HKSAR v. WONG EPAPHRAS CHUNG KAY

HCMA1142/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1142 OF 2006

(ON APPEAL FROM ESCC 2918 OF 2006)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction after trial by Mr William Lam at Eastern Magistrates’ Court on 8 November 2006 of one charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374, and one charge of criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, Cap.200.

2. The charge of careless driving alleged that the appellant had driven a private car, registration number JN593, carelessly at the junction of Belcher’s Street and Sands Street on 4 May 2006.

3. The charge of criminal intimidation alleged that at the same place he had threatened Mr Leung Kam Tak (“PW1”) with injury to his person, with intent to alarm him.

4. There were only two witnesses for the prosecution, PW1 and a police officer PC53482 (“PW2”) who had later attended the scene.  The appellant elected not to give or call evidence.

5. PW1 gave evidence that at about 2:15 a.m. on the day in question he had just driven out of the Western Harbour Tunnel.  He drove to the west along Shing Sai Road, which is on the waterfront, before turning to the left into the middle lane of Sands Street, which had three lanes.  Just after making the turn, a jeep, registration number JN593, driven by the appellant had suddenly cut into his lane from the left causing him to swerve to the right into the right lane.

6. The appellant’s vehicle had then cut into the right lane less than half a vehicle’s length ahead of him and then braked.  Finding this driving very dangerous, PW1 had sounded his horn lightly.  The two vehicles had then proceeded along Sands Street in the right hand lane, the appellant’s vehicle ahead, PW1’s vehicle behind.  Because of the manner of the appellant’s driving, PW1 had slowly cut back again into the middle lane but the appellant had then immediately cut from the right into the middle lane in front of him.  PW1 had to brake.  PW1 said he formed the impression that the appellant had done this deliberately.  He then sounded his horn again and flashed his headlight.

7. Both vehicles had then turned to the right into Belcher’s Street.  The appellant’s vehicle negotiated the bend on the right side close to the right lane of Belcher’s Street whereas PW1 followed, turning into the middle lane of Belcher’s Street.  The appellant then suddenly cut to the left in front of PW1’s vehicle and stopped his vehicle.

8. The appellant alighted from his vehicle and walked over to PW1’s window and slapped it with heavy force before saying loudly : “What the fucking hell are you doing?  I will fucking beat you up.”  PW1 said that he was scared.  He saw that there was a male passenger sitting in the appellant’s car.  He was not sure whether they would attack him.  He therefore remained in the car and called the police on his mobile phone.  He then waited until the arrival of the police.  He denied that his vehicle had collided with the appellant’s vehicle.

9. The magistrate found PW1 to be an honest and reliable witness.  He found that by cutting into another road user’s lane as PW1 alleged, the appellant was not exercising the degree of care and attention which a reasonable competent and prudent driver would exercise in the circumstances and therefore found that the appellant was driving carelessly.  He accepted the evidence of PW1 as to the words uttered by the appellant.  He found that they were not merely “wild and whirling words from a mere outburst of spleen”.  He found that the defendant spoke the words with a genuine intention to cause fear and which in fact did cause PW1 fear.

10. The appellant puts forward two grounds of appeal.  The 1^st ground of appeal alleges that the magistrate relied on speculation in attempting to resolve a material inconsistency between the evidence of PW1 and that of the police officer.

11. The inconsistency was in relation to words allegedly uttered by PW1 to PW2 after the officer had arrived at the scene.

12. In cross-examination PW1 denied that he had told the officer that the appellant’s car had been stationary at traffic lights at the junction of Sands Street and Belcher’s Street despite the fact that the lights were green and that he had sounded his horn to indicate to the appellant to move off.

13. When PW2 was cross-examined he agreed that that was what PW1 had told him and that he had recorded it in his statement.

14. In his Statement of Findings the magistrate referred to two points made by the defence in criticising the evidence of PW1.  The appellant does not now complain about the way he dealt with the first point.  The magistrate then referred to the second point as being that “according to PW2, PW1 had stated at the scene that because the Deft had not moved promptly when the lights turned green, PW1 tooted his horn.”  He went on : “Accordingly I warn myself that when examining PW1’s evidence I need to be extra careful.”

15. He dealt with this point in the following terms :

“Regarding Point 2, we are not permitted to use PW2’s out-of-court statement to show the truth contained inside.  PW1 denied he had said this to PW2.  PW2 might have heard PW1 incorrectly, and PW2 might have missed writing into his statement as for example how PW1 described Deft’s cutting of lanes before turning into Belcher’s Street, which PW2 agreed PW1 had said but he had not written it down.  But more significantly, the undisputed evidence is that all the intersection lights were green when PW1 and Deft passed them, i.e. there was no occasion when Deft needed to stop in front of PW1 at any traffic light, i.e. there was no need for PW1 to ‘hurry the Deft up’ by tooting his horn.  Further and in any event, PW1 did say in court that he had tooted his horn, and that was when Deft had swerved into his lane at close proximity, in order to sound his warning, and this I find perfectly reasonable for a driver in PW1’s situation to have done.”

16. At least in the appellant’s written perfected grounds of appeal, though Mr Choy for the appellant did not elaborate on it in his oral submission before the court, it is suggested that the magistrate erred in law in so far as that passage suggests that he may have regarded PW2’s evidence as to what the defendant had said at the scene as inadmissible.  I consider there is no substance in this criticism.

17. There is nothing to suggest that the magistrate treated PW2’s evidence about this matter as inadmissible in assessing the credibility of PW1.  He clearly did regard it as admissible evidence for this purpose otherwise he would not have said that it was one of the reasons he warned himself to be careful when examining PW1’s evidence.  He would not have referred to the possibility of PW2 having heard PW1 incorrectly if the evidence had been inadmissible.

18. He was correct in so far as he said PW2’s out of court statement about the matter was inadmissible evidence of the truth of the contents.  It is not correct, as Mr Choy has submitted, that that has little application to PW1’s veracity.  If there had been other admissible evidence contradicting PW1’s denial of having uttered the words in question that would have be relevant to an assessment of his credibility.  There was not.

19. The argument that the magistrate resorted to speculation in resolving the conflict in evidence is based on the magistrate’s remark that :“PW2 might have heard incorrectly”.  It is argued that instead of making a definitive finding on the truthfulness of PW2’s evidence on this matter, which the magistrate should have done before he could properly assess the truthfulness of PW1’s evidence, he merely came to a half way view that PW2 “might have heard PW1 incorrect” leaving open the possibility that PW2 had heard PW1 correctly.

20. While the magistrate did not expressly make any finding directly in relation to the inconsistency, the magistrate concluded the paragraph by saying that he had no doubt that PW1 was an honest and reliable witness.  In my view it follows from the fact that he had earlier expressly referred to the conflicting evidence as to what PW1 had or had not said at the scene that that amounted to a finding that PW1 had not made the contested remark.

21. It follows that the phrase “PW2 might have heard PW1 incorrectly” was not his final conclusion about the matter.  His final conclusion was that PW1 was an honest and reliable witness.

22. It was not incumbent on the magistrate to make a positive finding as to why the police officer recorded what he did in his statement.  He was not in a position to do so.Obviously in the circumstances there was a possibility that the officer may have misheard what PW1 had said.  Another possibility not referred to by the magistrate might have been that the officer had misremembered what PW1 had said when he came to make a record of what had occurred.

23. The 2^nd ground of appeal is that the magistrate erred in finding that the appellant had the intent to cause fear to PW1 and that the words used by the appellant were not merely “wild and whirling words”.

24. In making the finding that the words uttered by the appellant were not “wild and whirling words” the magistrate clearly had in mind the judgment of McMullin J in Lo Tong Kai v. R. [1997] HKLR 193 to which he had been referred by Mr Morley, the solicitor for the appellant, in his closing address.  That was a case in which the magistrate had appeared to regard the background and therefore the context in which the remarks had been made by the defendant as being irrelevant.  McMullin J stressed that the context of the remarks were of paramount importance in order to determine inter alia whether the defendant had a genuine intention to cause fear.

25. That was not the situation in the present case where it is apparent that the magistrate did examine the circumstances in which the words were uttered.  He expressly considered whether the appellant’s remarks might be “wild and whirling words”.

26. In his written submission Mr Choy suggests that “the fact that the Appellant did not say anything nor did anything to PW1 immediately afterwards was potent evidence negating any intent to carry out the alleged threat” but this point was expressly dealt with by the magistrate when he referred to PW1’s evidence that the appellant had only walked away after he had taken out his mobile phone and indicated he was about to call the police.

27. It has been borne in mind that the issue was not whether the appellant intended to carry out the threat he had uttered but whether he intended to alarm PW1 by the threat.

28. The words on their face threatened PW1 with injury to his person.  Whether or not such expressions are frequently used in Hong Kong, I find it fanciful to suggest bearing in mind the nature of the words uttered by the appellant and other surrounding circumstances including the fact that the appellant had driven in front of PW1’s car causing it to stop, had alighted from his vehicle and walked over to PW1’s car and then banged on PW1’s window before uttering loudly the words complained of that he did not intend to alarm PW1.

29. I found nothing in this ground of appeal.  I dismiss the appeal against conviction.