HKSAR v. LAM SIU FAI

HCMA798/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.798 OF 2002

(ON APPEAL FROM TMCC 1205 OF 2002)

---------------------

---------------------

------------------------

J U D G M E N T

------------------------

1. The appellant in this case faced a single charge of criminal intimidation contrary to section 24(c)(i) of the Crimes Ordinance, Cap. 200. He denied the charge but was convicted and imprisoned for two months. He appealed against conviction and sentence and was allowed bail pending the hearing of this appeal.

2. The facts showed that Mr Chu Cho Yin, a taxi driver, drove to a police station because of a troublesome passenger. He gave evidence that at the police station he reported to a uniformed officer at the gate and was asked to move his taxi. Mr Chu returned to his taxi and was there assaulted by his passenger. The passenger was separately charged with common assault and pleaded guilty. Mr Chu returned to the uniformed officer and this appellant who knew the passenger arrived on the scene. The appellant was a police officer but was not in uniform and it would appear that tempers flared and voices were raised.

3. The magistrate related in some detail what happened after the appellant appeared on the scene. Having done so, he found as a fact that the appellant threatened Mr Cho and that he meant to alarm him. He found that the words used were capable of alarming a man of firm mind and that they did alarm Mr Cho. He convicted the appellant on these findings. It is at this stage helpful to read the words of the section :

"Any person who threatens any other person

(a) with any injury to the person, reputation or property of such other person; or

(b) with any injury to the person, reputation or property of any third person, or to the reputation or estate of any deceased person; or

(c) with any illegal act,

with intent in any such case

(i) to alarm the person so threatened or any other person; or

(ii) to cause the person so threatened or any other person to do any act which he is not legally bound to do; or

(iii) to cause the person so threatened or any other person to omit to do any act which he is legally entitled to do, shall be guilty of an offence."

4. It is apparent that an offence under this section can be committed in a number of ways. The prosecutor may choose between three types of threats and between three different intentions. The charge in this case reads as follows :

"Criminal intimidation

Contrary to section 24(c)(i) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.

LAM Siu-fai, you are charged that on the 12th day of February, 2002 at Carpark entrance, Yuen Long Police Station, 246-246 Castle Peak Road - Yuen Long, New Territories, in Hong Kong, you threatened male CHU Cho-yin, with intent to alarm the said male CHU Cho-yin."

The statement of offence refers to section 24(c)(i) and we therefore can perhaps deduce that it was alleged that an "illegal act" had been threatened with intent to alarm Mr Chu. The particulars of the offence should have said so. They did not. There is no reference to "illegal act" and I also note the omission of any description of what the alleged illegal act was.

5. The respondent today contends that it is implicit in the magistrate's findings that he did consider the element of illegal act. But, if he had, which one? The respondent in his written arguments says that it was "... that PW1 was threatened not to make a report to the police after he had been assaulted. It is submitted that the Magistrate had considered that element when he gave his verdict." Mr Ho for the respondent persists in that argument today.

6. I do not agree that this is implicit in the magistrate's Statement of Findings. The magistrate if anything was concerned with a threat to alarm not a threat to prevent a report being made. As I have earlier indicated he set out precisely what his findings were which founded the conviction. The illegal act apparently complained of is not mentioned in the charge, and the magistrate does not deal with this element of the offence in his findings.

7. Indeed, counsel for the respondent rather defeats his own case when he tells me that the illegal act in this case was that PW1 was threatened not to make a report to the police, because if this were right the charge should have been under section 24(c)(iii) and not section 24(c)(i). A good example of the confusion which can flow from an imprecisely worded charge.

8. Counsel for the respondent has based his arguments on the magistrate's position. He does not consider the situation the appellant found himself in. The appellant is entitled to know precisely what allegations he faces and, in this case, it was far from clear. If he had relied on the statement of offence, he might have thought that he was charged with threatening PW1 with an illegal act with intent to alarm him. It would seem today, however, that the prosecution meant him to face an allegation of threatening PW1 with an illegal act with intent to cause him not to report an offence to the police. This is a most unsatisfactory situation which clearly cannot be allowed to stand.

9. Serious allegations have been made in this case against a man who was a serving police officer. I gather he has since resigned. Having heard the evidence the magistrate believed the allegations. This is something that does need to be properly resolved. I shall order that the matter to be remitted back to the magistracy for a trial de novo and I would recommend that the prosecution give serious thoughts to amending the charge before the retrial. Costs of the earlier trial below and of this appeal are to the appellant, to be taxed if not agreed.