THE QUEEN v. NG KWAN NAM

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JUDGMENT

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Kempster, JA :

1. This is the judgment of the court.

2. On 12 April 1989 in Tuen Mun District Court Ng Kwan-nam was found guilty by Judge Chua of five offences namely criminal intimidation, common assault, claiming to be a member of a Triad society, theft and conspiracy to pervert the course of public justice. On 26 April he was sentenced to 20 months imprisonment for the offence of intimidation, one month concurrent for assault, six months concurrent for claiming to be a member of a Triad society, two months consecutively for theft and four months consecutively for conspiracy. That gave an overall sentence of two years and two months imprisonment.

3. The judge also ordered or purported to order Ng Kwan-nam to repay to the victim not only the monies which were the subject of the theft charged but also a further sum of HK$20,000 lent to him by the victim on 8 April 1988. Against those convictions and, alternatively, against the sentence of 20 months imprisonment for intimidation and the order for repayment of HK$20,000 Ng seeks leave to appeal.

4. Judge Chua found as facts that on 25 April 1988 at the Long To Barber's Shop, I think described as a hair styling salon, on Shek Yam Estate the applicant punched Ng Kwok-wing, claimed in his presence to be a member of a Triad society called Wo Shing Tong and told Ng Kwok-wing that he would wait and take him to account later.

5. In the circumstances outlined in the Reasons for Verdict, which disclosed a combined operation involving assault, Triad proclamation and the advice that Ng would be accounted for later, we are satisfied that the learned judge was entitled to convict on charges 2, 3 and 1 respectively. The words "I will wait and take you to account later" were not, despite the best argument of Mr Hoosen on the applicant's behalf, to be construed as apt for a bookkeeping transaction.

6. It may be observed that the intimidation charge is somewhat analogous to the tort described in Wilkinson v Downton 1897 2 QB 57 of acting in a way calculated to harm as oppose to alarm, the plaintiff.

7. Judge Chua also found that on 26 April 1988 the applicant appropriated for his own use $10,000 which he was given by Lau Shue-tong by way of  repayment to Ng of a loan which had been made to him in contemplation of a joint venture in the hairdressing business.

8. The evidence available to the judge entitled her to find, as she did, that Ng had procured the assistance of the applicant to assist in the recovery of the HK$10,000 from Lau, that his intervention had proved successful, that Lau had agreed to repay it and that, much to the applicant's chagrin, a postponement of the time for repayment had been permitted by Ng. After the postponement the monies had been paid over to the applicant by Lau.

9. The provisions of s. 6(3) of the Theft Ordinance (Cap 210) sufficed to warrant the conviction on charge 4. The terms of that subsection are : -

"Where a person receives property from or an account from another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or its proceeds shall be regarded (as against him) as belonging to the other."

If we needed comfort in our conclusion we would only have to turn to the applicant's remark made when the judge was considering sentence : "I only took HK$10,000 which belonged to Ng Kwok-wing".

10. The last and fifth finding of fact was that on 15 September 1988, after the applicant had been charged with the offences committed on 25 April, the second defendant phoned Ng and asked him to meet the applicant at Kam Shing Restaurant. There, in the presence of the second defendant, the applicant offered to repay HK$20,000 which he had borrowed from Ng if Ng would agree not to give evidence in support of the charges. The applicant proposed to pay HK$5,000 into the second defendant's bank account forthwith which the second defendant would release to Ng once it was apparent that he had elected not to give evidence against the applicant. In our opinion the active and passive roles played by the second defendant warranted the conclusion that he was a party to the agreement charged and the applicant's consequent conviction for conspiracy.

11. By his Additional and Amended Perfected Grounds of Appeal, filed on 25 December 1989, the applicant contends that his convictions were vitiated by a material irregularity in the course of the trial by reason of judicial interventions rendering it impossible for his counsel to make a final address. But the interventions relied upon initially took place during Mr Wong's closing address for the Crown and to that extent they were to the applicant's advantage since they afforded Mr Lee, who represented him and the two other defendants, the opportunity of adopting or dealing with the judge's provisional views when making his final address. The fact that the judge said that she was acting as "Devil's Advocate" was neither here nor there. The expression signified that she was advancing possibly difficult questions for the Crown and then for the defendants, by Mr Lee, to deal with. Mr Lee joined in the colloquy at a late stage after which the judge invited him to deal with difficulties she tentatively felt about the applicant's case. Both Mr Wong and Mr Lee agreed that the outcome of all the charges depended on the credibility of Ng Kwok-wing.

12. Mr Lee was in no way precluded from making formal submissions at the time when the judge had no more questions to explore with him but elected not to do so. We are not prepared to find that the applicant suffered any injustice in consequence.

13. We are not impressed with the submissions that on a reading of the transcript we should depart from the trial judge's conclusions on the relative credibility of witnesses whether in the light of the probabilities of the case or otherwise; particularly having regard to the entries in the passbook produced by Ng Kwok-wing. Judge Chua, when reaching her conclusions, applied the correct standard of proof.

14. Coming to sentence, 20 months for the offence of intimidation seems to us to exceed the appropriate parameters for this particular offence even though the applicant's propensity for violence would leave him at the top end of the range. Having regard to the facts of this case we regard 12 months imprisonment as appropriate and propose to substitute such a sentence for that of 20 months. It will run concurrently with the sentences of one and six months so that the overall sentence which the applicant will serve will be one of  l8 months. In addition the learned judge ordered the repayment by the applicant to Ng of HK$10,000 and no complaint is made of that. However, she added a sanction, academic since the money has been repaid, namely that if any of the conditions for repayment were broken the applicant was to go to prison for a further ten months. We can find no power to make such an order. Further, she ordered the repayment of a civil debt of HK$20,000 which she found owing by the applicant to Ng. Since this order also was coupled with the invalid sanction it could not have been made either under s. 30 of the Theft Ordinance or under s. 73 of the Criminal Procedure Ordinance. We think that Ng must be left to his ordinary civil remedies in this regard and we quash that direction.

15. The application for leave to appeal against conviction is refused. The application for leave to appeal against sentence is allowed. We treat this as the hearing of that appeal and the appeal is allowed in the sense just indicated.