R. v. WU HAK KAN RAVAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 98 OF 1997

(On Appeal from ESC No. 3408 of 1996)

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J U D G M E N T

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1. The applicant, WU Hak-kan, was convicted after trial on a charge of Criminal intimidation. The offence was alleged to have been committed with three other persons.

2. According to the victim of the case, on the day of the offence she was on the way to a carpark near where she lived. She was approached by the applicant and three other men. It was indicated to her that they wished to talk to her about a loan that she supposedly owed a Fei Chai Choi. Despite her objection, she was still taken on board a private car in the course of which the suggestion was that the other three men actually threatened to beat her up.

3. The victim herself denied owing any more money to Fei Chai Choi. Nevertheless, she was made to sign an IOU which was then kept by the applicant. The applicant, in the course of the encounter, also requested the victim to repay the sum by instalments.

4. According to the victim, the other three men were behaving in a fierce manner. The applicant himself had not used any express threat as such, but in the course of the encounter after she had been threatened by the other three men, the applicant said words to the effect that if the victim did not write out the IOU he requested, he would not know what the other three would do to her. The other three men then again threatened the victim by saying that they were going to beat her up, and one of them said if she did not comply, she would be taken to the Peak where her head would be shaved.

5. At the conclusion of the prosecution's case, the defendant elected not to give evidence nor call any evidence as he was entitled to. The defendant, of course, did not give or call any evidence, but the absence of evidence from the defence would mean that there was no evidence to explain, undermine, or contradict the evidence presented by the prosecution against him.

6. Despite the inconsistency between the evidence of the victim and the content of her witness statement given to the police after the offence, it was open, in my view, to the learned magistrate to accept the evidence of the victim in court which the learned magistrate clearly did. On the evidence, it was clear that the victim was forced to sign an IOU in respect of a debt that she was alleged to have owed Fei Chai Choi, and in the course of which, she had been threatened with injury to her person in order to cause her alarm.

7. The applicant, apart from saying that if the victim did not write out the IOU, he would not know what the other three would do to her, had not, in fact, uttered any other express threats to the victim.

8. In my view, in the light of the background and the circumstances of the case, particularly how the other men had treated the victim before those words were uttered by the applicant, by saying that he did not know what the others would do to the victim, in my view, already constituted a threat with the intent to alarm the victim. There could be no other reason for him to say words to such effect in the circumstances of this case but to alarm her.

9. In any event, it was clear on the evidence that the applicant was, in fact, acting in concert with the other three men in order to threaten the victim.

10. From the entire background of this case, as demonstrated by the evidence, that was the irresistible inference to be drawn. When two or more persons commit a crime together, each of them may play a different part but each is guilty of the offence. As I have said, on the evidence, the only irresistible inference was that there was a joint plan to threaten the victim, to alarm her, to force her to sign the IOU, and that the applicant was part of such a plan.

11. Apart from the threatening words that he himself uttered to the victim by saying that if the victim did not do what he asked her to do, he would not know what the others would do to her, he was also responsible for the other threats uttered by his accomplices in the execution of their joint plan. Simply, in my view, the applicant was clearly part of it, and that he was acting in concert with his accomplices.

12. The learned magistrate could not be faulted for coming to the conclusion, as he did, that the applicant was part of this joint enterprise to intimidate the victim in order to alarm her. It was perhaps better that the learned magistrate should have made reference to the applicant's having a clear record, but in the light of the election on the part of the applicant not to give evidence, such a failure, in my view, is of little consequence as the matter of his character had not been put in issue.

13. In my view, the applicant was, on the evidence, rightly convicted. The application for leave to appeal is therefore refused.