THE QUEEN v. CHOI WAI KWONG

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 914 OF 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty to two charges of Criminal Intimidation and two charges of Assault Occasioning Actual Bodily Harm. The offences of Criminal Intimidation were alleged to have been committed on 20th and 27th August.1987 and that in each case the person threatened was PW1 The offences of Assault Occasioning Actual Bodily Harm were alleged to have been committed on 31st August 1987 with PWI as the victim in one and his wife, PW2, the victim in the other.

2. PW1's evidence was that he was a director and shareholder of a corporate body ('the company') which contracted with the Government of the Peoples' Republic of China to do certain work. The Appellant was one of the subcontractors the company engaged in carrying out that work. By August 1987 the project had been completed but the company had still of been paid its full entitlement under the contract and so had not, in turn, paid the Appellant his full entitlement. The Appellant was still owed about $310,000 out of his full entitlement of $700,000. On 20th August 1987 at about 8 a.m. when he was in a lift with his life any they were about to ascend to the restaurant where they regularly had tea together they were joined by the Appellant and three others in the restaurant the Appellant and at least two of his companions joined PW1 and his wife at their table. The Appellant said that he had brought the three with him, introduced one a his nephew and added that the nephew was there to collect the money owing to the Appellant. During the ensuing conversation at least two of the companions represented to PW1 that they mere triad thugs. PW1 said that he was not personally liable to pay, that it was the company which owed the money. The Appellant replied to the effect that he was not concerned about the niceties of company law and had not come to engage in reasonable diseussion otherwise he would not have bought triad members to come to talk with PW1. PW1 said that he was then 'forced' to call another director and shareholder of the company, PW3, and arrange for him to come to the restaurent. When PW3 arrived one of the Appellant's companions represented to him that he was a triad thug there to collect money on behalf of the Appellant. Eventually PW1 and PW3 agreed between themselves to advance money to the company so that it could pay the Appellant $100,000. PW1 then told the Appellant that the balance could not be paid until the money was remitted. One of the professed triad members said:

"If you cannot pay the money I will definitely crop you to death".

3. PW1 said that he was put in fear and subsequently complied with the Appellant's demand to return to the company's office with him and two of his companions. There he wrote out a cheque drawn on the account of another business of which he was the sole proprietor in favour of the company and gave it to the Appellant. The arrangement was that, when he company was able to pay the instalment of $1,00,000, the Appellant would hand that cheque back in return for the company's cheque in the sum of $100,000. The Appellant did return the cheque the next day and received in exchange a cheque by the company in the sum of $100,000.

4. That was the gist of PW1's evidence relevant the first charge of Criminal Intimidation.

5. He continued that on 24th August 1987 the Appellant and the same three companions came to his office. The Appellant demanded, payment of a further $100,000. within three days One of the companions said that he had to pay, and that they did not care whether the money was owed by the company or by him personally.

6. On 27th August 1987 the Appellant accompanied by the sane three called on him again at his office. One of the three said that if PW1 did not pay within a further three days they would knock him to the ground. PW2 and an accounts clerk, PW4, were present on this occasion. The second charge of Criminal in Intimidation arose out of this incident.

7. On 31st August 1987 the Appellant and the other three called on him again at his office. When PW1 refused to comply with the Appellant demand for payment, two of the three who claimed to be members of a triad society began to assault him, whilst the third stood guard at the entrance door. One of the professed triad members used a hammer which he obtained from the workshop on PW1's premises. When PW2 tried to intervene she was too was hit and knocked no the floor. When PW1 agreed to and did sign an IOU the Appellant and the other three left. The two charges of assault occasioning actual bodily harm arose out of this incident.

8. PW2's evidence was form, on the evening of 19th August 1987 the Appellant, accompanied by two of the three who were with him during the incidents described by PW1, visited her home when PW1 was absent. The Appellant's two companion told her that they were members of 'a famous triad society', giving its name but she could not remember the full name, only that it was something like 'sun ...on'.

9. Generally, her evidence, confirmed what PW1 had said about the incidents on 20th, and 31st August but she gave no evidence about the incident mentioned by PW1 as having occurred on 24th and 27th August.

10. PW3 evidence generally confirmed PW1's as to his being called to the restaurant on 20th August and as to cabal happened after his, arrival.

11. PW4 generally confirmed PW1 and PW2 about what took place on 31st August, She gave no evidence about any incident on 24th or 27th August.

12. The appellant gave evidence There was no conflict between his evidence and that of PW2 about the fact of his visit with two companions to the home of PW2 on the night of 19th August the two companions, on his evidence, were his employees who had, worked on the project in China and had not been paid because he had not received his money from PW1's company The workers accompanied him because they were suspicious of his (the Appellant's) explanation that his failure to pay them was solely due to the face that he had not been paid by PW1. Me denied that the two had claimed to be triad members during that visit. He did not say so explicitly but his evidence implied that he met PW1 and PW2 fortuitously on 20th August whilst he was in the company of the same two employees. He did explicitly allege that, when he met PW1 and PW2 on 20 th August, there was no one else in his company other mail the two who accompanied him when he visited Pull's premises on the night of 19th August. No triad threats were made on 19th August or 20th August.

13. He said that ha wanted PW3 to be present on 20th August because PW1 had said he could not decide the matter on his own. After PW3 arrived h told PW1 and PW3 that he owed people a large sum of money and would be assaulted if he did not pay them. After some bargaining he agreed to accept an instalment payment of $100,000. During their stay in "the restaurant his employees did not say anything. He received cheque from PW1 on 21st which he exchange for another two cheques amounting to $100,0000 on 22nd August. On 27th August her accompanied by the same two employees, went to see PW1 again to ask about the exact date, My payment of the balance owing. PW1 said that he was unable to specify a date. He told PW1 that he could not let the matter drag on and left. No one threatened PW1. The employees took no part in the conversation.

14. On 31st August, accompanied by his two employees, he visited PW1 again to discuss the time for payment. Eventually PW1 agreed to pay within three months. The Appellant told him he did not believe him and asked for a written acknowledgement of debt in return for which he promised "not to interfere with him". PW1 wrote a note acknowledging that he personally owed the Appellant half of the outstanding amount of $200,000. Both PW1 and the Appellant signed the note after which the Appellant and his employees left. There was no assault, no threat and not a word was spoken by either of his employees.

15. The Appellant called a witness who said he was employed by the Appellant at the time and was one of the workers to whom the Appellant was indebted in the sum of $20,000 for work carries out on the China project. He accompanied the Appellant on 19th, 20th, 27th and 31st August. He confirmed the appellant's evidence that there no threats and no assaults.

16. The learned magistrate convicted the Appellant on the first Criminal Intimidation charge and both AOABH charges but acquitted him on the second charge of Criminal intimidation.

17. In support of the Appellant's appeal against the convictions his counsel Mr. Ashok Sakhrani, who also represented him at the trial, relies on three grounds.

18. The first alleges "that the learned trial magistrate failed to consider adequately or at all the discrepancies in the Crown's evidence and then sots out particulars lettered (a) to (e).

Particular (a) reads as follows:

"PW1 and PW2 gave evidence to the effect that on the 20th August 1987 at the ...restaurant the Defendant and all his men but one sat at their table throughout the time at the restaurant. PW3 however said that the Defendant might sometimes not be at the table and that he was doing nothing in particular".

19. The evidence of PW3 to which reference is there made was given in cross-examination. The context gives no indication of the times when the Appellant was not at the table nor the time when "he was doing nothing in particular". PW1 and the Appellant were at the restaurant together for some hours so it would not be surprising if the Appellant were absent from the table at some time or other. Most of us would say that those who were seated at our table at a banquet sat  with us throughout without intending to imply that none of them ever left the table for short periods of time, in any event, PW3 gave evidence which confirmed that of PW1 and PW2 as to the central incident and the learned magistrate, who saw and hearded him was convinced that he told the truth. This alleged discrepancy was pointed out by Mr. Sakhrani in his final address. The leaned magistrate then said that he evaluated all the evidence and found that PW1's allegation of having been threatened at the restaurant was confirmed by the evidence of PW3. He also said that he did not believe the evidence of the Appellant and the witness the Appellant called.

20. In my view there is no substance in this complaint.

Particular (b) reads as follow:-

"PW1 gave evidence that on 31st August 1988 the Defendant walked up to she 3 persons he had brought with hit to PW1's office and pushed 2 towards him, PW1. That they both assaulted PW1 whilst the 3rd person guarded the entrance. PW2 and PW4 gave evidence that all of them assaulted PW1.''

21. The evidence was that the area of the room in which the incident occurred was 1000 square feet. PW4 was an accounts clerk then employed by PW1 but no longer in his employ at the time she gave evidence. The effect of the evidence of both PW2 and PW4 was that, the scene was one of confusion.

22. The learned magistrate found both PW2 and PW4 to be truthful witnesses. Minor discrepancies of the kind pointed out in this particular are to be expected from truthful witnesses trying to recall the details of an alarming incident which occurred almost 12 months earlier in respect of which they admit to having a confused or incomplete recollection. I see no reason to criticize the learned magistrate for tailing to refer to this matter in reaching his verdict.

Particular (d) reads as follows :-

"PW1 and PW2 gave evidence of a vicious assault on them on 31st August 1987 the extent of which is unsupported by the medical evidence."

23. PW1's description of the assault or him was of a blow to his back and two punches to his chest. One assailant struck at him with a hammer but apparently missed when he withdrew his head. That hammer assault attempt together with his evasive action apparently dislodged his spectacles which then dropped to the floor. PW4 said that she saw one man elbowing PW1 and another trying to hit him with a hammer. PW2 said:

"I saw them assaulting my husband with their elbows and the hammer."

24. The medical report in respect of PW1 stated that he had "mild tenderness over the right aide of chest wall". That is inconsistent with an allegation of being struck a few blows with elbows and/or fists and a failed attempt to strike with a hammer.

25. PW2 said that when she told the assailants to stop attacking her husband she was abused and that then the Appellant and his three companions assaulted her with their hands and legs. One of them hit her at waist level with the hammer causing her do fall to the floor. PW4 gave a similar description of the attack on PW2. The medical report of her medical examination reads:

"1. Tenderness over right side of chest wall.

2. X-ray showed suspected fracture of rib."

26. I do not see how it can be said brat the assaults described by PW1, PW2 and PW4 were unsupported qua assaults by that medical evidence. I cannot sec any substance in this criticism at all.

Paragraph (d) reads as follow:

"PW1 gave evidence chat or 27th august 1987 threats were made in the presence of PW2 and PW4. PW2 and PW4 have no recollection of being present on the occasion."

27. PW2 did say that after the incident in the restaurant but before 27th August she saw the Appellant with the same three men come to the office premises and demand money from her husband "fiercely". She then said that she could not remember where she was on 27th August. PW4 was apparently not asked about any incident other than the assault incident on 31st August. That was the extent of the discrepancy, it can hardly be said that the learned magistrate failed to consider it when he expressly said when announcing his decision :

"PW2 and PW 4 did not mention about this incident. Benefit of doubt be given to Defendant."

28. It was principally because those two witness did not give evidence supporting PW1's allegation of a threw on 27th August that the learned magistrate acquitted the Defendant on the second charge of Criminal intimidation. There is nothing of substance in this particular.

Particular (e) reads as follows:-

"PW2 and PW4 gave evidence in court which conflicted with their police statements."

29. PW2 gave evidence that she suffered great pain as a result of the assault whereas in her statement to the police made almost a year earlier she said she was "Slightly injured". PW4 gave evidence that four persons assaulted PW1 whereas in her statement made some ten months earlier she said that two persons assaulted him.

30. There is substance in this criticism in that the learned magistrate not only failed to refer to the two matters but also, according to both Prosecution and, Defense counsel, failed to record the evidence of either previous inconsistency in his notes of evidence.

31. The alleged discrepancy in M's account is, however, more apparent than real. Although she said In evidence that four went up to PW1 and then in the next sentence said "They assaulted", her description limited direct involvement in striking at PW1 to two men one elbowing him and one using a hammer in any event she said on two occasions that the scene was one of "confusion". The apparent inconsistency, at its worst from the Prosecution point of view, would have made her evidence as to how many took part in the assault unreliable but would not have affected the reliability of her re-collection that there was such an assault in which more than one person participated. Similarly with PW2 the discrepancy as to the extent of her injury makes her evidence as to that suspect as an exaggeration. In the absence of other evidence supporting her evidence that she was injured the learned magistrate might not have been able to find the actual bodily harm element proved. There was, however, evidence from PW4 that PW2 was struck with hammer and medical evidence that an x-ray examination showed an injury which led a medical expert to suspect that a rib might have been fractured. Independent, unchallenged evidence showed that he did suffer more than a trivial injury. In view of that evidence the inconsistency between hot statement to the police and her evidence was therefore not material.

32. The other matters to which Mr. Sakhrani referred during his submissions were not provcd inconsistencies at all. The Witnesses claimed that details given in evidence had been related to the police but had not been recorded in their witness statements.

33. Although particular (a) gives some support for the general contention put forward by this ground, the inconsistencies mentioned in this particular could not by themselves, support a conclusion that any conviction was unsafe or unsatisfactory. The other particulars offer no support for the ground at all.

34. The second ground alleges that "the learned magistrate failed to evaluate ad adequately or at all the Crown's (sic) evidence". Particulars lettered (a) to (d) are offered in support of it.

Particular (a) reads as follows:-

"After the assault on 31st August 1987 no complain was made to the police until. 4 hours later and further no medical treatment was sought until some 8 hours after the alloyed assault although PW1 gave evidence that he was 'anxious' to receive medical attention."

35. The learned magistrate found PM1 to be a truthful winless. Delay in reporting to the police was a factor to be considered in assessing the credibility of PW1's and PW2's allegations of assault but it could have had no adverse effect on the credibility of PW4. She confirmed the evidence of PW1 and PW2 that the assaults of which they complained did occur. Dilatoriness in complaining might have been a significant factor if the evidence to support the assault charges came only from PW1 and PW2. It was of no significance, however once the evidence of PW4 was accepted.

Partcular (b) reads as follows:-

"In convicting the Defendant on counts (C) and (D) the learned trial magistrate, placed great weight on the eye witness account of PW4 whose evidence he did not doubt. The learned magistrate was satisfied that the Defendant with others assaulted PW1 and PW2, Yet PW1 has said that the Defendant did not assault him."

36. PW4 did not specifically say shat she saw the Appellant strike PW1. For evidence as to this has already been referred to in dealing with Ground 1(e). PW1 and PW2 gave evidence to the effect that he Appellant was present instigating and encouraging others to assault them. Having accepted that evidence the learned magistrate could come to no other conclusion than that he with the others did assault them.

Particular (c) reads as follows:-

"The cheque of PW1 issued in favour of [the company] on 20th August 1987 for the sure of $50,000 and the IOU taken on 31st August 1987 were in themselves of no direct benefit to the Defendant, here would be no reason to use oral threats or violence to obtain these."

37. The evidence common to both the Prosecution and the Defense cases was that both documents were handed over by PW1 and accepted by the Appellant and that on each occasion, having received the respective document, he and his companions then parted company with PW1.That evidence alone suggests that the documents were of some benefit to the Appellant the Appellant's own evidence was that the IOU was made out on his own initiative and his explanation of the importance of that document was expressed in his own words as follows :-

"This shows he admitted liability for the sum."

38. If that is what he believed then he had a powerful motive to resort to threats in order to get it.

Particular (d) reads as follows:-

"The evidence of the assault given by PW1 and PW2 was not supported by the medical evidence in hat there were no lacerations, abrasions or bruises found upon examination."

39. The evidence of the assault on PW2 was supported by the medical evidence. The evidence of PW1 and PW2 about the assault on PW1 was supported by the evidence of PW4 There is no substance in this particular.

40. As none of the particulars support this second ground, I find it has no merit.

41. The third ground is that "the learned trial magistrate erred in law in that he failed to pay any or any adequate regard to the authority of Chan Wai-hung V.R. (Mag App.1083/85)."

In Chan Wai-hung two brothers were punched by a group of which the Defendant was a member. At his trial on charges of Assault Occasioning Actual Bodily harm one brother said that he suffered no significant injury whilst the other said:

"I sustained injury but I was not told what injuries."

42. The medical officer who examined the brothers did not give oral evidence. Instead his evidence was mead without his being called. There was no reference to any injury on either of them but merely that in each case there was 'local tenderness' in a specified bodily area. There was "no other referent to injury in any other part of the evidence and the Statement of Findings merely recorded that injuries had been that sustained by both."

Bewley J., after referring to that evidence went on to say:-

"According to Archbold, actual bodily harm means exactly what the words import - some actual bodily injury.

In R. v. Miller ([1954] 2 QB 282, 292) Lynskey J. quoted with approval a statement that formerly appeared in Archbold: 'Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor... ' There must, therefore be some harm non necessarily permanent A complaint of pain dons not establish that injury occurred in the circumstances of this case it would have been more satisfactory had the medical officer been called as a witness.

On the evidence it seems to me an abuse of language to hold that either victim suffered actual bodily harm."

43. Mr. Sakhrani contends that Chan Wai-hung is authority for the proposition that evidence by a witness that he suffered pain during an application of violence to his body could never to evidence of actual bodily harm I do not think that that is what Bewley J. meant He was dealing with a case where the only evidence was that the victims of assault complained of pain when consulted by a doctor it was not a case where the victims gave evidence that they suffered any pain at the time. Where a victim toes give such evidence and is believed, bodily harm is proved. Whether that bodily harm amounts to actual bodily harm is a question of degree. There is, of course, some difficulty in expressing precisely where 'bodily harms' ends and 'actual bodily harm' begins. Professor Glanville Williams in his Textbook of Criminal Low, 1st ed., at p. 154 demonstrates that difficulty in the following way:-

"This is a silly expression - as though there were some kind of contrasting bodily harm that was not actual "actual" "Actual" does not mean physical as opposed to mental, because ... It has been ruled to include a hysterical and nervous condition resulting from an assault. Presumably it means 'more than trifling'. Transitory pain is obviously not enough, but what of a bruise or a weal? Presumably a cut or an area of burning is actual bodily harm, unless perhaps it is very small. We lack judicial guidance.

44. Jowitt's Dictionary of English Law, 2nd ed. Vol. 1 defines both terms. "Bodily harm is defined as "any injury which is merely technical or trivial, as distinguished from the more serious injury termed 'actual bodily harm' (p. 233). The definition of "Actual bodily harm" is identical with the definition which Lynskey J. favoured as shown in the passage from the judgment of Bewley J. set out above.

45. In Taylor v. Granville ([1978] Crim. L. Rev. 482) the defendant was charged with Assault occasioning Actual bodily Harm. The justices found that he, inter alia, had struck his victim in the face. The defendant contended that the prosecution had failed to prove that actual bodily harm had been suffered. The justices, however, were of the opinion that the attach must have caused bruising and injury to the victim's face, and they convicted the defendant. The defendant appealed. It was held by the Queen's Bench Divisional Court that the justices were justified in inferring from the blow struck by the defendant that the victim had sustained some bodily harm, however slight, and therefore there was no substance in the defendant's contention.

Professor J. C. Smith's commentary on the case is as follows:

"Merely to touch another person's face against his will would amount to an assault (liege used to include battery) but it would not be an assault occasioning actual bodily harm. Actual bodily harm 'includes any hurt or injury calculated to interfere with the health or comfort of the Prosecutor ... ': per Lynskey J. in Miller [supra] The justices found that the defendant 'struck' bin victim. This implies violence going beyond mere touching and would entitle (though not perhaps require) justices to find that actual bodily harm followed. The causing of the harm, like any other fact, may be proven by circumstantial as wwll as by direct evidence."

46. That interpretation falls somewhere between that of Professor Glanville William and that of the Appellate Division Of the Supreme Court of Ontario 1n R. v. Tresagne (45 C.C.C, 270, 274) where is was held that actual bodily harm means little if anything more than the old term 'Battery'. Professor Glanville Williams interpretation, hewever, has the attraction that firstly, it is more favourable the person charged than the other two interpretations just mentioned, and secondly, it is more consistent with the distinctions recognised by the Offences Against the Person Ordinance which prescribes a maximum penalty of imprisonment for one year for a battery which constitutes no more than the offence of Common Assault (s. 40) and a maxim penalty of imprisonment for there years for a battery which constitutes the offence of Occasioning Actual Bodily Harm (s.39), For those reasons I prefer Professor Glanville Williams interpretation for the purposes of this case.

47. The objective medical evidence in this case supported a finding that PW2 suffered more than a trifling injury and more than transitory pain. There can be no doubt that the learned magistrate was entitled to find that the assault on her did occasion actual bodily harm.

48. In relation to PM, although the objective medical evidence did not establish that he had suffered any bodily harm, it was still open to the learned magistrate to find, even in the absence of such evidence, that PW1 had suffered actual bodily harm. In order to do so, however, he would have had to have been satisfied beyond a reasonable doubt that the force applies was neither technical nor trivial, and that the accompanying pain which he said he suffered was neither trifling nor transitory. The elbowing and kicking assault of him might have occasioned actual bodily harm. But, in order to find that it did, the learned magistrate needed to undertake a more elaborate analysis of he evidence than can be found in his ex tempore reasons far verdict and his Statement of Findings. It cannot; therefore, be said that he did properly conclude that the evidence established the element of 'actual bodily harm' on the charge relating to PW1 The verdict of guilty of that offence is unsafe and unsatisfactory and must be set aside. The proper verdict should have been guilty of Common Assault,

49. The result is that the appeal against conviction in respect of the 1st and 4th charges is dismissed The appeal against conviction in respect of the 3rd charge is allowed to the extent that the conviction of the offence of Assault Occasioning Actual Bodily farm is quashed but in lieu thereof a conviction of Common Assault is substituted.