HKSAR v. SCENE WYCHING

HCMA 608/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 608 OF 2002

(ON APPEAL FROM KCCC 5015/2002)

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J U D G M E N T

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1. The Appellant faced four charges, all arising out of what passed between him as a taxi driver and a woman passenger on 20 December last year in Hillwood Road, Kowloon.

2. Charge 1 was of refusing to accept hire of a taxi. Charge 2 was of refusing to ensure the safety of a passenger. Charge 3 was of not behaving in a civil and orderly manner as a taxi driver. Charge 4 was of criminal intimidation.

3. On 16 May this year, the Appellant appeared before T H Casewell Esquire in the Magistrates Court at Kowloon City to face these charges. He pleaded guilty to all of them. As to the circumstances of the offences, the Appellant admitted some of the facts put forward by the prosecution and disputed some of the facts put forward by the prosecution. The Magistrate then held a Newton Enquiry into the disputed facts. These related to Charge 4, the criminal intimidation charge. The Appellant admitted that he had said to the passenger: "There is nobody here and I will beat you to death".

4. The disputed facts were whether the Appellant was carrying a one foot long rod with a ball on top that had been taken from under the driver's seat and whether he had held this in his right hand when threatening the passenger as she sat at the back of the taxi. The Magistrate, acting on the passenger's evidence, found the disputed facts proved beyond reasonable doubt. He said in his Statement of Findings that the facts admitted by the Appellant proved his guilt on all four charges, and that the disputed facts only went to sentence.

5. The Appellant was fined $750.00 on Charge 1, $1,000.00 on Charge 2 and $1,000.00 on Charge 3. On Charge 4, he was sentenced to 3 months' imprisonment. He has lodged a notice to appeal against his conviction and sentence on Charge 4. Not surprisingly since he had pleaded guilty, he has abandoned his appeal against conviction, and now appeals against sentence only.

6. On 10 October 2002, perfected grounds of appeal prepared by Mr Hanif Mohamed Mughal of counsel were lodged on the Appellant's behalf. The first ground is that the Magistrate had erred in saying in his Statement of Findings that "The Appellant did not give or call evidence to support his own case" when in fact the Appellant had gone into the witness-box and denied threatening the passenger with a metal bar or any other weapon. Grounds 2 and 3 are of similar effect. It is undoubtedly the case that the Appellant went into the witness-box and gave such evidence.

7. If the matter ended there, then there could be no doubt that the Magistrate's finding that the Appellant had threatened the passenger with a metal bar would not be a finding on the basis of which this appeal could proceed. However, it has to be borne in mind that when the Magistrate gave his ruling at the conclusion of the Newton Enquiry, he did refer to the fact that the Appellant had given evidence denying that he had threatened the passenger with a metal bar. The rival considerations are finely balanced. At the end of the day, I do not feel able to say that it would be satisfactory to proceed on the basis that the Appellant had indeed threatened the passenger with a metal bar.

8. The Appellant must therefore be dealt with on the basis that what he had done was to say to the passenger: "There is nobody here and I will beat you to death". On that basis, counsel in ground 4 of his perfected grounds of appeal urged me that the sentence is on the high side and inappropriate in all circumstances of this case. And on that basis, counsel for the Appellant suggested a suspended sentence.

9. I have considered counsel's submission with great care; however, I am unable to accept that a suspended sentence would be sufficient. There was a threat to beat the passenger to death. That was extremely serious even if it was not reinforced by threatening her with a metal bar. All things considered, I think that the appropriate sentence on Charge 4 is, in all the circumstances and taking into account everything urged on behalf of the Appellant, one of 2 months' imprisonment. The appeal is allowed to the extent of reducing the sentence on Charge 4 from 3 months' imprisonment to 2 months' imprisonment.