HKSAR v. LAW CHUNG KIN

HCMA 942/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 942 OF 2005

(ON APPEAL FROM KCCC 3281 of 2005)

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J U D G M E N T

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1.  The Appellant was convicted, after trial, of a single charge of criminal intimidation.  The charge arose from an undercover police operation during which a police officer posed as a taxi driver to investigate illegal activities relating to taxi services.  That police officer was the sole prosecution witness.

2.  He testified how the Appellant had approached him upon two separate occasions whilst he was sitting in a parked taxi at the place where the illegal activities were suspected to be carried out.  He testified as to the words used by the Appellant towards him as well as the Appellant’s conduct and demeanour at the time, particularly at the time of the first approach.

3.  The words uttered appear at paras. 9 to 13 of the Statement of Findings.  I see no need to repeat them here.  They contained a threat to damage PW1’s vehicle and a threat to PW1’s safety.

4.  In cross-examination on behalf of the Appellant use of some of the words testified to by the prosecution witness was disputed.  That was rejected.  The Appellant elected not to give evidence or to call witnesses.  An election not to give or call evidence is no evidence of guilt.  The consequence of doing so is to leave the prosecution case enjoying the advantage of not being undermined, contradicted or explained by any testimony from the accused.

5.  The Magistrate rightly accepted the evidence of the prosecution witness.  He carefully directed himself as to the appropriate tests to be applied in a charge of this nature, especially relating to intention, helpfully setting them out in detail in his statement of findings. 

6.  The Magistrate made a specific finding that the words were uttered by the Appellant so as to “cause fear” after considering and rejecting the submission that the Appellant may have simply lost his temper.  That was, in my judgment, the only inference for him to have drawn looking at the evidence as a whole.

7.  The appeal is dismissed and the conviction confirmed.