HKSAR v. LEE YUNG NGAI

HCMA 177/2021

[2022] HKCFI 895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 177 OF 2021

(ON APPEAL FROM ESCC 2812 OF 2019)

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trial of one count of criminal intimidation and one count of blackmail. After the learned Magistrate obtained psychological and background reports, he sentenced the Appellant to 10 months’ imprisonment.

2.  The Appellant appeals against both his conviction and sentence. 

3.  At the conclusion of the hearing on appeal, this Court had allowed his appeal against conviction and therefore, his sentence was also quashed.  The following are my reasons.

Prosecution’s evidence

4.  The Appellant, a young man aged 25, a social worker, met the complainant (“PW1”) on an online app in October 2019.  They then started a “love affair” for about 2 months.  It transpired that PW1 wanted to end the relationship while the Appellant did not wish to do so. 

5.  PW1 gave evidence that on one occasion during a sexual encounter, the Appellant had taken some photographs and a video.  She had claimed that she had given the photographs and video to the police.  However, nonewere produced at the trial nor was any explanation forthcoming from the prosecution as to why they were notproduced or whether PW1 did indeed submit the alleged photographs and video to the police.

6.  Without repeating all the details in the case, it was apparent that PW1, although wanting to break off her relationship with the Appellant, was not particularly adamant in doing so.  In fact, in the course of her evidence, she disclosed that the day before she reported the matter to the police, she had voluntarily met the Appellant in a mini-hotel for over an hour.  As the photographs taken from a CCTV camera in the hotel showed[1] they were kissing each other before they departed.

7.  Also in the course of her evidence, PW1 did agree that she and the Appellant would often say things to each other without meaning it and also she admitted that she continued to communicate with the Appellant even after his arrest. 

Magistrate’s findings

8.  The Appellant did not give evidence at the trial, and the learned Magistrate found on the evidence given by PW1 that the Appellant intended to intimidate PW1 and he had threatened to post her nude photos online which “must be a threat that would overcome the ordinary free will of a firm person”[2].

9.  The learned Magistrate also found that the Appellant made a demand with a view to gain for himself and threatened PW1 as a result of such demand, and that such demand was unwarranted.

10.  After conviction, the learned Magistrate received a letter from PW1 entitled “mitigation letter”.  The letter was also sent to the defence and in that letter, PW1 said:

“平日有爭執時，我與他習慣會說刺激對方的說話，為的是令對方感到憤怒。但這些話都是些氣話，帶情緒的話，大家都不是當真的。回想起來，我相信事發當日他並非存心威嚇我和勒索金錢…”

“When we had quarrels, he was used to say things to anger others, to make the other side angry. But these are all angry words, emotional words, no one would take it seriously. Thinking back, I believe that on the days of the offence he did not intend to threaten me and blackmail me for money…”

(English translation submitted by the Appellant)

11.  Having received the letter, the defence rightly went before the learned Magistrate and applied for a review pursuant to section 104 of the Magistrates Ordinance, Cap 227, but that was declined by the learned Magistrate and the defence also applied for PW1 to be recalled to be cross-examined on the letter, and that was also refused by the learned Magistrate.  

12.  The learned Magistrate gave as his reason that the letter written by PW1 was entitled “mitigation letter”, and therefore whatever she said in the letter must be “considered under this preamble”.  And that nowhere in the letter did she say that she was overturning her evidence.  And that the letter merely contained her own belief, her own opinion in the matter.[3]

Appeal

13.  In his submission, Mr Cheng SC correctly submitted that the letter of PW1 calls into question whether the Appellant had the requisite mens rea in relation to the two offences.  The test to be applied in an application to adduce fresh evidence after the close of the prosecution case, is whether it is in the interests of justice to do so.  Therefore, when the learned Magistrate refused to do so, it was a material procedural irregularity.  And the Appellant was thus deprived of a fair trial.     

14.  In her reply, Ms Ng had submitted that the crux of the case was whether the Appellant had the necessary intent, and what was expressed in the letter of PW1 was merely stating her belief as to what the Appellant’s intention were.  Therefore, the learned Magistrate was correct in not allowing PW1 to be recalled as it does not affect his findings in the case.

Discussion

15.  I do not agree with Ms Ng because at the end of the day, the crucial principle is that the Appellant should receive a fair trial, and whether the interest of justice would be served by recalling PW1 to be cross-examined. 

16.  I am well aware that for a layperson to write a letter, she may not be as precise in the language she used as a letter written by a lawyer.  Therefore, what she had said in the letter did generate many questions as to what actually transpired between her and the Appellant, and why she believed that what the Appellant said to her resulting in the two criminal charges were not intentional.  Her additional evidence may have been material in determining the intent of the Appellant.

17.  At the end of the day, I found that the conviction of the Appellant was therefore unsafe and unsatisfactory. 

18.  Therefore, I allowed the appeal against conviction and quashed the sentence.