THE QUEEN v. TAM YIU CHI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL CASE NO. 649 OF 1985

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BETWEEN

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JUDGMENT

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1. On the 22nd August 1985 I dismissed the appellants appeal against conviction of a charge of criminal intimidation and his sentence of six months imprisonment. I said that I would deliver my reasons later and I now do so.

2. The appellant was charged with criminal intimidation contrary to Section 24(b)(ii) of the Crimes Ordinance Cap. 200. The particulars of the charge read:-

"TAM Yiu-chi, you are charged that on the 28th day of January, 1985, at Kwai Chung, New Territories, Hong Kong, you did threaten LEUNG Chor-mei, with injury to the reputation of her daughter YUNG Wai-yee, with intent to cause LEUNG Chor-mei to do an act which she is not legally bound to do, namely, to indulge in an act of lewdness."

3. The victim was a 28 year old housewife. On the 7th December 1984 she reported to the Police details of a complaint made to her by her six year old daughter that she had been indecently assaulted. Particulars of the complaint were registered in the Police occurrence book at Princess Margaret Hospital.

4. On the 28th January 1985 the victim received several telephone calls from an anonymous man who said that he was aware of the indecent assault that had been committed on her daughter. He said that provided she met him for the purpose of performing sexual favours for him he would not divulge this information to her neighbours. He also threatened that she should not report the matter to the Police. The victim then arranged to meet the appellant the same evening at the Kwai Fong MTR Station after which she made a report to the Police. At the MTR Station the appellant approached the victim where he asked her to board a taxi and said that he would follow. Police officers in plain clothes who were keeping observation then arrested the appellant.

5. The victim testified that she recognized the appellant's voice as that of the caller on the telephone. When he was arrested the appellant had in his possession a note which contained the name, address and telephone number of the victim. The appellant did not give evidence.

6. Mr. Macrae who appeared for the appellant argued two grounds of appeal. First was it established that the appellant was the person who made the telephone calls and second did the facts amount to criminal intimidation.

7. The first ground must fail because the learned magistrate found as a fact that the victim had identified the voice to be that of the appellant.

8. Section 24(b)(ii) of the Crimes Ordinance defines intimidation in the following terms:-

''24.     Any person who threatens any other person -

                with intent in any such case -

                shall be guilty of an offence."

10. Mr. Macrae submitted that a relevant factor to be taken into consideration was the effect that the words uttered by the appellant had upon the victim. The victim's evidence was to the effect that the telephone calls only embarrassed her and were a nuisance. Mr. Macrae therefore contended that she was not alarmed. In my opinion the learned magistrate was entitled to draw an inference from the evidence that the threats made by the appellant did cause the victim mental anguish and distress. Such conduct was plainly intended by the appellant to frighten the victim and necessarily had that result.

11. Mr. Macrae submitted that injury to reputation must be proved and that publication of the facts would not amount to an illegal act. However, I do not accede to this submission. It is sufficient for the prosecution to establish that a threat was made and that if the threat is carried out injury will be caused to the reputation of any third person. There is no requirement to prove that the publication is an illegal act in the sense, that it is justiciable in the Courts. If an illegal act has been committed a charge may be preferred under Section 24(c) of the Crimes Ordinance.

12. By threatening to publicise the information of the indecent assault to the neighbours would undoubtedly injure the reputation of the victim's daughter. This fact is self evident.

13. In his admirable statement of findings the learned magistrate was entirely justified in finding the charge proved.

14. The appellant is a police Officer and although he is now only 20 years of age, I am satisfied that a custodial sentence was appropriate. In fact I consider he sentence errs if anything on the side of leniency.

15. The appeal against conviction and sentence is therefore dismissed.