HKSAR v. LARM TAT MING

HCMA1123/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1123 OF 2007

(ON APPEAL FROM KCCC 3778 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Ronald Cheung at Kowloon City Magistrates’ Court on 23 October last year on a charge of criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, Cap. 200.  The appellant has abandoned his appeal against sentence. 

2. The charge alleged that the appellant :

“	On the 17th day of March, 2007 at ‘Sunshine’ Cyber Café, 2nd Floor, Hang Hau Village No. 4A, Ting Wo Lane, Tseung Kwan O had threatened Ching Man Wa with injury to her person, with intent to alarm her.”

3. The magistrate’s findings as to the facts that provide the background to the charge are not challenged.

4. Miss Ching Man Wa (PW1) (“Miss Ching”) was a cashier in a cyber café in Hang Hau Village in Tseung Kwan O.  On 15 March 2007, there was an incident at the cyber café during which someone broke the glass door of the premises.  Miss Ching saw two males run out of the café immediately afterwards.  She said that one of the males had a harelip.  The learned magistrate made the following findings :

“

… I am sure that a report to the police was made on account of that incident and PW1 did give a witness statement to the police in relation thereto.  I am sure that the police did conduct an investigation into the matter.  I am sure that what PW1 saw and heard on 15 March 2007 would be of some significance in the police investigation and it was a possible case of criminal damage.  I am sure that by 17 March 2007, the account of the glass door incident that PW1 had already given or she might further provide to the police would have a bearing on the identification of the culprit.  I am sure that on 17 March 2007, when PW1 went downstairs to dump garbage, she saw 2 males one of which said to her “stand there” loudly.  I am sure that about 5 minutes later, the Defendant came up to the cyber café with another male.  Side by side they stood facing PW1 at a close distance.  The Defendant pointed at PW1 and said something to PW1 aloud in an aggressive manner.  The utterance made by the Defendant was as PW2 had so described in Court ( i.e. ‘Be careful! Don’t recognize the wrong person.  He is not the one who did that.  It is the one with hare lip who did that.  Otherwise you will not have a good time! 你小心D呀!唔好認錯!唔係佢做架，係崩咀個個做架!你唔好認錯!係崩咀個個做架!你小心D呀!如果唔係你都唔會好過!’).  After making the utterance, the Defendant left with the other male.”

5. The magistrate went on to find that the words uttered by the defendant were not what McMullin J in Lo Tong Kai v. The Queen, [1977] HKLR 193 referred to as “wild and whirling words” and did amount to a threat and were so regarded by Miss Ching, and that the threat was of injury to her person.  He found that the threat uttered by the appellant was made with intent to alarm Miss Ching.

6. The sole ground of appeal is that the learned magistrate erred in law in that he failed to properly consider the defence case, namely that the appellant’s motive was a relevant factor in considering whether or not he was guilty of the charge. 

7. This ground of appeal arises because the learned magistrate accepted that it was at least a reasonable possibility that the appellant had uttered the threat in the belief that Miss Ching might otherwise implicate someone as being responsible for the breaking of the glass door whom he believed to be innocent.  The magistrate found that such a belief was irrelevant if the appellant had threatened injury to the person of Miss Ching.

8. Mr Boyton for the appellant has argued that the magistrate was wrong the disregard to motivation of the appellant.

9. He puts his argument in two ways :

(1)	He suggests that the words “without reasonable excuse” should be implied into section 24 of the Crimes Ordinance, Cap. 200.
(2)	He argues that that motivation is a valid consideration in assessing whether the appellant threatened injury to the person of Miss Ching, rather than was simply suggesting that she would be troubled by her conscience.

10. Insofar as the first limb of his argument is concerned, I find no substance in such an argument, nor do I find that the judgment of McMullin J in Lo Tong Kai v. The Queen [1977] HKLR 193, cited to me by Mr Boyton lends it any support.  If such a construction was accepted it would result in a position that there were situations in which the ends justified the means.  I am satisfied that that was not the intention of the legislature in enacting section 24 of the Crimes Ordinance.  Section 24 makes it a criminal offence for a person to threaten another person with injury to his person, reputation or property with any of the intents referred to in subparagraphs (i), (ii) or (iii).  The motivation of the person making such a threat with any of such intents is irrelevant to the question of guilt.

11. If authority is needed for such a proposition, it is found in the judgment of Line DJ in HKSAR v. Pearce, Matt James, HCMA635/2006.

12. In his written submissions and argument, Mr Boyton referred to two situations where a court would be obliged to convict a defendant if the construction put forward by him was not accepted.

13. One situation was where a police officer informed an individual obstructing the highway that if he did not move he would be arrested.  Another was when a parent threatened a naughty child with corporal punishment.

14. Insofar as the examples are concerned, Mr Boyton ignores the fact that the “injury” to the person, reputation or property referred to in section 24 must be a legal injury, in other words a violation or infringement of a person’s right that causes him harm and is actionable at law.  The police officer and the parent in his examples would not commit an offence if the consequences that they threatened did not amount to a legal wrong.

15. Insofar as the second limb of Mr Boyton’s argument is concerned, I find it also has no substance.  There is nothing to suggest that the magistrate had not taken into account all the circumstances including the defendant’s motivation, when considering whether what the appellant had said was a threat and whether it was a threat of injury to the person of Miss Ching. 

16. The magistrate said this :

“

41.

I am sure that it was a threat of injury to the person of PW1.  It is fanciful to suggest that the Defendant’s utterance was merely a gentle persuasion appealing to PW1’s conscience.  It matters not that the Defendant did it in the belief that PW1 might otherwise nominate the wrong person as the culprit in the glass door incident (I am prepared to accept this to be at least a reasonable possibility).  It matters not that the Defendant’s motive in issuing the threat was to exculpate someone whom the Defendant believed to be innocent in relation to the glass door incident (I am also prepared to accept this to be at least a reasonable possibility).  It is a threat of injury to the person of PW1 nonetheless.

17. The magistrate made it clear that it was only after he had found that the appellant “did it”, in other words threatened injury to the person of Miss Ching, that he regarded motive as irrelevant for the purpose of deciding guilt.  I share the view of the magistrate that it was indeed fanciful to suggest that the words which the magistrate found the appellant to have uttered were an appeal to Miss Ching’s conscience, particularly in view of the fact, as Mr Boyton accepts, that he had found that the words were uttered in an aggressive manner.

18. I dismiss the appeal.