R. v. LAU U CHOU alias LIU RUZAO

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

M.A. NO. 536 OF 1994

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J U D G N E N T

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1. This is an appeal against conviction and also sentence.

2. The appellant was convicted after trial by a magistrate, Mr Sinclair, on 28 April this year of a charge of criminal intimidation contrary to section 24A subsection 1 of the Crimes Ordinance and he was sentenced to a term of imprisonment for four months.

3. The appellant was jointly charged with another man that on 19 January this year, at Room 2, 17th floor, No.249 Kings Road in North Point, where the victim was living, he did threaten CHIU Kwok-ying, the victim, with injury to his person.

4. The co-accused was acquitted.

5. The principal witness for the prosecution was CHIU Kwok-ying, who is a boy aged 11.

6. The first ground of appeal advanced on behalf of the appellant through his counsel Mr Mumford QC is that the magistrate failed to establish that the victim understood the added responsibility to tell the truth involved in taking an affirmation over and above the ordinary duty to tell the truth. It was also advanced that the magistrate failed to record the questions put to PW 1 regarding his understanding of the nature and solemnity of an affirmation.

7. My attention was drawn to two cases: R v Hayes, 1977 1 Weekly Law Reports at page 244 and, in particular, at page 237; and R v Khan, 1981 73 Criminal Appeal Reports at page 190.

8. In the transcript of the record at page 7 the magistrate refers to the fact that the boy was affirmed in Punti, aged 11, precocity tested. In his statement of findings the magistrate at page 31 states that he was satisfied by inquiry that the victim, the boy in question, understood the solemnity of the occasion and the necessity of speaking the truth and cited the case of R v Hayes. Having reached this conclusion, the magistrate allowed the victim to be affirmed and stated that despite his comparative tender years he testified in a mature fashion.

9. The magistrate was quite clearly aware of his obligations before the victim was affirmed and I find there is no merit in this ground of appeal which is accordingly rejected.

10. The evidence given by the victim is that he lives with his grandparents at this address in Kings Road, North Point and that he is studying Primary 4 at school. He said that on 19 January this year there were two tenants living in his grandparents' flat, although he doesn't know their names.

11. He believes that he returned home on the evening in question at about 9.00 o'clock. He opened the front door and when he entered the flat he saw the appellant and the co-accused. He said he hadn't seen them before. Both of them were apparently watching television, according to his evidence, and the co-accused was searching his school bag.

12. He was asked which school he attended and he gave an answer that he was attending the Fukien Secondary School. He was asked by one of the defendants to page his mother, but he wasn't able to do so as she didn't live with him. He says he paged his uncle. His uncle then telephoned back a short while later.

13. He then refers to an attempt to page his mother, a further call from his uncle, who advised him to sneak out of the flat and that when he had done so the uncle would report the matter to the police. He then refers to another call from his uncle and that the appellant spoke to him on this occasion.

14. Later his grandmother telephoned him. According to her evidence, she was in Guangdong at the time. The appellant spoke to his grandmother. PW 1 said in his evidence as follows:-

"He told my grandmother that my mother owed him $150,000. He also said that my mother had left the money in her mother's home".

15. That is his grandmother's home, where he was living. The appellant said that:-

"... if my mother couldn't be located they would hit me so as to cripple one of my legs. On hearing this, I started to cry and didn't hear what else was said".

16. Shortly afterwards the telephone conversation finished and he says his uncle then telephoned once more, and that the appellant spoke to his uncle but he didn't hear what was said because he was crying. Later the victim says the appellant said to him that he knew where his school was and if his mother couldn't be located he would find the victim there and cripple his leg. The appellant and the co-accused then left. Shortly afterwards they were arrested by the police.

17. The victim was cross-examined as to various inconsistencies which were alleged to have been made by him with regard to the statement that he made to the police. However his evidence was not seriously challenged.

18. The uncle was PW 2. He gave evidence that at about 8.00 or 9.00 pm he was in Tsim Sha Tsui on the date in question, when he received a message to telephone PW 1, which he did. He found out that someone was looking for his mother, that is, the victim's mother, that there were two persons in the flat, and that the mother owed them some money. He was told to try and locate the mother but he was unable to do so. He says "A man took over the telephone and told me to locate my elder sister to meet him".

19. He also gave evidence with regard to a later telephone call with PW 1, when he told him to sneak out of the flat if he was able to do so. He also mentioned when he spoke to one of the men in the flat on the telephone that if they didn't leave he would call the police. He then refers to some other telephone conversations.

20. PW 3 was the victim's grandmother. She said on 19 January this year she was in Guangdong and telephoned PW 1 and she was informed that two people were looking for her daughter. She said she spoke to a man. She thinks there were two male voices at the other end, but only one spoke to her. This man said that her daughter owed him $150,000 and that the money had been left in her home. She said:-

"I told him I didn't know what had happened between them after he'd said that she had borrowed it in Macau. Then I told him that the money was left in his place".

21. The magistrate then asked a question as to why and received the following reply: "This was just a national response", which is believed to be "natural response". She then went on to say that he told her to find her daughter and she told him that she wasn't able to do so:-

"He told me that my son had her pager number. I told him that I had paged her but that she hadn't responded. He then said that if I couldn't find my daughter then I'd better buy a wheelchair to send my grandson to school. Those were his precise words".

22. PW 4 was a police officer. He testified that he saw the victim and that he was crying. This evidence was not challenged.

23. The magistrate in his findings stated that PW 1 was a truthful witness and his answers confirmed him as precocious with a full understanding of his duties to the court when testifying. He also reminded himself of the dangers of acting on the uncorroborated testimony of a child.

24. He described PW 2 as an honest witness and that he also accepted the evidence of PW 3. He commented that he found that the only real contradiction in the evidence was between PW 1's evidence and PW 2 as to what the appellant had said to PW 3 on the telephone. In respect of this evidence, the magistrate said the gist of either version is in fact the same, although he felt that PW 3's recollection was the more faithful in the circumstances. He went on to say that the differences, such as they were, suggested that there had been no collusion between the witnesses.

25. The charge itself related to the threat made subsequently and direct to PW 1 as the appellant faced him. I have no doubt that PW 1's recitation of what was said was reliable in that instance, even though it was not directly corroborated. He expressed that he had no doubt that what was alleged as having been said by the appellant to PW 1 was reliably related.

26. A long list of grounds of appeal, in addition to the one that I have already referred to, was filed and I was taken in great detail through the evidence. It was alleged that the prosecution witnesses were not impartial, and that the magistrate had misdirected himself on various aspects of the evidence, that he failed to take into account conflicts of evidence and contradictions, relied too much on demeanour, and erred in admitting hearsay evidence. There were indeed some conflicts and contradictions, but none of these conflicts or contradictions were material.

27. The appellant in effect was just clutching at straws. There were no merits at all in any of the grounds advanced on his behalf before me today and his appeal against conviction is dismissed.

28. I should have said of course that the appellant elected to give no evidence in his defence.

29. The appellant appeals against his sentence of four months imprisonment and my attention was drawn to one authority of Mr Justice Barnes, which was R v CHAN Ka-fai, an unreported Magistracy Appeal No. 1044 of 1989, when a sentence of 12 months imprisonment was imposed in respect of a conviction of criminal intimidation. A sentence of two months imprisonment suspended for two years was substituted upon appeal. It has been argued that the facts in this case are similar and that a suspended sentence would be appropriate.

30. The magistrate in his reasons for sentence said as follows:-

"Sentence the appellant to four months imprisonment, notwithstanding his previous good character and he has dependants in Macau".

He went on to say that he couldn't give him any credit for he didn't display any remorse. The appellant of course has no previous convictions. However, he went on to say later that the treatment of the child PW 1 by the appellant was shameful and would have caused the boy severe and perhaps lasting trauma.

31. I entirely agree with the sentiments expressed by the magistrate as far as this appellant is concerned, that a suspended sentence is not appropriate, and that he fully deserved the sentence that was imposed. His appeal against sentence is also dismissed.

Court adjourns - 12.57 pm

5. July 1994