Tsang Cheung-keung v. The Queen
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CACC001322/1976 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION Criminal Appeal No. 1322 of 1976 -----------------
----------------- Coram: Hon. Yang, J. in Court. Date of Judgment: 17th February, 1977. Demanding money with menaces - menaces - obscure words used. ----------------- JUDGMENT ----------------- 1. The Appellant was convicted of a total of 36 charges, which might be conveniently divided into 18 pairs, each pair consisting of a charge of demanding money with menaces followed by a charge of theft. 2. It was the Crown's case that on diverse dates between September 1974 and April 1976 the Appellant demanded with menaces, and as a consequence of those demands did steal, sums of money varying from $10 to $30 per month, from three garage proprietors operating in the same area in Kowloon. 3. As a general complaint it was submitted on behalf of the Appellant that the learned trial magistrate's mind was prejudiced from the beginning of the case. In the Statement of Findings the learned magistrate said, "The fact that each of the Blackmail charges was followed by a corresponding Theft charge would tend to suggest that the alleged incidents of blackmail were duly and intentionally perpetrated by the blackmailer". Whilst one may question the wisdom of making this observation before any evidence had been evaluated, the result of the trial indicated that the magistrate was in no way prejudiced. There were originally 100 charges, to all of which the Appellant had pleaded not guilty, and he was acquitted of 64 of those charges. In the circumstances the acquittals would not have been ordered if the magistrate had been prejudiced. 4. A second general complaint relates to the following passages in the Statement of Findings:
5. It is true that in the absence of any evidence, the learned magistrate was not entitled to presume that the victims' nonattendance at the trial was attributable to fear. And the phrase "As a result" in the second paragraph is unfortunate for it would seem it was on the basis of what was stated in the first paragraph that the Appellant was convicted. Again the acquittal of the Appellant on a majority of the charges is in my view ample evidence that the learned magistrate was not prejudiced in the manner suggested. 6. Evidence on charges K and L was given by one of the garage proprietors Mr. Lin Man-chung (P.W.2) who said that the Appellant asked him for "tor-day" which expression Mr. Lin took to denote protection money. There was no evidence as to whether the Appellant in his use of this obscure expression intended to demand protection money, nor was there any evidence to show that this was an expression well known to a particular locality, class or sector of Hong Kong to which the Appellant and Mr. Lin belonged (See R. v. Lawrence and Pomroy (1971) Crim. L.R. 645). There was, furthermore, nothing to indicate that the words used were of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand (R. v. Clear [ 1968 ] 1 QB 670). And it was not entirely clear from Mr. Lin's evidence that he paid the Appellant unwillingly. For these reasons the appeal against the convictions on these two charges is allowed. The convictions and sentences thereon are accordingly quashed. 7. Evidence on charges G and H, and BS and BT was given by Mr. Ng Fai (P.W.5). The effect of his evidence was that he and the Appellant were casual friends, that he was not very clear what "tor-day" meant, though he thought it might mean protection fee, and that he gave the money to the Appellant voluntarily. For the same reasons as that given above, the convictions on these four charges cannot stand. There is yet another reason why the convictions cannot stand. The date of the offences given in charges G and H was the 28th September 1974 and the date given in charges BS and BT was 27th January 1976. However Mr. Ng Fai in his evidence on the first pair of charges gave the dates as 27th or 28th September 1975, and in his evidence on the second pair of charges gave the date as "about another two months later", which could not be 27th January 1976. The magistrate in his Statement of Findings found that the first incident occurred on the 28th September 1976, and that the second incident occurred about two months later. The appeal against the convictions on those charges must accordingly be allowed and the convictions and sentences thereon are quashed. 8. In referring to "tor-day", the trial magistrate said, "It has become an appalling state of affairs that blackmailers would resort to triad jargon or otherwise to avoid an outward use of menaces or cover up whatever substantive menaces there are in the particular case". One might fully sympathize and agree with this sentiment, but it cannot override the necessity for some evidence that both the blackmailer and the victim know that a menace has been uttered. In the present case such evidence was lacking, and there was nothing in the evidence that "tor-day" was indeed a triad terminology. 9. I now come to the third set of charges, namely, charges I and J, and BU to CV. The evidence on those charges was given by Mr. Lo Moon-cheung, also a garage proprietor. Here the words "tor-day" were not used by the Appellant. On the first occasion that the Appellant, who was then a stranger to Mr. Lo, went to the latter's garage, he uttered those words: "We have been all along collecting the money from the garages here. You started your business since October 1974 and I had not been collecting the money from you. The Brothers say that this is not right and that money has to be collected from you". On a subsequent occasion Mr. Lo said to the Appellant "We earned the money with sweat. If you came to have the money every month, we can't afford so much"; whereupon the Appellant said, "Do you pay then? You can choose not to pay". Some four hours after this exchange, the Appellant returned to Mr. Lo's garage and asked him whether he was going to pay or not. Mr. Lo felt that he had no choice but to pay. On those facts, there was clearly a case of demanding money with menaces and theft. The appeal against conviction in respect of those charges is accordingly dismissed.
Representation: C.Y. Wong (Director of Legal Aid) for Appellant. Stanbury, C.C. for the Respondent. |