HKSAR v. FUNG CHEUK SANG

CACC 9/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 9 OF 1999

(ON APPEAL FROM DCCC 704 OF 1998)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Fung Cheuk-sang, appeared before His Honour Judge Christie as the first of several defendants. He was ultimately convicted of three of the many charges in that case and acquitted of eight others. The three charges on which he was convicted were the following. The first was charge 13 which was of blackmail contrary to s.23(1) and (3) of the Theft Ordinance (Cap. 210), the particulars being that on a day unknown in early October 1997, at the roadside of Bute Street, near Nathan Road, Mongkok, Kowloon, in Hong Kong, with a view to gain for himself, he made an unwarranted demand of HK$100 from one Leung Kwok-wing with menaces. The second charge was charge 14 which was of theft contrary to s.9 of the Theft Ordinance, the particulars being that on a day unknown in early October 1997, at the roadside of Bute Street, near Nathan Road, Mongkok, Kowloon, in Hong Kong, he stole in cash HK$100, the property of Leung Kwok-wing. Charge 24 was of criminal intimidation, contrary to s.24(a)(i) of the Crimes Ordinance (Cap. 200). The particulars were that he on or about the third day of February 1998 at the same place, Bute Street, threatened one Li Shek-hung with damage to his taxi with intent to alarm the said Li Shek-hung. He was sentenced to imprisonment for 2 years on the blackmail charge, 3 months concurrent for the theft charge and 4 months for the criminal intimation charge to run consecutive to the other two sentences, making a total of 2 years and 4 months. He now seeks leave to appeal against his convictions on the first two charges, i.e. of blackmail and theft, being respectively charges 13 and 14. He abandoned the application he had originally made for leave to appeal against his conviction on charge 24, which was then dismissed

2. The background facts are these. Around the material time of October 1997, and presumably sometime before, part of Bute Street became a very popular unofficial taxi pickup point for those going to Tuen Mun. So popular that at peak times it was disorderly. There were no designated taxi ranks and no queues. There were attempts to control the route. Some drivers were asked to pay $100-300 per week. That is the background.

3. With that, it is convenient to turn to the evidence of Leung Kwok-wing, the complainant or victim specified in the two charges in question. The judge summed up his evidence in the following way:

"The evidence of PW6, LEUNG Kwok-wing, was that he also was a Tuen Mun taxi driver on the night shift who made it his practice to use the unofficial taxi stand at Bute Street to take passengers to Tuen Mun on his last run and, on a night early in October 1997, he met the 1st defendant [the applicant] when the 1st defendant got into his taxi. The evidence of the witness was that the defendant said that from October 'the stand will have somebody to manage it' and, the witness said. 'He told me to pay a management fee. If I continued to use the unofficial taxi stand I would have to pay $300 per week.' The witness said that he pointed out to the 1st defendant that he only used it for his last trip. As a result, the 1st defendant reduced the amount to $100 per week. The witness said that the 1st defendant told him, 'If you do not pay it would be better not to go and queue any more."

Those words are of critical importance in this case as will be seen when we come to the submissions.

There was no dispute about that evidence. Mr Walter Lau, who appears for the applicant before us, makes the following submission. He says that in his reasons the learned trial judge found such words implied a threat, and that such threat amounted to menaces and the fact of the menaces rendered the demand for money unwarranted. That indeed is what the judge said. We will return to that later. Continuing with Mr Lau's submission, he submits that in making such a finding, the learned trial judge failed to take into consideration three matters that neutralised the effect of the words. First, the defendant did not indicate any unpleasant consequences if the money was not paid. In the way he pursued that before us he said there was no direct threat. Indeed, the words did not mention any particular consequences expressly. Second, he submits that the defendant's demeanour when he spoke the words was "general, not very polite". That indeed is how they are recorded. He submits therefore they were not spoken with a fierce, menacing or unfriendly tone. And third, he says that no report was made by the victim to the police because he did not regard himself as being blackmailed.

4. Before addressing those submissions, it is helpful to see how the judge summarised the further evidence of Leung Kwok-wing and his conclusions thereon. He continued in the following way:

"D1's manner was not very polite, the witness said. He asked whether he had a choice but was told that he would have to pay either $300 or $100. The witness said that he did not want to pay but on this evidence he had no choice. What did the witness think would happen if he did not pay? He said that he was afraid that he would be interrupted in his use of the stand or 'assaulted by them', he said, and that he paid because he did not want him (the 1st defendant) 'to interrupt me'.

Upon payment of $100 he was given a sign which was intended to show that he was a person belonging to the route. After three or four nights the witness stopped using the stand and did not pay again.

On this evidence, the witness interpreted the statements of having to pay to continue to use the stand and 'if do not pay, better not queue any more' as meaning a threat, a threat to stop him from using the stand if he did not make payments. On the face of it that is what these words implied.

The witness also said that he thought the words implied he would be assaulted if he did not make payments. This, however, is not necessarily implied from the words, nor will it be inferred from the subsequent violence to other drivers for the same reasons as I did not draw that inference in the case of the first witness.

This driver was a credible witness and I am satisfied that he did not seek to exaggerate his evidence and that his memory of the conversation was correct. On this evidence he was not a willing participant in a restrictive practice and he was not persuaded to join the route by promises of benefit. Instead, he was compelled to pay by the threat of interference and I am satisfied that the 1st defendant intended that he would be so threatened. It was a threat which was sufficient to cause a person of ordinary fairness [firmness], as this witness was, to accede unwillingly to the demand. The threat therefore amounts to menaces and the fact of the menaces renders the demand for money unwarranted.

I find the elements of the blackmail charge (charge 13) to be proved against the 1st defendant. Accordingly, the 1st defendant's receipt of the money paid to him as a result of his blackmail demand was dishonest and the charge of theft (charge 14) is also proved against the 1st defendant."

A reference to the transcript of evidence by counsel confirms the accuracy of the summary, although counsel have referred to particular passages of the transcript for emphasis in support of their competing submissions.

5. In essence Mr Lau's submission is this: that the bare words he identified "if you do not pay, it would be better not to go there to queue up to wait for passengers any more" did not, and were not, capable of amounting to a threat.

6. Mr D.G. Saw SC, for the respondent, resists that submission.

7. It is trite and well established that in considering whether such words amount to a threat or menace, regard has to be had to the circumstances. These are apparent from the judge's summary. It does not seem to us that the particular passages of the transcript referred to add anything significant. Those included the taxi-driver's evidence that he did not want to give the applicant the $100. Asked what he thought would happen if he did not pay the money, he said he was afraid that he would "be interrupted or assaulted by them". Asked why he did not go to the police after the request for money was made, he answered that he did not feel or did not regard it as blackmail. It was also put to him in cross-examination that in effect he had misidentified the applicant who simply did not have a conversation with him, which he denied. The latter has obvious unfavourable implications for the primary defence relied upon. However, the judge did not rely upon those implications, nor do we find such reliance necessary.

8. Turning then to address the attack on the judge's finding that there was a threat which amounted to menaces, which in turn rendered the demand for money unwarranted, this must be addressed in addition, in the way the judge did, in the context of the following considerations. The taxi-driver was perfectly entitled to stop or stand for hire at the particular place in question without having to pay any amount whatsoever. He could not have been other than fully aware of that, nor could the applicant. True, as Mr Lau points out, the judge mentions the possible element of some sort of restricted practice on the part of some drivers. But he clearly dismissed it in relation to the applicant. Any sort of regard to reality in Hong Kong circumstances must dictate the same conclusion in our view. We do not see therefore how the judge could have reached any other conclusion but that there was a threat of interruption, which, at the very least, amounted to a menace. There was no suggestion that the taxi-driver was of less than ordinary firmness in unwillingly acceding to the demand. The point is a very short and simple one which, as Mr Lau himself had said, merely involves addressing the words in the context of the circumstances. Having done that, we have no doubt that the judge was entitled to come to the conclusion he did, and we do not think that he can in any way be faulted on the ground that Mr Lau had advanced.

9. There are of course authorities for the approach adopted. We do not find it necessary to cite them. But there is in the 1999 Edition of Archbold at p. 1821 paragraph 21- 262 a passage in which the words of Lord Wright in Thorne v Motor Trading Association [1937] AC 797, we think, bear particularly on the situation and submission here. What he said there was that the word "menace" is to be "liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed."

10. Having reached the conclusion above, it follows that the application for leave to appeal against conviction of blackmail must be dismissed, and as a consequence likewise the application in respect of the theft charge upon the view we take of the blackmail charge.

11. The applications are accordingly refused.