LO TONG-KAI v. THE QUEEN

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JUDGMENT

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1. The appellant was convicted of criminal intimidation contrary to section 24(a)(1) of the Crimes Ordinance and received a sentence of three months' imprisonment suspended for one year. He now appeals against conviction and sentence.

2. It is common ground that the appellant is the registered proprietor of a number of sports shops in the Colony and that a prolonged marital upset between himself and his wife has existed as a result of which she had managed to introduce into the shop in Lyndhurst Terrace a number of employees who regarded themselves as being her employees rather than those of her husband. The complainant on the present charge, a girl of 17 years, was one of those employees. The complainant had for some time prior to these events also been the mistress of the eldest son of the appellant. She told the court that on the 8th of November 1976 the appellant came to the shop at 4.30 p.m. and asked the employees therein to write down their telephone numbers. She advised them not to do so and, according to her, he used some filthy language to her and then went away taking two bags of some unspecified goods with him. She said that she had been instructed by the wife of the appellant not to let him take goods from the shop. This first incident is referred to only by the appellant and neither of the other two employees who were called to give evidence mentions such a thing having occurred. The incident which is the subject of the present complaint occurred at about 7.00 p.m. According to the complainant, the appellant returned once again to the shop. She and the two other employees were then having an evening meal. The appellant said that he wanted to take away some sports shirts from the shop but he was prevented from doing so by one of the employees apparently upon instructions received from the wife of the appellant through the complainant. The defendant then became very angry and, according to the complainant, threw a bowl of rice upon the floor although, according to the second prosecution witness, he merely tried to do so and, according to the third prosecution witness, what happened was that he threw some suits of clothing on the ground asking "Why am I not allowed to take the goods. I am the boss here." Upon being told that he was being prevented upon the instructions of his wife he used words which were variously reported but which included the threat to go and chop his wife in pieces. Some time after this - about half an hour according to one of the witnesses - he left and as he left he uttered the words which are the substance of the present charge. These words were directed at the complainant and were to the effect that he would stab her to death or, according to one of the witnesses, that he would beat her to death. She said that she was very afraid on hearing this and one of the other witnesses said that she turned pale and appeared to be afraid. The employees after their meal then reported to the wife and later the same day went and made a report to the police station. The appellant was arrested and charged with the present offence.

3. Mr. Sanguinetti has taken a number of points upon the appeal. It is said that the learned magistrate erred in law in that he approached the question of guilt or innocence on the basis of which of the two stories, that given by the prosecution or that given by the defence, was to be believed. There have been several cases recently before this court in which this very matter has been debated. It is unnecessary however to refer to those cases or the various authorities cited therein for I am satisfied that the written judgment of the learned magistrate is not to be faulted upon this ground. The opening phrase of that judgment is in the following terms:

"I see no reason to doubt the evidence of P.W. 1 that she was abused by the defendant ..."

Later on he said:

"In all the circumstances I do not believe the defendant. I do believe the prosecution witnesses."

Mr. Sanguinetti has relied upon this latter phrase principally in support of the contention that what the magistrate was doing was to balance one story against the other. Even where a magistrate has employed terminology of that kind and even where he has said that he prefers one story to the other it will not by any means always follow that that is a sure indication of the application of the wrong standard of proof. Reading the reasons given by the magistrate as a whole I am satisfied that he kept it in mind that what he had to do was to find whether the prosecution witnesses satisfied him beyond reasonable doubt.

4. Then it is said that the learned magistrate, in the course of the trial, showed that he had already come to a conclusion that the prosecution had proved its case. An alternative to this ground was that he, the magistrate, by what he had done had thrown the burden of proof upon the appellant. What happened was that the appellant was called upon to make his defence and after a certain number of questions had been put to him by his lawyer concerning the background which had led up to the affair the magistrate seems to have felt that questions were being unnecessarily asked about peripheral matters which did not touch the central issue before him. What he then said was as follows:

"I had tried several times to get the defendant's solicitor to confine himself to the issue of Criminal Intimidation but have failed. I am adjourning this case to 18.1.77 at 10.00 a.m. when Mr. Fan can have the entire day to introduce all the red herrings he can think of and perhaps put forward some reply to the case proved by the Prosecution."

It must be said at once, and the Crown concedes the point, that this was a rather unfortunate observation. I think it is more important in another connection to which I shall come shortly, but, on the basis of the particular objection which I am now considering, I can only say that I do not think that this passage can be said to show that the magistrate had already at that stage of the proceedings closed his mind and formed the opinion of guilt. Admittedly the word "proved" is used but in all the circumstances I do not believe that is to be interpreted as meaning that the magistrate at that stage regarded the case as proved beyond reasonable doubt. The note, to which I have referred, betrays some degree of exasperation and was no doubt scribbled in some haste, but I think it would be unreasonable to conclude from the use of the word "proved" alone that the magistrate was indicating that he had clearly closed his mind against the defence. After the adjournment the defendant was called once again and continued with his evidence.

5. The remaining grounds of appeal can I think be combined into one and they form the real and substantial cause of complaint. What the passage which I have quoted above seems to indicate is that the questions being put by the defendant's solicitor to the defendant to expose the background of the affair were irrelevant to the trial of the issue before the court. In view of the nature of the charge that was I think a fundamental error. What the prosecution must show upon a charge under section 24 of the Crimes Ordinance (a provision which is modelled closely upon section 503 of the Indian Appeal Code) is that the person making the threat intends to cause alarm to the person to whom the threat is made or that the threat itself is of such a kind that a person of ordinary firmness would be affected by it. In deciding these matters, as it seems to me, the context of the circumstances out of which the threat has arisen are of paramount importance to be considered. The test involves both objective and subjective considerations inasmuch as (to quote the commentry upon the Indian section which appears in the 22nd Edition of the Law of Crimes by Ratannal and Dhirajlal):

"The question whether a threat amounts to a criminal intimidation or not does not depend on the nerves of the individual threatened; if it is such a threat as may overcome the ordinary free will of a firm man, or whatever the nature of the threat, if it is made with the intention mentioned in the section, it is an offence."

It might be argued that this proposes a subjective test for the situation where the threat is not made in the presence of the person threatened and an objective test for the situation where it is uttered in his presence but I do not think that the section should be so nicely construed. Whether the words are uttered in the intended recipient's presence, or in his absence and reported to him later, or else not reported to him at all, in all cases of such utterance the questions of the intention with which the threat is made and of the effect which it has produced upon the person to whom it was made or would be likely to produce on a "firm man" are the relevant questions and they will fall to be determined by reference to the particular circumstances affecting both the persons involved at the particular time when the words were spoken. 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. In that regard details of family history and personal relationships may often be relevant and telling considerations. Perhaps, had he not regarded the background circumstances as a mere "red herring", the magistrate would nevertheless have come to the conclusion that the words uttered were not the fruit of a mere ebullition of rage, in regard to which the whole question of intention was largely irrelevant, but were in fact a threat of the kind calculated and intended to cause fear and likely to do so. I cannot however be sure that he would have come to the latter conclusion. Looked at from the level of an appellate court - not the ideal level to examine matters in which the impression created by witnesses is of paramount importance - there are certainly features of the evidence which would support the idea that the whole affair was something in the nature of a prolonged family squabble in which the swapping of bad-tempered language might be expected but scarcely upon a scale sufficient to justify the intrusion of criminal proceedings, Be that as it may I am left in doubt of the extent to which the surrounding circumstances were taken into consideration and for this reason I think it would be unsafe to sustain the conviction. The appeal is therefore allowed and the conviction and sentence are set aside.