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CACC000109/1985
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Criminal Case No. 109 of 1985
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LAM CHUN KAU |
Applicant
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and
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THE QUEEN |
Respondent
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Coram: Hon. Barnes, J.
Date of Hearing: 7th November, 1985
Date of Decision: 20th November, 1985
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DECISION
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1. LAM Chun-kau ("D4") was found not guilty after a ruling of no case to answer on a charge of blackmail. He now applies for an order for costs against the Crown.
2. In November 1984 a female voice informed an employee of the H.K. Yakult Co., Ltd ("the company") that bottles of Yakult on display in a shop in Tuen Mun had been interfered with and that the locations of contaminated bottles would be provided if the company agreed to pay $300,000 to the caller. The caller threatened to continue tampering with the contents of Yakult bottles on display for sale in supermarkets unless the sum demanded was paid over. As proof that the threat was serious the caller gave information regarding the location of some of the affected drinks. Bottles located as a result of this information were found to have been tampered with. In each case the aluminium foil seal on the bottle had been pierced by some object which left a tiny pin hole in the seal. After reporting the matter to the police the company agreed to comply with the demand. After the caller agreed to accept $100,000 in cash arrangements were made for the caller to meet an employee of the company at a restaurant in Telford Gardens in order to receive payment. In the event the money was not paid over as the caller did not keep the appointment. Subsequent chemical analysis of the contents of the damaged bottles revealed that no deleterious substance had been added.
3. In January 1985 the company received a further series of telephone calls from a male voice making a similar demand with similar threats. Again the company on the advice of the police agreed to comply with the demand and arrangements were made to pay over the money at the Kwun Tong ferry pier. Before the money was paid over the police arrested the man who made the calls. Under caution he made a statement admitting involvement in both the November and January offences. He also informed the police that D4 was involved in the November offence. As a result D4 was arrested.
4. Under caution in respect of the November offence D4 admitted knowledge of the plan to make the menacing demand over the telephone and participation in carrying out the plan. He went on to claim, however, that the participants "never intended to take the money". The plan, according to his admission, was to hoodwink the company into thinking that the demand was genuine and to gull the company into keeping a rendezvous to pay over the money. Once that end was achieved the plan was fulfilled and no money would be transferred.
5. The charge alleged that the menacing demand was made "with a view to gain". Although the tone and content of the November telephone calls strongly supported the inference that the demand was made with a view to gain for someone, there was no evidence to show that D4 was acting in concert with the person making the calls other than the statement he made under caution. By that statement he was privy to a plan to hoax: he was not linked to any plan to make a demand "with a view to gain". He had no case to answer because the evidence was insufficient to establish beyond a reasonable doubt that he was guilty of the particular offence described in the indictment.
6. The offence of blackmail, however, is also committed by one who, with intent to cause loss, makes an unwarranted demand with menaces. On his own admission D4 was a party to a plan to make an unwarranted demand with menaces and with intent to cause loss to the company. The loss intended was not considerable and was not related to the amount demanded but the hoax had as its aim the causing of some economic loss. The loss may have been no more than the overdraft charges or the loss of interest on the money to be taken to the rendezvous or perhaps no more than the cost to the company of keeping the rendezvous. Since the point of the hoax was to gull the company into keeping the rendezvous it must necessarily have been within the contemplation of D4 that the company would incur some expense in complying with the demand. There was, therefore, a prima facie case of blackmail against him still available on the evidence in the depositions even though he was found not guilty on the charge as laid.
7. This application is made pursuant to section 73A of the Criminal Procedure Ordinance. The provision was considered by Penlington, J., in NG Yui-kin & Ors. v. R.(1) He held that the practice to be followed in considering an application such as this is the English practice set out in the Practice Direction issued by the Lord Chief Justice in the following terms: -
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" 1.
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The ..... power ..... is limited to those cases in which the accused is acquitted on all counts in the indictment.
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2.
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.......
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| 3. |
The exercise of [the power] is in the unfettered discretion of the court in the light of the circumstances of each particular case.
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It should be accepted as normal practice that an order should normally be made for the payment of the costs of an acquitted defendant out of [public] funds ..... unless there are positive reasons for making a different order.
Examples of such reasons are :-
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(a)
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.....
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| (b) |
where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is the defendant can be left to pay his own costs.
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where there is ample evidence to support a conviction but the defendant is acquitted on a technicality which has no merit. Here again the defendant can be left to pay his own costs." |
8. From the terms of that Practice Direction it would seem to be a proper exercise of the unfettered discretion to leave an acquitted defendant to pay his own costs where, notwithstanding his acquittal, there remains on the depositions a prima facie case that he did commit the type of offence alleged on the date and at the place alleged but with a different motive from that alleged. That being the situation in this case I think that the defendant should be left to pay his own costs. I therefore refuse the application.
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(E.C. Barnes)
Judge of the High Court
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(1) [1983] HKLR 356
Representation:
Mr A. MaCrae instructed by Chow, Griffiths & Chan for the Applicant
Mr C. Newall and Mr M.D. Wilson, Crown Counsel, for the Crown
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
Criminal Case No. 109 of 1985
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LAM CHUN KAU |
Applicant
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and
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THE QUEEN |
Respondent
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Addendum to the Decision dated 20th November, 1985 :
Page 1 - In the 1st line of the 2nd paragraph after the word 'voice' add the following words :-
'over the telephone'
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