio intended to persuade them of was that a lawful gambling raid having taken place, gambling having been discovered and the stakes having been seized, prosecution must follow. So that those concerned in the gambling would have to appear in court or pay (quite illegally) for substitutes to appear for them. 22. This is the conclusion at which the jury must have arrived in order to find the appellants not guilty of robbery but guilty of obtaining money by deception. The jury must have concluded that the misrepresentations as to the nature of the raid, as to the purpose of the seizure of the table money and as to the finding of substitutes, deceived the workers and operated on their minds when they failed to protest at the seizure of the table money and made the additional payments. There was ample evidence on which the jury was entitled to come to that conclusion. What occurred after the collection of the money amply showed that the workers were deceived and paid by reason of the deception but remained suspicious. 23. After the trio left, some of the workers, on looking out the window and discovering that there was no police vehicle outside, immediately arrived at the conclusion that in their own words "it was a dud", meaning a deception. They ran out after the trio and a fracas resulted. The man who had the proceeds of the deception escaped while the appellants were stopped and attacked. In the course of the commotion one of the appellants lost his revolver. This was found on the ground by a worker and returned to police on duty who had been attracted by the commotion and were investigating it. 24. Shortly after 2.00 p.m. a superintendent of police, LEE Kwong-yee, came to the site. He was attached to the Triad Society Bureau and consequently the second appellant was known to him as an officer under his command. He questioned him as to what had occurred and the second appellant told him that he had met the first appellant that morning, that the first appellant had told him of the existence of the gambling school and that he had gone to the construction site. Workers had discovered his identity and had commenced to attack them and had snatched his revolver. He had not related to anybody senior to him the fact that he was going there to investigate the gambling school, nor did it appear from this witness's evidence that he had any business to do so. 25. For a true consideration of the matters raised by the additional grounds of appeal against conviction it is necessary to keep in mind that the appellants were facing alternative charges. It was on the first, which was the more serious charge of robbery, that the attention of counsel both for the appellants and for the Crown was focused at the trial. Objections to indictment 26. The first ground of appeal alleged duplicity, uncertainty and inconsistency. Duplicity is a matter of form, not of evidence. Here only one obtaining is charged, although it is alleged that the deception may have taken a number of forms. The count does not charge the appellants with having committed two or more separate offences. In form the count is not double. Nor do we see anything in the particulars which would lead to uncertainty, or to any prejudice to the appellants by the allegation of a number of false representations. Clearly what was alleged was that the appellants had falsely represented that the activity in which they were engaged was a lawful raid and that in the course of that activity they had made further false representations. Section 17 of Theft Ordinance 27. Counsel for the appellants also criticized the indictment for inconsistency in conjunction with his 8th ground of appeal which read :
He argued that, if the deceptions alleged were mutually exclusive the count was bad because it could lead to an unsafe and unsatisfactory verdict. We are not convinced that the deceptions alleged were mutually exclusive. The first deception was that they were acting lawfully in the course of their duty in raiding the construction site. I would emphasize the words "in raiding". This is not tantamount to an allegation that the appellants had represented to the workers that throughout the raid they were acting lawfully. 28. The representation that money handed over would be spent to acquire attendance of substitutes did not conflict with the representation that they were engaged in a lawful raid. Police officers engaged in lawful raids may in the course of them engage in illegality. In this respect the particulars conveyed no more than that the defendants represented that they were engaged on a lawful raid and also represented that if paid they would not carry on with their duty properly. We must look to the entire picture created by the activity in question. This is necessary in all cases in which tricksters operate. A multiplicity of representations, true, half true and false are necessary elements of many swindles. The desired effect (obtaining money by deception) cannot be achieved in many cases unless a multitude of representations is made. It would be manifestly absurd to have a different charge in respect of each of such representations. It is the confusion caused by the very multiplicity of misrepresentations that enables the malefactor to obtain the property in question. 29. The relevant provisions of section 17 of the Theft Ordinance are of importance in this connection. They read :
This section is intended to be extremely wide in its application. Furthermore, it is to be noted that the words in parenthesis in subsection 1 have been inserted by the draftsman in Hong Kong. They are not to be found in the English equivalent. [One might be forgiven for the speculation that it was with the prevalence of "the heavenly swindle" in mind that these words were included in the Hong Kong version.] The inclusion of these words "whether or not such deception was the sole or main inducement" enjoins caution in any approach to such cases as Laverty (1) and Clucas (2). In Laverty's Case the relevant count in the indictment alleged a false representation by conduct. There the appellant had sold a stolen car to which he had affixed the number plates relating to another car. The false representation alleged was that the car sold was the original car bearing the substituted index number plates. It was conceded that there was such a representation made by conduct, that it was false and false to the knowledge of the appellant. "The sole question was whether this false representation operated on Mr. Bedborough's mind so as to cause him to hand over this cheque." The Court of Appeal held that it was "axiomatic" that it was for the prosecution to prove that the false representation acted on the mind of the purchaser. 30. In Clucas punters induced bookmakers to bet with them by representing that they were commission agents in a large way of business and were placing bets for others. Whereas in fact they were placing bets for themselves alone. They would, however, be paid only in the event of the horse, the subject of the wager, winning. There reference is made to "the effective cause of the payment". It was held that the effective cause was the horse winning and not the false representations. 31. Under our Ordinance, for an offence under the section to be committed, a false pretence must be shown to have operated on the mind of the payer and to have been a cause of the payment. Such expressions as "operative cause" or "effective cause" have value only if preceded by the indefinite article. The fact that some other representation or misrepresentation was the essential cause or the effective cause is not conclusive. All that the prosecution needs to show is that the misrepresentation alleged contributed to the action of the victim in handing over his money. If the misrepresentation has the effect of confusing the victim and if his confusion contributes to the payment, the maker of it may be properly convicted, even though one of the essential causes of the payment may have been a true representation. 32. Complaint is made as to the inadequacy of the following direction of the trial judge on this point :
33. For the reasons given we consider that this is a proper and adequate direction. Involvement of appellants 34. A further ground of appeal alleges a failure to direct the jury :
The evidence was that the third man made the oral representations (although clearly all had joined in the representations by conduct). We find no merit in the suggestion that the trial judge was wrong in directing the jury that they might be assisted, in deciding whether the deception was planned, by the fact that the appellants had denied that there was a third man. 35. No proceeds of the deception were found on the persons of either appellant and the evidence was that the third man had escaped with those proceeds. A denial that he existed therefore shows that the appellants' desire was not to disassociate themselves from him but a desire to maintain that there had been no "obtaining". Once the jury held that there had been, denial of the existence of the third man goes some way to establish planning on the part of the appellants. 36. A further ground alleges a misdirection in that the trial judge told the jury that they "must not look at the minds of the persons who were in the room but at the minds of the persons who produced the guns". When this was said the judge was directing the jury as to the mens rea required for robbery. We cannot accept the suggestion that the jury may have been misled when considering the lesser count. His use of the expression "that any one of the pretences operated on any one of the named persons so as to lead him to part with his money" in the passage already quoted made it clear to the jury that in considering the lesser count they had to consider the effect of the misrepresentations on the minds of those in the room. 37. For these reasons we dismissed the application for leave to appeal against conviction. Sentence 38. The trial judge observed that "it is frightening to think what might have happened had any of those persons offered resistence" and that those in the room "were put in fear". 39. We think there is merit in the argument that these remarks indicate a failure to accept what was implicit in the jury's finding, namely that the appellants relied on deception rather than on force or fear. Six years' imprisonment would have been on the heavy side if those involved had been private individuals engaged in robbing the gamblers. This court has on a number of occasions indicated that the appropriate sentence to be imposed on private individuals invading dwelling houses at knife point, tying up the occupants and ransacking the premises is in the region of six years' imprisonment. 40. From cases quoted to us by Mr. Huggins, it appears that sentences imposed on private individuals for even systematic frauds seldom exceed two years' imprisonment. Having regard to the facts that these appellants are police officers we think that that is the appropriate sentence, as less than $2,500 was involved. 41. We therefore gave leave to appeal against sentence and substituted a sentence of two years' imprisonment. Representation: Mr. Adrian Huggins (Fairbairn, Kwok & Wong) for appellants Mr. Aiken, counsel for Crown/respondent. (1) 54 Crim. App. R. 495. (2) (1949) 2 K.B. 226. |