HKSAR v. IP YUI KEUNG

HCMA 320/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 320 OF 2009

(ON APPEAL FROM KTCC 382 of 2009)

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J U D G M E N T

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1.  On 20 March 2009 the Appellant was convicted after trial of three charges:-

(1)   1^st Charge – claiming to be a member of a triad society contrary to section 20(2) of the Societies Ordinance, Chapter 151, Laws of Hong Kong;

(2)   2^nd Charge – assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Chapter 212, Laws of Hong Kong;

(3)   3^rd Charge – Criminal Intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, Chapter 200, Laws of Hong Kong.

2.  The Appellant was sentenced to a total terms of 15 months imprisonment.  However it is only against the convictions on the three charges that the Appellant appeals, he having through his solicitors on 16 September 2009 filed notice of abandonment of appeal against sentence.

3.  Having heard arguments in relation to the appeal against conviction on 17 September 2009, I reserved my ruling indicating that I would hand down my judgment at a later date.  I do so now.

4.  The facts of this case as recounted by PW1, the victim, were in brief this.  PW1 was a minibus driver operating the route between Nathan Road and Castle Peak Road.  At about 12:30 a.m. on 11 November 2008, PW1 was picking up passengers.  Another minibus driven by a person who the learned Magistrate had no difficulty in finding to be the Appellant, drove his bus behind that of PW1 and signalled to him to pull up.  PW1 did so and both drivers alighted.  The Appellant swore at PW1 and accused him of taking away his passengers.  PW1 said it was a misunderstanding and apologised.  The Appellant then declared himself to be from Shing Wo.  This was admitted under section 65C Criminal Procedure Ordinance, to be a triad society.  These were the facts relating to the first charge.

5.  Immediately following this, the Appellant received a call on his mobile phone and he told PW1 that he would get someone to come over.  Shortly afterwards a man came out and attacked PW1 resulting in injuries to the upper parts of his body and leg.  PW1 felt that two persons were assaulting him (Charge 2).  PW1 felt dizzy and sat on the ground.  Someone said to him that if he made a report to the police or continued to drive a public light bus, he would get someone to chop PW1 (Charge 3).

6.  It was also included in the admitted facts that PW1 attended an identification parade on 16 December 2008 and positively identified the Appellant as being the person who beat him at the time and location in question.

7.  The Appellant did not give evidence in the lower court, nor did he call any witnesses to testify on his behalf.  However defence counsel sought to rely on the exculpatory parts of a mixed cautioned statement that the Appellant had made and which was admitted as being part of the prosecution case.  In that statement, whilst admitting his presence at the scene and that he worked as a public light bus driver at the time and place in question he sought to place the blame on PW1 indicating that when he, the Appellant was queuing up to do business, PW1 suddenly came up from behind and pulled abreast of him.  PW1 scolded him in foul language and told him that he would be waiting for him at the bus terminus.  After the Appellant had driven off, PW1’s bus suddenly appeared and cut across the Appellant’s vehicle.  Both men alighted from their respective vehicles and argued when suddenly an unknown man came from nowhere and beat PW1 with fists.  PW1 fell to the ground and was bleeding, so the Appellant stated that he went to his bus to get some napkins and helped to clean the blood from PW1’s face.  He stated that he did not beat PW1 nor did he claim to be a member of a triad society.

8.  In his re-amended perfected grounds of appeal, Mr Ross, on behalf of the Appellant relies on two grounds:-

(1)       Charge 3 “The Appellant was convicted of Charge 3 though the Applicant was charged to have personally intimidated PW1 when PW1’s evidence was that PW1 could not tell if the Applicant personally intimidated him.”

(2)       All Charges “The learned Magistrate erred in convicting the Appellant on all charges by accepting the evidence of PW1 and an inculpatory part of the Appellant is cautioned statement to police, P4, without taking into account the exculpatory parts which can exonerate him.”

9.  Dealing firstly with the first ground of appeal that relates only to Charge 3.  It is important that this particular offence is not looked at in isolation to Charge 2.  Charge 2 is an offence of assault occasioning actual bodily harm in which it is alleged that the Appellant together with a male not in custody assaulted PW1 the victim.  This assault on PW1 immediately preceded the threat being the subject-mater of Charge 3, i.e. that if PW1 drove his minibus again, he would get someone to assault him or chop him up.

10.  The learned Magistrate in his reasons for verdict found that the unknown male was arranged by the Appellant and that they were embarking on a joint-enterprise to assault and threaten PW1.  Having accepted the evidence of PW1, he was perfectly entitled to so find.

11.  What the learned Magistrate failed to do however, as he was obliged to, was to amend Charge 3 to include the fact that this offence charged the Appellant together with an unknown male.  Mr Ross on behalf of the Appellant argues that for this court to so amend Charge 3 at this late stage would cause prejudice to the Applicant.  I see no such prejudice to the Appellant.

12.  Magistracy Appeals are appeals by way of re-hearing which essentially place the court in the position of the Magistrate who heard the original trial.  Moreover, section 27 of the Magistrates Ordinance, Chapter 227 places a mandatory duty on the Magistrate to amend the particulars of the charge where it appears to him that there be a variance between the complaint and the evidence adduced in support of that complaint.  It is clear to me that the failure of the learned Magistrate to amend Charge 3 in the terms that I have stated above is merely an oversight.  Charge 3 will be amended and accordingly ground 1 fails.

13.  Dealing with ground 2 which relates to all three charges and essentially complains that the learned Magistrate accepted the inculpatory parts of the Appellant’s cautioned statement and rejected the exculpatory parts, this is completely misconceived.

14.  It is quite clear from a reading of the learned Magistrate’s statement of findings that he did consider the whole of exhibit P4, the cautioned statement of the Appellant.  He also indicated which parts of it he accepted and which parts he did not.  He was entitled to do so.  Ground 2 fails.

15.  The appeal against convictions on all three charges stand dismissed.  For the sake of clarity, Charge 3 is amended to include the fact that the Appellant “together with another person unknown” threatened etc etc…

16.  The appeal against the sentences imposed is dismissed on the filing of notice of abandonment dated 16 September 2009.