THE QUEEN v. WU CHI KEUNG

BETWEEN

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JUDGMENT

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Kempster, J.A.:

1. On 15th May of this year at Tsuen Wan District Court Wu Chi-keung was convicted by Judge Fung on charge of blackmail, two of theft, one of criminal intimidation, one of affray and two of assault occasioning actual bodily harm. He now seeks leave to apply to this Court out of time to appeal against two of those convictions.

2. The first was a conviction for theft and the charge read:

That is the section which deals with the penalty on a conviction for theft.

3. Particulars of Offence:

Lam Chiu-tong runs the bakery mentioned and in mid-July he was approached by the applicant who claimed to be one of the managers of an adjacent billiard hall and stated that someone was going to cause the bakery business some difficulty. Thereafter the two of them went outside the shop and Lam Chiu-tong handed over $2,000. The judge found in terms that that money was handed over by Lam on his own initiative and that the applicant had not asked for it.

4. The applicant faced a related charge of blackmail contrary to section 23(1) of the Theft Ordinance but in that regard the judge ruled that there was no case to answer. Accordingly the judge could not, in considering the facts relevant to the charge of theft, find or take into account any unwarranted demand or menace. That remained the position albeit he convicted the applicant on other charges the circumstances of which suggest, despite the judge's ruling, that the applicant had demanded $2,000 as protection money. So on charge 2 we are left with Lam Voluntarily handing over $2,000 to the applicant and inviting his assistance in avoiding trouble at the bakery and the applicant accepting that sum.

5. In our view once menace had been eliminated no other form of dishonesty could have been substituted and, further, the money having voluntarily been handed over and accepted there was no appropriation of that money by the applicant within the meaning of section 4(1) of the Ordinance. It follows that this conviction is bad in law.

6. In relation to the other conviction impugned, which was one of assault occasioning actual bodily harm, it is common ground between the applicant and the Crown that there was no evidence before the judge indicating that any bodily harm had been suffered by the alleged victim and the judge so confirmed when he produced his Reasons for verdict. So that conviction is bad in law too.

7. It follows, formally, that we accede to the application for leave to apply out of time, because and only because an interesting point of law arose; allow the application to appeal against the two convictions; treat this is the hearing of the appeals and quash the two convictions in issue. We now wait to hear from Mr. Cosgrove as to sentence.