R. v. CHAN KAI HING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.364 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial of one count of criminal intimidation. He was a debt collector. He went with another colleague to the home of PW2 to collect a debt which was admittedly owed by PW2 to a bank.

2. It was alleged that at the door of PW2's home, the appellant had an exchange with PW2's father. At a later stage, PW2 who was cooking in the kitchen came out and had a discussion with the appellant and his colleague. An argument ensued. It was alleged that the appellant had uttered a threat to PW2, namely, if PW2 did not repay, then the appellant would burn down the house.

3. The appellant's case was that it was a lawful debt collection exercise. There was some dispute but no utterance as alleged.

4. The learned magistrate reminded himself that the appellant has a clear record. On the other hand, PW2 had a previous conviction. However, having considered the evidence, he accepted PW2's evidence and was satisfied beyond doubt that the appellant had committed the offence.

5. It was argued before me by Counsel for the appellant that the learned magistrate was not clear as to the importance of the issue of credibility. I think it was basically that at one stage the learned magistrate regarded credibility as the essential issue whereas at another stage he regarded it as merely important. With respect, I do not think there is any substance in this argument. These are only different ways to lay emphasis on the same issue. I do not think the learned magistrate can be criticised for that.

6. Another point made by Counsel for the appellant was that the learned Magistrate had relied too heavily on the demeanour of the witnesses instead of looking for inherent improbabilities in the evidence. It was submitted in the written grounds of submission that the striking improbability was that here we have two unarmed persons facing two armed people, one with a chopper and the other one with a nail gun, and yet the appellant was alleged to have uttered such threats.

7. I am not sure I would agree with that submission. The learned magistrate did remind himself that the prosecution witness has a previous conviction whereas the appellant has a clear record. However, the matter should not end there. A person with a previous conviction is not necessarily lying and a person with a clear record is not necessarily telling the truth. Further, I do not think I can agree that there is an inherent improbability in the fact that PW2 was armed while the appellant was not and therefore PW2 must be telling a lie. One of course has to look at all the circumstances. It appears that PW2 had just come out of the kitchen. The appellant was with a colleague and the evidence seems to be that the two had surrounded PW2 and there were some heated arguments. As it turned out, PW2 said in evidence that when he was arguing with the appellant, he was not aware that he had a chopper and he had no intention of making use of it.

8. The additional ground however does cause me some concern and that is, it was submitted that the learned magistrate had failed to consider, even if the words alleged had been said by the appellant, whether or not those words were merely wild and whirling words uttered in exasperation and signified nothing more than an instinctive outburst of spleen.

9. Counsel very helpfully drew my attention to the case of R. v. Lo Tong Kai, Cri.App. No.178 of 1977 in which McMullin, J. said at p.196 :

"... To my mind therefore it was of the greatest importance that the court should have considered whether the words used were 'wild and whirling words' uttered in exasperation by a man driven beyond the point of endurance by opposition offered to him in his legitimate rights as owner of premises, and signifying nothing more than an instinctive outburst of spleen, or whether they were uttered with a genuine intention of causing fear or were, in the circumstances of their utterance, likely to produce that effect."

10. Looking at the circumstances, here we have two people, including the appellant, coming to the home of PW2 to collect a debt and during the argument, it was alleged that such utterance was made. 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. This is because of certain comments which were made by the learned magistrate in the course of the trial albeit after the conviction of the appellant. They were made immediately after his brief reasons for conviction and during the course of mitigation. At p.54, the learned magistrate said :

"... I can just indicate from the facts, which I accept, it clearly indicates ... an illustration where these comments were said, as I find, in the heat of the moment, that there was no premeditation when he went around there to make these threats and that ... the defendant had got into ... argument with PW1, that it escalated and that these words were said, as I say, in the heat of the moment."

A little while later, at p.56, the learned magistrate said when he sentenced the appellant :

"... And having seen PW2 in the witness box this morning it could perhaps be said that you were a little bit provoked by your argument with him, and I accept that your threats were probably empty threats, even though I find that at the time you did make them you did make them with the intent of alarming PW2."

11. What he said was rather inconsistent. Faced with such comments made by the learned magistrate immediately after his conviction and shortly before and during sentence, I cannot help but think that it was not quite clear whether in fact the learned magistrate had in mind the case of Lo Tong Kai, and the issue whether there was any intent to threaten when the utterances were made or whether those utterances were made in the heat of the moment without an intention to cause alarm.

12. Having looked at the facts of this case, I must say I have a lurking doubt as to whether the conviction was safe or satisfactory. In the circumstances, I would give the benefit of the doubt to the appellant. I would allow the appeal, quash the conviction and set aside the sentence.