HKSAR v. CHAN SHEK YEE

HCMA 59/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 59 OF 2016

(On appeal from TMCC 2987/2015)

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J U D G M E N T

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1.  The Appellant stood trial in the Magistrates’ Court on two charges.  Charge 1 was of criminal intimidation. Charge 2 was of claiming to be a member of a triad society.  The Appellant was acquitted on Charge 2, the Magistrate having found that he had no case to answer thereon.  He was convicted on Charge 1.  He appeals against this conviction.

2.  The prosecution’s case is summarised by the Magistrate in paragraphs 2 to 6 of his Statement of Findings, which reads as follows:

“ 2. The only witness called by the prosecution was Mr. X, who was the proprietor of a seafood shop called Koon Lee Sea Food, which was situated at No. 1, Sam Shing Street, Tuen Mun.

3. X gave evidence that, on 22 July 2015, at 5:30 p.m., he was at his shop look after his business. Suddenly, three males appeared at the shop. One of the males was the defendant. The defendant asked X to go out, which he did, saying that he had something to discuss with him.

4. Then the parties walked to the area outside Hoi Tin Restaurant, which was round the corner. There, the defendant stood in front of X, with the distance between them being about two to three feet. The other two males stood behind X.

5. The defendant asked X if he was not going to repay the $5 million loan that he owed to “Yau Chung” (transliteration for the two Chinese words “丘總” spoken by X in his evidence).

6. X said that, among other things, the defendant:

(1) said, “If you don’t repay, I will mess up your shop.”;

(2) also said words to the effect that he would burn down X’s shop and beat him up if X did not repay the loan; and

 (3) furthermore, said words to the effect that X had to reply to the defendant within 3 days about repayment of the loan, or else something would happen.”

3.  Turning to the defence case, the Magistrate summarised it in paragraphs 8 to 20 of his Statement of Findings, which read as follows:

“ 8. The defendant elected to give evidence. But he did not call any defence witness.

9. The defendant said he lives in Lam Tei, Tuen Mun. He came to know X and his family about 17 years ago, when the defendant himself was still in his early twenties.

10. He said he goes to X’s seafood shop at Sam Shing on a regular basis; and, on average, about 3 to 5 times a month.

11. He knows X’s family well. In 2012, when X’s elder brother passed away, he had also attended the funeral.

12. About two to three years ago, the defendant came to know Yau Chung. Some time later, he learned from Yau Chung that X had borrowed a $5 million loan from Yau Chung.

13. He said he had also read the translated copy of the loan agreement, i.e. exhibit D1.

14. On 22 July 2015, the defendant took a taxi from his home to X’s seafood shop.

15. He said he had asked X to come out. He did not want to talk about X’s debt in front of X’s colleagues, because to do so would cause embarrassment to X.

16. He said he only asked X if he owed Yau Chung any money, to which question X replied that Sai Gor (transliteration for the Chinese words ”細哥”) would help him handle the debt.

17. The defendant said X had asked for 3 days, saying that he, that is X, would discuss the matter with Sai Gor. The defendant further said that X asked him, that is the defendant, to leave behind a telephone number, which the defendant did. The defendant said it was in those circumstances that he had given a piece of paper with a telephone number written on it to X.

18. The defendant said he only asked X to contact him in 3 days, but did not ask X to repay the loan within 3 days.

19. The defendant said the whole purpose of the exercise was to ask X about repayment of the loan, as he did not wish to see that the matter would end up in court.

20. He denied he had ever threatened X.  He also denied that there were two other men with him.  He said he only went to X’s seafood shop alone.”

4.  The Magistrate felt sure that Mr X was credible and that his identification of the Appellant was reliable.  He felt sure that there was no truth in the Appellant’s evidence.  On the facts which he found on Mr X’s evidence, he was satisfied beyond reasonable doubt that the Appellant had committed the offence of criminal intimidation with which he was charged.

5.  Three Perfected Grounds of Appeal have been filed on the Appellant’s behalf.  Perfected Ground of Appeal 1 reads:

“ 1. The learned Magistrate had erred in ruling PW1 as credible and reliable witness, and accepted his evidence.

Particulars

(1) The prosecution case, which relies solely on X’s information, was that the Appellant claimed to X that he was a member of Sun Yee On. According to X’s testimony in court, the Appellant had not made such claiming. Instead, X alleged that the Appellant meant he belonged to triad society by saying to X “everyone in Tuen Mun knows me”.

(2) X was not sure as to what had been said to him by the Appellant and he only said “it seems to be something like burnt your shop and beat you up”.

(3) X, when giving evidence as to the happenings on 22^nd July 2015, had not mentioned that the Appellant identified himself as “Shek Yin”.  Only at a later stage when P3 was shown to him, did X add that the Appellant introduced to him his name.

(4) The fact that X reported the matter to the police two days after the alleged incident while he claimed at the same time that he was scared by the fierce Appellant was not considered.”

6.  None of those matters provides any basis on which to disturb the view taken by the Magistrate, who heard and saw the witnesses giving evidence in the witness-box, that Mr X was credible and reliable and that his evidence was to be accepted. 

7.  Perfected Ground of Appeal 2 reads:

“ 2. The Magistrate had failed to properly consider and had erred in rejecting the Appellant’s evidence.

Particulars

(1) The Magistrate had erred in finding that it was unreasonable for the Appellant not to have X’s contact number and to visit X solely for the purpose of discussing the HK$5 million dispute if he had known him for 17 years.

(2) The Magistrate found that it was unreasonable for the Appellant not to obtain X’s contact number from others. However, his worship had not considered the reason given by the Appellant regarding visiting X in person and not to obtain telephone number of X. 

(3) The reason for rejecting the defence case, i.e. the Appellant had no way to find out X’s contact number, was not the Appellant’s evidence and was not supported by evidence.”

8.  Relevant to that, what the Magistrate said in paragraph 40 of his Statement of Findings is this:

“ 40. In regard to the defendant’s evidence, I have the following observations:

(1) If he knew X for 17 years, and his relationship with X and/or his family was so close that he would attend his brother’s funeral when his brother passed away in 2012, why was it the case that the defendant did not have any contact number of X and/or his shop; and that he would have no way to find out X’s contact number?

(2) Even if it were the case that the defendant did not really know X’s contact number, the defendant could have obtained it from Yau Chung. Yau Chung was X’s creditor and X did not challenge this fact. Yau Chung must have known X’s contract number. Why did the defendant not obtain X’s number from Yau Chung?

(3) The defendant said he took a taxi from his home, which was in Lam Tei, to X’s shop in Sam Shing, solely for the purpose of asking X if he would repay the $5 million loan that X owed to Yau Chung.”

9.  Those are matters to which the Magistrate was entitled to attach the weight which he did.  There is no reason to think that the Magistrate failed to consider any of the Appellant’s evidence or that the Magistrate had in any way acted outside the scope of the evidence in the case.

10.  Perfected Ground of Appeal 3 consists of assertion that this conviction is in the circumstances unsafe and unsatisfactory.  There is no basis upon which to so hold.

11.  In the result, the appeal is dismissed.