THE QUEEN v. YEUNG SAN-WAH

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JUDGMENT

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1. This is an appeal against conviction for criminal intimidation. The magistrate found, after hearing the two prosecution witnesses ("P.W.1" and "P.W.2") and the defendant ("D.1"), who gave evidence on his own behalf, that about 7.30 in the evening of 21st July, 1986, P.W.1 and P.W.2 were waiting for a public light bus ("P.L.B.") at a public light bus stand in Sheung Shui.

2. P.W.2 got into the P.L.B. whereupon P.W.1 waved to him. D.1, who was sitting in the P.L.B., apparently saw this gesture and misinterpreted it as being directed at him. He got out of the P.L.B., grabbed hold of P.W.1 and spoke to him threateningly, following this with a punch on the chest and a kick on the leg. P.W.2 saw this, got off the P.L.B. and intervened. He was told by D.1 to mind his own business. D.1 again kicked P.W.1 and said "You'd better buy yourself a coffin. After 1st April I'll hit you down."

3. The magistrate found that these words were said, that they constituted a threat to injure P.W.1. and that they were intended to alarm him and did so. Particularly as the threat was accompanied by a physical assault.

4. Mr. Macrae has put forward a number of grounds of appeal. The first was that the evidence of P.W.1 about his previous relationship with D.1, cast doubts on D.1's reliability as a worker and on the quality of his workmanship. It was said that this was irrelevant and prejudicial.

5. I do not think that it is any more than part of the narrative which explains how P.W.1 and D.1 had met and the relationship which 1ay behind the assaults and threats on the evening in question. There is nothing in the magistrate's Statement of Findings that suggests that he played the slightest attention to that part of the evidence.

6. The second ground is that, during his evidence-in-chief, P.W.1 implied that D.1 had previously been convicted of a criminal offence.

7. During his evidence, P.W.1 had said -

"Defendant said to me 'You'd better buy yourself a coffin. After 1st April I'll hit you down'."

8. The magistrate thereupon asked P.W.1 to confirm the date, as he was not sure that he had heard it correctly. P.W.1 then volunteered this explanation -

"I was scared. he was on suspended sentence - that is why he said - after 1st April."

9. Counsel, who was appearing at the trial on behalf of D.1 (not the counsel who appeared in the appeal), took instructions from his client and asked for a re-trial, on the ground that P.W.1 had disclosed that D.1 had been convicted before and was under a suspended sentence.

10. It is difficult to see why counsel put his submission in this way because he should have ascertained from his client what was the true position, namely that D.1 had been bound over for twelve months in the sum of $300 to keep the peace and that no conviction had been recorded against him.

11. The magistrate, however, proceeded on the basis that there had been a suspended sentence imposed on D.1, but nevertheless decided to exercise his discretion to continue. It is not challenged that a discretion does reside in a magistrate to continue the trial notwithstanding that there has been an accidental disclosure of a previous conviction.

12. An appellate court should be slow to interfere with the exercise by a magistrate of his discretion in circumstances such as these. However, Mr. Macrae has suggested that the magistrate exercised his discretion on wrong reasons, in particular that he was wrong to assume that the fact of the previous conviction, as it then appeared to be, would necessarily emerge in a retrial because of the reference to 'lst April'.

13. This is very much a matter of guess work of course, but it seems to me that, as a matter of common sense, had the matter been retried, another magistrate would probably have probed the reference to a date.

14. It was also suggested that, as this was early in a trial, it would have been simple to stop it and to order a retrial. It was open to the magistrate to do that, but he had a discretion to continue and he exercised it in that manner.

15. Nor can it be seriously suggested that the continuation of the trial resulted in substantial prejudice to D.1, since it emerged before the end of the trial that there had been no previous conviction and no suspended sentence.

16. The only other ground advanced on behalf of D.1 was that, during the re-examination of P.W.1, there was a reference to D.1's girlfriend having telephoned to P.W.1 about the incident.

17. That evidence should not have been elicited from the witness, since it did not arise out of cross-examination. Nevertheless it is difficult to see what prejudice it could have caused because, although the witness said D.1's girlfriend spoke to him, he was not allowed, quite rightly, to give any evidence as to what she said.

18. Therefore, that passage in the evidence cannot have any effect whatever on the result.

19. I find no grounds on which this conviction could be upset and the appeal is accordingly dismissed.