HKSAR v. YAU YU MING

HCMA437/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 437 OF 1999

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J U D G M E N T

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1. The appellant was charged with one count of criminal intimidation, contrary to s.24(a)(i) of the Crimes Ordinance, Cap.200, Laws of Hong Kong. The particulars of the offence stated that the appellant, together with another person Lo Pik Lee, on 21 January 1999, at 1/F, 281 Castle Peak Road, Sham Shui Po, Kowloon, in Hong Kong, threatened Ng Jee Pung with injury to his person, with intent to alarm the said Ng Jee Pung.

2. The appellant denied the charge and was convicted after trial. The sentence imposed was a suspended term of imprisonment and a fine. The appellant sought to appeal against the conviction but not the sentence.

3. At the trial of this case, the prosecution had called a total of three witnesses. The principal witness was PW1, and PW2 was one of his sons. PW3 was the police officer who attended the scene in answer to the report made by PW2. The exculpatory cautioned statement made by the appellant was placed before the court by consent. There was no particular issue on the identification of the appellant.

4. The prosecution's case was simply that on the date in question, the appellant and his co-defendant went to PW1's residence. That was the address as stated in the charge. They asked to see Ng Pui Keung who was another son of PW1. PW1 answered the door and through the closed iron grill, he had a conversation with the appellant. The appellant told PW1 that Ng Pui Keung owed him money. PW1 explained that his son was not in. Then in the further exchange between them, PW1 said that the appellant had threatened to chop him and to burn his premises.

5. PW2 over-heard the threat and made the report to the police. Subsequently the police officer, PW3, arrived at the scene and made the arrest after investigation.

6. The appellant and the co-defendant chose not to testify at the trial. However, their case as put in cross-examination was basically that there was no such threat made and actually the conversation between them had been a harmonious one.

7. Counsel for the appellant had raised a number of points in the grounds of appeal. Most of them related to questions of credibility and reliability of the prosecution witnesses. The learned Magistrate had succinctly covered such matters in his Statement of Findings. He had analysed the testimonies of the witnesses and dealt with the discrepancies. Finally, he came to the conclusion that the appellant had, on that occasion, made the utterances. The Magistrate stated that:

"Having carefully considered all the evidence before me and also the Defendant's case as put in cross-examination by Defence Counsel I found that D1 at the date and place set out in the charge did threaten Ng See Pung with injury to his person with intent to alarm him. I found every element of the offence proved beyond reasonable doubt and convicted D1 as charged. ...."

8. On the face of it, it was a perfectly clear case of factual finding and having heard the evidence, the learned Magistrate was fully entitled to have come to this view. On these matters, I accept the submissions by Counsel for the respondent who had prepared a very thorough written reply to the grounds raised by the appellant.

9. However, about the issue of whether there was an "intent to alarm", I have some concerned. In the case of R. v. Lo Tong Kai, Cri. App. No.178 of 1977, McMullin J. had this to say about the offence :

"... 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. This statement of law was expressly adopted in the case of R. v. Chan Kai Hing, MA No.364 of 1997. In this particular case, the appeal was allowed on a charge similar to the present appeal. It also involved a case of debt collection. The basis for overturning the conviction was in relation to certain remarks made by the trial Magistrate after the conviction, which seemed to have rendered the conviction equivocal. In his judgment, P. Chan J, as he then was, made the following observations:

" What he [the trial Magistrate] 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."

11. One important point emerged from these authorities. The "intent to cause alarm" is a distinct element of the offence of criminal intimidation. There may not be a genuine intent to cause alarm although the words used seemed threatening. The particular context and circumstances need to be considered.

12. In this regard, if the words found to have been said by the appellant at the time were just "wild and whirling words", uttered in exasperation, and signifying nothing more than an instinctive outburst of spleen, then those words may not constitute an "intent to cause alarm". The threat had to be made with a genuine intention to cause fear or that, in the circumstances of their utterances, it is likely to produce that effect. This has been the judicial interpretation of the element of "intent to alarm." I consider that I should apply the same principles in the present case.

13. However, it appeared that the learned Magistrate had not specifically addressed his mind to these considerations. There was a finding by the learned Magistrate that the appellant had threatened PW1 and he had explained why he believed the evidence of PW1. But it was unclear as to whether the Magistrate had, in finding that there was an intention to alarm, evaluated the evidence in light of the principles as stated in the abovementioned authorities.

14. It was true, as Counsel for the respondent had said, that Defence Counsel made no point about this issue during the trial. Nevertheless, in the mitigation, Counsel had indeed submitted that the threats were really "instinctive outburst", "wild and swearing words" and there was no genuine intention to cause fear. In the face of these submissions, unfortunately, the learned Magistrate had not articulated his views about what he had accepted or rejected. In fact he did not give any reasons in sentencing the appellant.

15. I have given anxious consideration to the arguments. In the end, having considered the authorities, and in the absence of any finding by the learned Magistrate that the threat was not just mere angry words and there was indeed a genuine intent to alarm, I am not completely satisfied that the conviction was a safe one.

16. I do not suggest for one moment that in every case involving this offence, the trial Magistrate must specifically make a finding that the threat was not just angry words. But in the present circumstances, had the learned Magistrate addressed his mind to this aspect, he could have reached a different conclusion.

17. In the circumstances, I will allow the appeal. The conviction is therefore quashed and the sentence shall be set aside.