THE QUEEN v. CHAN KA FAI

IN TH SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY C CRIMINAL APPEAL No. 1044 OF 1989

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BETWEEN

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J U D G M E N T

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1. The Appellant was found guilty on a charge of Criminal Intimidation contrary to Section 24(a) of the Crimes Ordinance, Cap. 200 and was sentenced to imprisonment for 12 months.

2. He has appealed against both conviction and sentence. I have just delivered judgment in which I have dismissed the appeal against conviction and the facts of the matter are set out in the written judgment which I have just handed down in respect of that appeal.

3. The learned magistrate was of the view that a custodial sentence was necessary. I agree that, in order to mark the gravity of the offence, a custodial sentence is required but there are a number of facts in this case which persuaded me that a term of 12 months is manifestly excessive.

4. In the first place, there was no pre-meditation, no attempt to influence the witnesses at any time before the Appellant saw them conferring together before the trial and conferring together within the precincts of the court room in which the trial was to take place. Bearing in mind the previous incident at the Small Claim Tribunal when the solicitor witness tried to influence the Appellant against acting on the advice of his insurance representative. It is understandable that he might suspect that the same witness was trying to influence the other witnesses. Reprehensible as his conduct was, and Mr. Mullick, who has argued this appeal on his behalf, concedes that on any view his conduct must be so described, it was that scene which triggered off the reaction to utter the threats which led to the laying of this charge on which has been convicted.

5. The threats themselves were more than "Wild and whirling words", as the learned magistrate found, but they were nonetneless not much more than that, otherwise the witness who heard everything said to the solicitor would surely have remembered the gist of the threat more perfectly than he remembered verbatim the bragging references the Appellant made to himself and the provocatively belittling references he made to the solicitor.

6. It is also understandable that that conduct on the part of the Appellant produced an angry reaction from the solicitor. It is, however, in my view likely that that anger on the part of the solicitor had the effect of building a mountain of fear from the molehill which existed before the onset of anger.

7. There is no doubt that the solicitor felt enough fear to report the matter and to encourage the other witnesses to make a report with him. There is also the fact that the Appellant eventually pleaded guilty to the careless driving charge.

8. The suddenness of the threat and the Appellant's subsequent conduct indicate that he probably had no real intention of carrying out the threats.

9. I think that in those circumstances, grave as the offence was for the reasons which the magistrate explained, did not warrant a sentence of imprisonment for 12 months. I think that a sentence which is commensurate with the gravity of the offence and which takes into account the circumstances under which it was committed is imprisonment for 3 months suspended for two years.

10. The Appellant has had the experience of two weeks in custody. He was released on bail pending this appeal and I think he has learnt a lesson as a result or this experience.

11. I will make an allowance for that by substituting a sentence of imprisonment for two months suspended for two years.

12. I allow the appeal against sentence to that extent.