HKSAR v. LO KWOK LAM

HCMA155/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.155 OF 2001

(ON APPEAL FROM NKCC 5322 OF 2000)

----------------------

-----------------------

----------------------

J U D G M E N T

----------------------

1. The appellant was convicted of three charges, one of criminal intimidation and two of claiming to be a member of a triad society. He now appeals only against the conviction on the 1st charge of criminal intimidation and the only ground of appeal advanced on his behalf by Mr Chan is that the Magistrate never considered whether the ingredient of the offence, namely, with an intent to alarm the victim, was ever made out and that the Magistrate never made any finding of fact in respect thereto.

2. The circumstances of the offence are that the appellant was an inmate at Lai Chi Kok Reception Centre, and the victim was a Correctional Services Department ("CSD") officer. The evidence of the victim was that he had not allowed the appellant to go out from the cell where he was kept, as a result of which the appellant swore at him, claimed to be a member of the Wo Shing Wo Triad Society and said to the victim that he would beat up the victim at the entrance gate on a day in the following week when he had to attend court.

3. The Magistrate accepted the victim as an honest and credible witness and rejected the evidence of the appellant. Apart from the Statement of Findings when he listed out the charge, the magistrate never referred to the ingredient of with an intent to alarm the victim. In two separate places, in his Reasons for Verdict, he mentioned that the victim was, in fact, alarmed by what was said to him by the appellant. But as Mr Chan says sometimes a victim can be alarmed even if the defendant never intended that the victim should be alarmed, and that may be because, for instance, the victim has a fairly weak personality and gets alarmed at a matter which another person might not be alarmed with.

4. Mr Man, for the respondent, has submitted that, in the circumstances of this case, when the appellant uttered those words, he must have intended to alarm the victim, otherwise, why should he even bother to say those words, and Mr Man submits that the case is quite different from the other cases quoted by counsel for the appellant, for instance, Lo Tong-kai v. R [1977] HKLR 193, where the appellant was the owner of the shop and had an argument with an employee of the shop who was acting on the instructions of the appellant's wife. In that case, McMullin J considered that the possibility of the words being "just wild and whirling words" had to be considered. In the other case quoted by counsel, HKSAR v. Yau Yu Ming, HCMA437 of 1999, Tong DJ (as he then was) said :

"I do not suggest for one moment that in every case involving this offence, the trial Magistrate must specifically make a finding that the threat was not just angry words."

and in R v. Chan Kai-hing [1997] 3 HKC 575, P. Chan J (as he then was) said :

"In the normal event, I do not rule out that such utterance would have been or could have been uttered with intent to cause alarm. Given the circumstances of the case, since they came to collect a genuine debt, the utterance might be interpreted to mean something to add force to the demand. However, I do not think I should look at that alone."

and the appeal was allowed because, apparently, the magistrate, after conviction, had made certain comments which were inconsistent with his findings on the case.

5. In the instant case, I do not agree with Mr Man that the circumstances were such that when the utterance was made, the appellant must have intended to alarm the victim. A distinct possibility is that, because of the refusal of his request by the victim, the appellant was very angry and, therefore, said those words, not necessarily with the intent to alarm the victim.

6. In this case, I consider that it was incumbent on the magistrate to have considered whether the evidence was sufficient to prove that the appellant did have the intent to alarm the victim when he made the utterance, and I consider that the magistrate should have, at least, made a finding in this respect. In the absence of such consideration and in the absence of such a finding, I allow the appeal against conviction on the 1st Charge. Leave is given to the appellant to withdraw his appeal against conviction on Charges Two and Three.

Appeal against sentence

7. The appellant also appeals against the sentence. He was sentenced on the original 1st Charge to 12 months and on each of the following 2nd and 3rd Charges, also to 12 months concurrent, but the 12 months on the 3rd Charge had three months to be served consecutively to the 1st and 2nd Charges, making a total of 15 months. Mr Chan has submitted that the starting point of 12 months was too high in the circumstances and that the total sentence of 15 months is excessive.

8. I agree with Mr Man that when prisoners in detention criminally intimidate or claim to members of the CSD staff that they are members of a triad society, that is an aggravating factor. It is an aggravating factor because it may alarm the officers concerned and it may cause incalculable difficulties for the CSD to try and enforce discipline in the prisons if the prisoners are not deterred from doing such things.

9. In the present case, I do not take the view that the 12 months starting point adopted by the magistrate was too excessive or wrong in principle. The two offences were committed on different dates and the two utterances were made to two different officers. In theory, the two sentences could be made, wholly or partly, consecutive. However, in view of the fact that the 1st Charge of criminal intimidation has now been quashed, I will allow the appeal to the extent that the two sentences of 12 months originally imposed on these two charges will be served concurrently.