HKSAR v. YAU CHIU MING

HCMA 72/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 72 OF 2003

(ON APPEAL FROM KCCC 2759/2001)

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J U D G M E N T

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1. This is an appeal against the conviction of the Appellant by a Magistrate, Anthony Kwok, Esquire, on a single charge of making persistent, annoying telephone calls during the period 5 to 17 June 2001. The offence is one contrary to s. 20(c) of the Summary Offences Ordinance, Cap. 228 and attracts a maximum penalty of a fine of $1,000.00 and two months imprisonment. The Appellant was convicted after trial and bound over in the sum of $1,000.00 for a period of 12 months.

2. The Appellant and the recipient of the telephone calls referred to in the charge, to whom I shall refer as a matter of convenience as PW1, are both medical officers. They were both employed at Kwong Wah Hospital, but in different departments. At the time of the events, they had not met. From the end of April 2001 PW1 began receiving frequent telephone calls on both his mobile and residential telephones. When the calls were answered, the maker did not speak. In May 2001, he reported the matter to the police and arranged for his residential telephone line to be monitored.

3. Most, but not all, of the offending telephone calls emanated from one of two telephone numbers, 91838565 or 26922262. The former number related to the Appellant's mobile telephone whilst the latter related to a telephone in his residence, albeit that he was not the registered subscriber. 39 calls were made from the Appellant's mobile telephone and 113 from the telephone in his residence to PW1's residential telephone: it appears that the Magistrate found it necessary to amend, without objection, the original dates reflected in the charge which had the effect of reducing the aggregate number of calls from 152 to 147 nothing turns on that. A computer record was produced by the second prosecution witness listing the calls made to PW1's telephone. The number of calls made ranged from one or two to some 40 per day.

4. None of this evidence was in dispute.

5. A list was circulated by Kwong Wah Hospital reflecting telephone numbers of staff members. PW1 noticed that the two numbers from which most of the nuisance calls had been received were those of the Appellant. In due course, the Appellant was arrested. Thereafter he made two statements to the police under caution. They were admitted in evidence and were correctly described by the Magistrate as "mixed" statements. The essence of the explanation for the making of calls given by the Appellant was that he had been responding to numerous messages left on his pager during the period mid-May to mid-June, during which various messages and names, including that of PW1, were left, as well as to numerous anonymous calls made to his residence. He theorized that PW1 had mounted a campaign against him as a result of erroneously regarding him as a competitor for the affections of a female. It was an agreed fact that the records relating to messages left on the Appellant's pager were no longer in existence.

6. The Magistrate expressed himself as satisfied that, based on the evidence before him, the only inference he could draw was that it was the Appellant who had made the annoying telephone calls to PW1 and convicted him.

7. There are two grounds set out in the Notice of Appeal although today the complaint about the Magistrate's approach was refined by Mr Bruce, SC., who now appears on his behalf. The two are effectively interwoven. The first is that the Magistrate erred in finding, by drawing that inference, that the prosecution had proved beyond reasonable doubt that the Appellant had made "all or substantially most" of the calls. The second ground is now articulated as a complaint that the Magistrate made use of the Appellant's failure to give evidence in a manner which was not a "legitimate" use as considered by Lord Hoffman, NPJ, in Li Defan & Anor. v HKSAR [2002] 1 HKLRD 527.

8. The Magistrate rejected the explanations given in the Appellant's statements. He gave cogent reasons for doing so. He noted that, despite the Appellant's claim that he had been the victim of a campaign of a similar nature, he had made no complaint to the police nor made any record of the calls. He expressed it as "strange to say the least" that the Appellant had persisted, as he claimed, in making an unspecified number of calls, all to no avail, in an attempt to contact PW1. The Appellant's suggestion that he made numerous unsuccessful attempts to contact PW1, whom he says was a stranger to him, and persisted in those attempts verges on the nonsensical.

9. A further feature of the Appellant's statements, upon which the Magistrate would have been justified in commenting, is that he does not deal with why it was that he attempted to make calls to PW1, in particular, when he says that he was responding to calls during which no-one identified themselves.

10. The Magistrate took into account in favour of the Appellant when considering the content of the statements that they were made by a man of previous good character. He later took that fact into account in favour of the Appellant in regard to propensity.

11. The Magistrate correctly rejected the explanation and the theory contained in the Appellant's statements. He focussed on the fact, and said so in terms, that the central issue was whether it was the Appellant who had made the telephone calls and that that was to be determined by reference to the question of whether he was able to draw the irresistible inference that it was the Appellant. He fully appreciated that he could convict the Appellant if, and only if, he was able to draw that inference. He reminded himself of the correct test to be applied: R v Kwan Ping-bong & Anor. [1979] HKLR 1 @ 5.

12. At the end of the day, and this was realistically accepted during argument, what the Magistrate was faced with was that the Appellant was the subscriber to a mobile telephone, as well as the occupant of premises where there was another telephone, from both of which had been made, to PW1's telephone number, an extraordinary number of calls during a short period, during each of which such calls nothing was said. In addition, there were the admissions by the Appellant in his statement of actually having made an unspecified number of calls during that same period, from those same telephones, to PW1's telephone number.

13. It is said that the Magistrate erred in "declining to consider the possibility that someone, other than the Appellant, might have access to the two telephones". This submission ignores the fact that what the Magistrate said was that there was simply no evidence before him to justify considering this scenario and that for him to do so would be pure speculation on his part.

14. Mr Bruce says that the Magistrate's failure to consider whether there was another person with access to both the telephones, results from flawed reasoning and is illustrated by his reference to the quotation he makes from R v Lo Siu-wing & Anor Cr App 509/1989.

15. To illustrate the extent to which the Magistrate would have had to speculate, although it was an agreed fact that the fixed line telephone was in premises occupied by the Appellant, there was nothing before the Magistrate to indicate whether those premises were also occupied by or accessible to any other person: if there were any substance in the Appellant's submission the Magistrate would first have had to speculate that the premises were occupied or visited by a person or persons in addition to the Appellant and then go on to speculate further that that unidentified person or one, or more, of those unidentified persons had made some or most of the calls, bearing in mind that the Appellant had admitted making an unspecified number of the calls. And then there would be the further speculation in which the Magistrate would have had to indulge concerning the access of others to the Appellant's mobile telephone. It is obviously noteworthy that not one but two telephones were involved in the calls.

16. Mr Bruce goes on to say that the failure to consider a commonsense possibility, that someone else had access to both of the Appellant's telephones, results in a mechanical and unrealistic approach to judging. In the context of this case, is that a commonsense possibility? I am unpersuaded that the mere fact that a person occupies a residence carries with it the corollary that others have access to a telephone within it or the mere fact that a person subscribes to a mobile telephone carries with it the corollary that others have access to that telephone.

17. This was one of several notions advanced by the Appellant at different stages. None was more than unsupported speculation. The Magistrate recognized this. This is all that he was saying in his Statement of Findings. Of course, if there had been even a simple agreed fact that the Appellant shared his residence with another or that another had access to both the telephone in the residence and the Appellant's mobile telephone, the position may have been very different. As it is, the Magistrate was entirely correct in his approach and in refusing to be drawn into speculation.

18. Mortimer, JA, in R v Chong Kin-cheong CACC196/1995 said this:

"As was his right, the applicant chose not to give evidence. This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge's task when considering the facts put before him to imagine possible defences of which there is no evidence. By the same token it is not his task - nor that of a jury - to speculate upon the absence of possible evidence. His duty was to try the case just on the evidence before him."

19. A number of matters were urged upon the Magistrate which he considered. Lack of motive was one: the only evidence was that PW1 was unaware of any motive, not that there was none. The childish nature of the offence taking into account the Appellant's profession and good character was another: the Magistrate was aware of, and specifically considered, these factors. The fact that other persons had contacted PW1 purportedly returning calls which he had made to them, which he says he had not made, was advanced as "corroboration" of the explanation given by the Appellant in his statement that he was simply returning calls made to him: the Magistrate was aware of those calls but obviously regarded them, as he was entitled to do, of little probative value or support for the Appellant's rejected explanation.

20. I would repeat what Mayo, VP, said in HKSAR v Chin Kin-ming & Ano. CACC540/1999:

"What is very clear is that the Judge carefully considered all of the evidence as a whole.

It needs to be borne in mind that it is peculiarly within the province of the Judge's duties to weigh and consider evidence and determine as a jury would whether it is right to draw inferences from the evidence which is available. It is also necessary to bear in mind the fact that the applicants did not give evidence which may contradict or call in question the prosecution evidence.

It has not been demonstrated that the Judge failed to consider any relevant matter or could be criticised for the conclusions he reached."

21. In my judgement, the Magistrate was entirely justified in drawing the inference he did. Not to have done so would have been an affront to commonsense.

22. Which leads into the second ground of appeal. Particular reference is made to p. 43 of the Appeal Bundle where the Magistrate says, immediately after quoting from Lo Siu-wing & Anor:

"The failure of the Defendant to give evidence is not of itself evidence of guilt but when all the evidence adduced by the prosecution was implicating the Defendant, he could have easily said who else was or might be using his telephone to call PW1 if that really was the case. This is the sort of case in which a not incredible explanation given by the accused in the witness box might have created a doubt. In the absence of such evidence, I should certainly not speculate about what evidence might be there and allow myself to be drawn into the speculation."

23. In effect Mr Bruce categorizes the Magistrate's reasoning as showing that he had used the Appellant's election not to give evidence as probative of his guilt and that this was not an exceptional matter where he could legitimately do so. The Perfected Grounds of Appeal refer to this aspect as the Magistrate reversing the burden of proof.

24. However, what the Magistrate says must be seen in the context of the Statement of Findings as a whole: firstly, the Magistrate had earlier specifically set out the effect of the Appellant's election not to testify. The Magistrate at p. 37 of the Appeal bundle gave himself an impeccable direction on the consequences of an accused's election not to testify. With the exception of some changes of tense, the direction was in identical terms to that set out by both Bokhary, PJ, and Lord Hoffman, NPJ, at pp. 530F and 532J respectively. No complaint is made about that; secondly, and perhaps more importantly, this passage followed upon his rejection of an invitation to indulge in the speculative exercise to which I have already referred.

25. Immediately prior to the passage on p. 43, the Magistrate said this:

"Mr Choy had urged me to consider the possibility that someone other than the Defendant might have access to the two telephones. However, my task here as a professional trier of fact is to decide the case on the evidence that has been placed before me and no more. To say that during the period, other than the Defendant, someone had or might have used the his [sic] mobile or residential telephone to call PW1 is highly speculative..."

26. In my judgement it is self-evident that all that the Magistrate was saying when dealing generally, but particularly at p. 43, with the Appellant's election not to testify, is simply that if there were an explanation the Appellant had elected not to make it known and that it was not up to him, in the absence of any evidence, to speculate about whether there was one or what it may have been. In doing so he was stating the obvious: it may have been superfluous but no more so than the question he asks at the end of the Statement of Findings, "Who would be the friend or relative of the Defendant who might or has used the telephones to call PW1?". Realistically no complaint is made of that, which Mr Bruce accepts was asked rhetorically.

27. This matter bears striking similarities to Li Defan in which the Court of Final Appeal upheld the conviction: after their arrest the appellants in that matter and this Appellant made statements to the police; those statements were of a "mixed" character; each exercised his recognised right not to give evidence or to call witnesses at the trial; the trial judge in Li Defan and the Magistrate in this matter considered the exculpatory content of the statements and, in each instance, rejected the explanations tendered; both the trial judge in Li Defan and the Magistrate passed the same observation, namely that an accused person who elected not to give evidence cannot complain if a proper inference is drawn, and drawn more readily as a result of his election.

28. Assistance is to be found in the words of Bokhary, PJ, at p. 530C:

"In the present case, we are concerned with a trial in the District Court and therefore trial by a judge alone. The appellants, as was their right, chose not to enter the witness-box. On my reading of the trial judge's reasons for verdict, the substance of his approach involved really no more than treating the prosecution's evidence as enjoying the advantage - for it must be an advantage - of not being undermined, contradicted or explained by any testimony from the appellants. That is unexceptionable on any view of the applicable principles."

29. Bokhary, PJ, then distinguishes between the position where a judge sits alone and where he sits with a jury and sets out the appropriate direction. He continues:

"Apart from its last sentence, everything in the standard direction is for the accused's protection. The last sentence goes towards dispelling any misconception that may otherwise arise that commonsense does not apply."

30. The Magistrate, an experienced professional judge sitting alone, unequivocally demonstrated, in terms explicitly approved in Li Defan, that he was fully aware of the use to which he was entitled to put the Appellant's decision not to give evidence. He did no more than he was entitled.

31. There is nothing to demonstrate that the Magistrate has, nor does he say he has, used the failure of the Appellant to give evidence as an element in the reasoning by which he either drew the inference he did or arrived at the finding of guilt. The Magistrate identified the real issue in this trial, directed himself fully and correctly in regard to the applicable considerations and came to a reasoned conclusion. He found, and this has not been challenged, that the telephone calls were made with the purpose of annoying PW1.

32. I confirm the conviction and dismiss the appeal.