HKSAR v. WONG KWAN HAP

HCMA1029/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1029 OF 2007

(ON APPEAL FROM TMCC 3236 OF 2007)

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Dates of Hearing : 16 January, 11 April and 31 July 2008

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J U D G M E N T

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1. The appellant Wong Kwan Hap was convicted after trial of the following offences :

(1)     1^st charge — claiming to be a member of a triad society, contrary to section 20(2) of the Society Ordinance, Cap. 151; and

(2)     2^nd charge — criminal intimidation, contrary to section 24(a)(1) of the Crimes Ordinance, Cap. 200. 

2. The appellant was sentenced to six months’ imprisonment for the 1^st charge and three months for the 2^nd charge, both sentences to run concurrently, making a total of six months’ imprisonment.  The appellant appeals against conviction.  

The prosecution case

3. The complainant Mr Cheung was a passenger on the upper deck of a bus at the material time.  He was annoyed by the fact that the passenger sitting behind him (a young man surnamed Liu) kept pressing and moving his leg against the back of the seat.  Cheung thus requested Liu to refrain from doing so.  In response, Liu and three other persons (one of whom was the appellant) shouted at and scolded Cheung.  Cheung went downstairs to make a complaint to the driver.  Cheung also informed the bus driver that he would be calling the police.  Cheung indeed called the police before returning to stand at the upper deck to observe Liu and his friends.  Cheung said he did so as he was not sure if any of them had weapons, and whether they would cause harm to other passengers and to Cheung himself.  At this stage the appellant walked towards him and said, “ I belong to ‘Shui Fong’, I am going to blow the whistle”.  Cheung saw the appellant soon make a phone call.  

4. It is in the admitted facts that “Shui Fong” is an active triad society in Hong Kong and “blow the whistle” means to call other(s) to assist. 

5. While waiting for the police to arrive, the appellant approached Cheung and said, “F*** your mother, I will get someone to f*** beating you to death”. 

6. Senior Police Constable 22327 was the officer who went to scene to investigate.  According to his evidence, Cheung’s complaint was that the appellant had said to him, “F*** your mother, could have beaten you to death ...”  This policeman then took it upon himself to be a mediator, trying to get the appellant to apologize to Cheung and have the matter resolved.  The appellant insisted he had done nothing wrong and refused to apologize.  The appellant was arrested for the offence of criminal intimidation and under caution he said, “I did not intimidate him, I only have a quarrel with him.  He has also scolded me.” 

The defence case

7. Both the appellant and Liu gave evidence.  The appellant was then a manager of a restaurant and the superior of Liu, who was the chef.  The appellant, his wife, Liu and some others were all on board the bus on the upper deck.  According to the appellant, Liu was sleeping when Liu’s mobile phone rang, waking Liu up.  While Liu was talking on the phone, Cheung turned round and asked Liu to remove his leg.  When Liu did not respond, Cheung then stood up, put down his knapsack, and loudly demanded Liu to remove his leg.  On seeing that Cheung’s body language suggested he was about to assault Liu, the appellant used foul language to scold Cheung.  The appellant said both parties traded foul language during the quarrel.  The appellant said he never stood up from his seat, nor did he say anything about “Shui Fong”, “blow the whistle”, or getting someone to beat Cheung to death.  The appellant did say that he thought the action of Cheung in calling the police after both parties have simply quarrelled was somewhat like making a mount out of a molehill.  While waiting for the police to arrive the appellant said he muttered to himself about Cheung’s action. 

8. Liu admitted in evidence that he did place his leg onto the seat in front.  He said while he was talking on the phone, Cheung scolded him out of the blue.  Liu described Cheung standing up and removed the knapsack from his body before shouting to him fiercely, “put down your leg”.  Liu also testified the appellant never said anything about “Shiu Fong” etc. as alleged by Cheung. 

Grounds of appeal

9. Mr James Sherry, counsel for the appellant, advanced three grounds of appeal :

(a)      the convictions were against the weight of the evidence;

(b)     the magistrate erred in rejecting the defence evidence; and

(c)     the magistrate failed to consider whether the appellant had the intent to cause alarm when uttering those words in relation to the 2^nd charge, citing HKSAR v. Lo Kwok Lam, HCMA155/2001 in support. 

10. I do not intend to set out in detail the submission here, but will deal with the gist of the complaints during my discussion of the case.  

Discussion

11. An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so : see HKSAR v. Chou Shih Bin,FACC11/2004. 

12. In my view, it must be acknowledged that a magistrate had the advantage of observing witnesses giving evidence in court, whilst the judge on appeal could only rely on the transcript.  The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable, or that the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction can be rendered unsafe and/or unsatisfactory. 

13. It is clear that the whole incident started with the uncivilized and selfish behaviour of Liu in pressing and moving his leg against the back of Cheung’s seat, thus causing annoyance to a fellow passenger.  On the face of it, when Cheung, whose comfort was disturbed by such inconsiderate behaviour, told Liu to refrain from such conduct, and as a result Cheung was scolded by Liu and his group including the appellant, one’s sympathy naturally goes to Cheung.  Having said that, it must be remembered that when Cheung decided to ask Liu to remove his leg, Cheung did not know then that Liu was not alone.  At that moment, it was not a case of “one against four” — although later on it was.  The magistrate should have considered whether Cheung did the act described by the defence, and if so, whether such body language caused the appellant and Liu to think he would assault Liu, particularly in view of Cheung’s height (170 cm) and weight (160 pounds).  

14. In this respect, I also note from the transcript that both the appellant and Liu described Cheung standing up and putting or placing down his knapsack before shouting or demanding Liu to remove his leg.  There was nothing about Cheung throwing down the knapsack with force as described by the magistrate in the Statement of Findings.  

15. From Cheung’s evidence, he was not someone easily overwhelmed by the sheer number of the other party.  According to him, he went to complain to the bus driver about Liu’s inconsiderate act and him being scolded by others.  He called the police before returning to the upper deck.  In other words, Cheung called the police simply on the basis he was scolded as a result of justifiably telling someone to remove his leg so as not to annoy another passenger.  His act of returning to keep an eye on the group is hardly the kind of action taken by someone who was scared.  He could have stayed downstairs to wait for the police.  His explanation of the group might cause harm to other passengers is inherently improbable.  Why should the group harm other passengers when there was no evidence to suggest other passengers were taking sides!  

16. When considering whether Cheung’s version of never uttering a single foul word in return and just bearing all the insults quietly is believable, one has to consider his rather unusual act of returning to the upper deck to observe the group.  

17. The magistrate, when dealing with the defence versions, started by saying the defendant “deliberately painted a picture that he was not in the wrong”, “trying very hard to create an innocent image …”  It appears to me that the magistrate had not considered the defence in a fair and balanced manner.  His rejection of their evidence on account of consistencies in what he called minor matters is not a justified one either.  Cheung’s evidence was the appellant approached him to utter words about “Shui Fong” etc.  Whether the appellant even got up from his seat is a matter the magistrate had to resolve.  It is not a minor matter.  

18. Even on the evidence of Cheung, he called the police when he was scolded by a group of people after he asked Liu to remove his leg.  At that stage, no assault or threats of assault was directed to Cheung.  It is not usual for someone to call the police under such circumstances.  If Cheung was concerned with his own safety, he would not have gone back upstairs and stood in full view of the group.  In the end, as a result of Cheung having called the police, passengers not involved in the incident were indeed asked to alight.  Both the appellant and Liu pointed out the reaction of other passengers to show the two of them were not the only one who thought Cheung was overacting.  In the context of this case, such evidence could not be said to be trivial either. 

19. Another matter that caused me concern was the fact that Cheung said nothing about “Shui Fong” or “blow the whistle” to the police who arrived at the scene shortly to investigate the matter.  According to the police, Cheung had complained that the appellant had said words to the effect of beating Cheung to death.  It is of interest that the policeman thought it was a proper case for settlement.  He tried to mediate and only arrested the appellant after the parties failed to settle. 

20. While Liu’s inconsiderate act was morally reprehensible, it is still basically Cheung’s words against those of the appellant and Liu whether the appellant had claimed to be a member of a triad society and had intimidated Cheung.  The magistrate had not properly evaluated the defence evidence, particularly when he attributed an aspect of exaggeration to the defence case (forcefully throwing down the knapsack) when witnesses did not do so.  

21. Did Cheung retaliate with foul language resulting in a shouting match?  What was the real reason for Cheung to return to the upper deck after calling the police?  These are matters that would have a direct relevance as to whether the appellant did utter the words Cheung said he did, and if so, his reason or purpose of uttering them.  Did the defendant utter them with a view to alarm Cheung?  Or did he utter the words at the spur of the moment during heated argument? 

22. In view of the unsatisfactory way the magistrate dismissed the defence case, the conviction is not a safe one.  For these reasons I allow the appeal, quash the conviction and set aside the sentences imposed.