THE QUEEN v. CHIU HON HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.65 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant pleaded not guilty to two charges : one alleged Common Assault and the other Criminal Intimidation.

2. The person alleged to have been the victim of the assault LI Shu pui (P.W.1) said that at about 3.15 p.m. on the day in question he went to an address in the Walled City in the course of his duties as an Executive Officer with the City District and new Territories Administration.He was accompanied by a fellow officer LAW Hing-lan (P.W.2) the person alleged to have been the subject of the threat which formed the basis of the Criminal Intimidation charge. The purpose of their visit was to find out from the lady doctor occupant of certain premises there when she would be vacating. She was not in and both withesses began to leave the building. The premises they had visited were on the third floor of the building.  When they were between the second and third floors on the way downstairs they were met by two man, one of who was the appellant. The appellant's companion, MA Chong ching (D.W. 2), asked why they were there and P.W.1 said that he had come to ask the lady doctor when she was moving out. D.W.2 said that the remaining people would not move out P.W.1 said he ignored the remark and continued on his way with P.W. 2.   The appellant and D.W. 2 followed them and the appellant said to P.W. 2: "What are you talking with my tenant?" P.W. 1 said that he replies. that it was his colleagues responsibility and none of the appellant's business. The appellant began to use foul language in scolding P.W. 1 and followed P.W. 1 and P.W. 2 downstairs. There the appellant told them to stand still and said: " I will hit you", Followed by offensive language. P.W.1 said that ac turned and gave the appellant a rude sign by means of a hand gesture.  The appellant continued using foul language but P.W.1 and P.W.2 continued on their way. The appellant and another man followed them. When P.W 1 was passing through a park he was hit by a stone and when he turned to see where it had come from he saw a child point an accusing finger at the appellant and accuse him of throwing the stone. P.W.1 cotinued on his way but was eventually intercepted by the appellant who blocked his way pushed and abused him. He managed to run away from him.  He ran to a parked fire engine and persuaded the driver to drive him from the scene.

3. There was no re-examination after his cross-examination but the learned magistrate asked: "What was the trouble to which P.W. 1 replied: "He wanted more compensation".

4. The evidence of P.W. 2 was generally in agreement with that of P.W.1 regarding the appellant's hostile attitude and his assault of P.W.1 after P.W.1 was struck by the stone.   P.W.2, however, went on to give evidence regarding what happened after P.W.1 escaped as follows:

"[The appellant] said to us: Don't come here and every time I see you I will hit you.  If you come with police constable otherwise I will hit you.  He scolded government officers.  I was a bit frightened for fear I would be hit"

 

He was then asked lie why he was frightened and he replied:

 

"Because he said if you with police constable safe otherwise I will hit you and its impossible to come with police constable so I was frightened."

 

5. In cross-examination and re-examination he gave evidence as follows:

6. That was the evidence for the Prosecution.

7. The appellant's evidence was that he was a member of that Association on the day in question.  D.W. 2 told him to go upstairs to see what the two strangers were doing. P.W. 1 was a stranger to him but he had seen P.W.2 in the street without knowing who he was. He saw them knock on a door and then leave when the knock was not answered. Meeting them on the staircase he asked why they were there.  P.W. 1 said it was none of his business and made an indecent gesture.  D.W.2 asked the same question and also why P.W 1 had made a rude gesture to the appellant. P. W. 1 ignored them and continued on his way. As the two prosecution witnesses ware strangers and one had made an indecent gesture he and D.W.2 wanted to know why they had entered the Walled City so they followed them to the park area. There they gave up the pursuit and engaged in conversation with another person in the park for a while. After that they left the park and happened to meet the two prosecution witnesses again. Again he asked P.W 1 what he was doing in the Walled City and why he made a rude gesture. P.W.1 did not reply and walked off, He and D.W.2 managed to talk with P.W.2 who told them it was nothing but a misunderstanding.  He and D.W. 2 then left.  There was no pushing incident and no intimidating words were uttered.

8. D.W 2 s evidence confirmed the appellant's version of the incident.

9. The learned magistrate accepted the evidence that the appellant had pushed P.W. 1 and had threatened P.W 2 with injury with intent to alarm him. He convicted the appellant on both charges.

10. The appellant does not appeal against his conviction on the charge of Common Assault.   His Appeal as far as conviction is concerned. is confined to his conviction on the Criminal Intimidation charge. In his Appeal against that conviction he relies an four main grounds advanced by Mr. Sanguinetti who did not appear at the trial but had as his junior on the hearing of this Appeal Mr. Johnny J.H. Chan,  who represented the appellant at the trial.  The grounds read as follows:

11. The first ground relates to the answer given by P.W 1 to the learned magistrate's question at the end of P.W.1's cross-examination. It is true that the record does not show that either counsel was asked if he wished to ask any question arising out of the answer given to the learned magistrate's question. If the learned magistrate through oversight neglected to extend that invitation the appellant's counsel would surely have sought leave to as further questions if he had any instructions on the matter. He apparently did not because he did not raise the matter with the appellant when he gave evidence.  The appellant's denial of P.W.1 s assertion cave in answer to the last question asked by the Prosecutor in the appellant's cross examination. The appellant was asked if there were negotiations between the Government and his Association over the matter of compensation.   He agreed and then added as an apparent afterthought: I did not want more compensation. The learned magistrate did not resolve the credibility issue by reference to the question as to whether the appellant was seeking more compensation or not. The appellant agreed that there were negotiations over compensation. The fact that there were such negotiations indicated to the learned magistrate that the prosecution witnesses "would hot be strangers" to the appellant. The lack of an opportunity to cross-examine P.W.1 about his answer to the Court's question could have had no effect at all on the outcome of this case.

12. The second round relates to the following remarks made by the learned magistrate in his Statement of Findings:

        "4.    I was satisfied so that I was sure about it that:

Although P.W.1 had said that he had seen both the appellant and D2 before the incident and "had had dealing" with them Mr. Sanguinetti submitted that that did not necessarily mean that he had had meetings with them "face to face" so as to support a finding that there were "previous meetings" From the evidence of P.W. 1 the learner magistrate was entitled to conclude that if P. W.1 had seen both the appellant and D. W. 2 previously and had "dealing with them" that both must have known who he was and that he was about once he said that he was there to find out when the lady doctor would be leaving. That D.W. 2 knew was disclosed by his remark that "the people remaining would not move out".

The third ground relates to P.W. 2's evidence in chief ("I was a sit frightened..."), in cross-examination ("Q. Words were just abuse - outside Hong Kong Bank? A. Yes") and in re-examination ("Outside Hong Kong Bank you dog like officials......"). It is contended mat that evidence is conflicting and contradictory. As I read two evidence. however it seems tilde too witness was saying that words of abuse were uttered to the accompaniment of a threat of future injury. It was abusive to call them "dog like officials". It was threat of future injury to forecast that they would be hit if they had ho police protection. I do not think that the evidence is contradictory.

The fourth ground contends that The learned magistrate did not give sufficient consideration to the circumstances under witch the words were uttered. The gist of Mr. Sanguinetti's complaint under this ground was that the learned magistrate did not pay sufficient regard to P.W 1 s arrogant attitude, his hostility towards the Association of which the appellant was a member and the inbuilt hostility between the appellant and government officers given the battle lines they usually draw up in situations such as these. if a provocatively rude gesture is made by one of the antagonists towards the other, there is always the possibility that the other will react with "wild and whirling words" (R v LO Tong Kai [1977] HKLR 193 196) containing no meaningful threat at all.

I think that given the circumstances namely one officer being abused and assaulted to the extent that he sought the assistance of a fire engine to flee the scene and the other officer being threatened with assault if he returned without police protection, there was evidence from which the learned magistrate could find as he did that the appellant uttered the words "intending to alarm and so frighten off both P.W.1 and P.W.2".

13. I am therefore of the view that there is no oasis on which this conviction can no set aside. The appeal against conviction is accordingly dismissed.

14. The appellant also appeals against the sentence imposed in respect of each charge. On the Common Assault conviction the sentence was imprisonment for two months suspended for two years and a fine of $1,000. On the Criminal Intimidation conviction the sentence was imprisonment for 1 month consecutive suspended for two years and a fine of $1,000

15. Dealing with sentence the learned magistrate in his Statement of Findings said:

16. According to the charge sheet the appellant was 33 years of age on 24th July, 1990. His Criminal Record form shows one previous conviction for Fighting in a Public Place in 1975 for which he was fined $200. His date of firth on that form is shown as 18th November 1956. He appears to have had two daughters early and quickly and then just as quickly said "Enough!". Whatever the composition of his family his age, his previous record and his criminal behaviour in committing these offences did not in my view call for the imposition of prison sentences. Suspended sentences are appropriate only where imprisonment is an appropriate punishment As imprisonment was not an appropriate sentence in either case, the orders made for suspended sentences were wrong in principle.

17. I allow the Appeal to the extent that the imprisonment orders will be quashed but the orders in respect of fines and costs will stand.