HKSAR v. HAN CHIN CHOU

HCMA425/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 425 OF 2005

(ON APPEAL FROM STCC 2674 OF 2005)

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J U D G M E N T

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1. Mr Han, I am going to dismiss your appeal both against the conviction and the sentence.  Let me explain to you why. 

2. I appreciate that when the Housing Department clear illegal structures and take away a place where a man has lived for a long time, that that man will be upset, but the fact is the Housing Department go about these matters lawfully and the officer in this case, who was carrying out his duties, was acting lawfully.  The magistrate found you guilty of criminally intimidating him by a combination of your conduct and what you said and part of that conduct was brandishing a stick at him, out of which protruded some nails and that was followed by serious threats. 

3. If what the housing officer told the magistrate was correct, then you were clearly guilty of the crime with which you were charged.  You told the magistrate it did not happen like that and you have repeated that before me today. 

4. The way this appeal works is that I look at the papers in the case and ask myself the same questions the magistrate had to ask himself - am I sure that you are guilty - and when I do that, I am guided by the findings the magistrate made because he had the advantage of seeing and hearing the witnesses actually give evidence. 

5. I do not have that advantage of seeing and hearing the witnesses and it follows in our system, therefore, that you have a difficult job in seeking to overturn the findings of fact that he made unless you can demonstrate that there was something wrong in his reasoning or his evaluation of the evidence.  In my judgment, there is nothing wrong with the findings the magistrate made and the reasons he gave for making them. 

6. I can see exactly why he came to the conclusion he did.  It is not very likely that the officer from the Housing Department was going to invent a false case against you and his account was supported by a police officer because a police officer came to the scene and you spoke to him and you said this:  “That group of people demolished my house and threw away my clothes.  I picked up the stick to scare them.  I know I was wrong.”  You denied that.  And, again, why should the police officer join in with the housing officer to invent false evidence against you?

7. The issue before the magistrate was who was telling the truth.  He decided it was the housing officer and the police officer and nothing that has been put before me today makes me doubt the correctness of that conclusion. 

8. Let me turn to the question of sentence.  He sent you to prison for 6 months.  On the face of it, that might seem quite a severe sentence but the fact is you were on probation at the time for common assault and that common assault had arisen out of friction between you and the Housing Department.  You could not have had a clearer warning from the courts as to your future behaviour.  But despite being given that chance of probation for the criminal offence that you had committed, whilst subject to it, you committed a further offence of the same kind. 

9. Housing officers like this do a difficult job.  They do it on behalf of all of us, and the courts have no sympathy for people who either offer them violence of intimidate them.  In those circumstances, the sentence that was passed upon you in my judgment, is a proper one and you will have to serve the 6 months. 

10. You do raise the question here today about the welfare of your 12-year-old son and you claim that you should have your freedom earlier because no one is looking after him.  You have said that neighbours looked after him, then you said you did not know whether that was the case or not.  You said you have been unable to contact him by telephone. 

11. When I asked you about your knowledge of the welfare officer at the prison where you are detained and whether the welfare officers had contacted the Social Services, you were frankly evasive.  I regret to say that I do not believe that you do not know how your son is now being looked after and you have been in ignorance of that fact since 28 April, today being 6 July.  However, in case there is anything in the point, I shall take the step of ordering a Social Services Report upon his welfare.