R. v. CHIU CHEUNG

IN THE COURT OF APPEAL

1995, No. 499
(Criminal)

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court):

1. The Applicant was convicted of six charges in the Court below. Two of them, charges 1 and 12, were for blackmail. Charge 1 was that sometime in March, 1992, at the Tuen Mun Polyclinic he had made an unwarranted demand of $3,000 from Wong Po-wah with menaces and with a view to gain for himself. Charges 2, 19 and 20 were related to charge 1 in that they were for theft of sums of money the property of Luen Lik Construction Co. and were said to have occurred when the money demanded in charge 1 was paid over from time to time. Charge 12 was that sometime in mid-1990 at No. 31, Tak Ching Circuit, the Applicant had made an unwarranted demand of an unspecified amount from Cheung Kin-ming with menaces and with a view to gain for himself. Charge 11 was related to charge 12 in that it alleged that on the same occasion the Applicant had claimed that he was a member of the Sun Yee On Triad Society. The Applicant seeks leave to appeal against each of the six convictions.

2. The complaint is based upon the decision in R. v. Wong Chung-ming (1985) 1 HKC 625 where the essentials of a charge of blackmail were set out. The test of a demand with menaces there set out is that the menaces should be such as to influence and possibly prevail upon a man or woman of a normally robust temperament. It is argued that in the present case the Judge below did not apply that test in relation to charges 1 and 12 in that he applied a subjective test rather than an objective one. The evidence accepted by the Judge in relation to charge 1 was that on the day in question the Applicant approached a foreman of the construction site, said he was the "tor tei" of the area and asked to see the person in charge. The foreman gave him the pager number of the Chief Foreman, Wong Po-wah, PW10. The Applicant contacted Wong Po-wah and asked if the site would like to employ a watchman for $3,000 per month. A watchman had already been employed and there had been no advertisements for one. Wong Po-wah understood that the Applicant was demanding "tor tei" fees. Subsequently, Wong Po-wah bargained with the Applicant and brought the fee down to $1,800 per month. The Applicant never performed any of the duties of a watchman. At a later stage he saw Wong Po-wah and said that if anyone else sought "tor tei" fees Wong Po-wah should say the Applicant had already collected them. On another occasion the Applicant went to the site and said that one of his followers had been arrested and needed money for a lawyer. He demanded that the "tor tei" fee be paid earlier. On still another occasion he asked Wong Po-wah for the telephone numbers of the sub-contractors engaged on the site.

3. The Judge said in his Reasons for Verdict,

"Now to PW10 D1 asked if his site would like to employ a watchman and he would like to get a watchman fee of $3,000 per month. PW10 understood that to be a demand for a tor tei or protection fee. Nothing was said or done by D1 to lead PW10 to believe otherwise. I find that PW10 was fully justified in believing as he did."

The argument is that if and insofar as the Judge applied a merely subjective test he was wrong upon the basis of the authority cited. There was no evidence as to whether Wong Po-wah was of a reasonably robust temperament. It is unnecessary in the present case to consider whether the judgment in Wong Chung-ming (supra) is comprehensive. When the Applicant approached the foreman, told him he was the "tor tei" of the area and said he wanted to see the person in charge he must have intended that that message should be passed on to the person in charge. There can be no other reason for his having spoken as he did. The message was in fact passed on and it is against that background that the consideration of the Applicant's first conversation with Wong Po-wah must be made. Once that is done it is clear that on an objective view the Applicant had uttered menaces coming within the decision of Wong Chung-ming (supra). In these circumstances it is unnecessary to consider the subsequent acts of the Applicant.

4. The same arguments were advanced in relation to charge 12. The evidence accepted by the Judge was that in about May, 1990, the Applicant approached Cheung Kin-ming (PW4) who was a partner in a furniture store and said to him,

"I am Lo Sun. I collect tor tei here."

There was expert evidence accepted by the Judge that "Lo Sun" is generally understood to mean the Sun Yee On Triad Society. There is no question as to the meaning of "tor tei" which is equivalent to "protection money". The Judge said,

"As to charge 12 I find that D1 did demand a 'tor tei' fee as described in his (sic) evidence. The use of such a phrase coupled with a claim to be triad member was, I find, an unwarranted demand for money with menaces. The latter again were not explicit but implicit and I adopt my comments in this regard in relation to charge 1."

The first two of these sentences are ample to support the objective test laid down in Wong Chung-ming (supra) and nothing further need be said of the argument advanced.

5. It is said that if the conviction on charge 1 is quashed then so must the convictions on charges 2, 19 and 20 also be quashed. However, there is nothing in the arguments advanced against the convictions on either charge 1 or charge 12. The application for leave to appeal against conviction is therefore dismissed.