HKSAR v. SO PUI WAH

HCMA1106/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1106/2005

(ON APPEAL FROM KCCC 3392 OF 2005)

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J U D G M E N T

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1. This is an appeal against a conviction for criminal intimidation.  The case arose out of an undercover operation where police officers were investigating an allegedly illegally run taxi rank. 

2. They had a police officer pose as a taxi driver, he was PW1 at the trial.  He drove to the taxi rank in question and pulled up.  His instructions, police instructions, were then to pull out of the queue and to go roughly adjacent to the head of it. 

3. The papers contained perfectly adequate summaries of the facts so I shall myself summarise by saying it was the prosecution’s case that three men approached, of which this Appellant was the second and that the Appellant said to PW1, “You’d better not pick up passengers here.  Fuck your mother if you pick up passenger here, I would smash your car.” 

4. Thereafter two other police officers posing as passengers got into the taxi, there was some further conversation but feeling that the scene might turn ugly, the undercover officer flashed his headlights, a pre-arranged signal for other officers to approach and arrest the men.  A station sergeant, who was PW4 was present and in charge of the operation.  PW1 pointed out the Appellant to the sergeant and repeated to him what had happened, using the words complained of.  The Appellant was arrested. 

5. The first ground of appeal says that the learned magistrate erred in admitting hearsay evidence and in relying upon the same in convicting the Appellant.

6. The complaint here is that by allowing PW1 to repeat the words used which were the substance of the offence in identifying the Appellant to the sergeant, the hearsay rule had been broken.  Of course, it had not been.  The purpose of the repetition of the words in question was not to use them in any way to prove the truth of what was therein asserted.  Those words were repeated in order to identify the Appellant as the man who had said them.  It is plain from the transcript that is the use that the magistrate made of the evidence and that, despite explaining that on more than one occasion to counsel making the objection below, the objection is still persisted in.  It is quite clear it was not hearsay.

7. The complaint that the magistrate “used” those words, arises because when PW4 came to give evidence he repeated what PW1 had told him and the magistrate compared the two, because what the sergeant said was slightly different.  He clearly did that as going to consistency: something potentially in favour of the Appellant.  He was in no way seeking to use the words in question testimonially.   There is nothing in ground one for hearsay.

8. Ground two reads that the learned magistrate erred in law when assessing the evidential value of the defendant’s prior mixed statement.  The magistrate said this at paragraph 23 of the statement of findings:

“I was also aware of the fact that the defendant made no admission in his record of interview.  What he said in the interview reflected his reaction upon being taxed by the allegation, the content of which was also consistent with his testimony in the witness-box.”

So in other words, the magistrate did lend his mind to the fact that the defendant’s immediate reaction had been consistent with his evidence in the trial and that the content of the record also matched the evidence.  In a case where the Appellant gave evidence in the trial, I cannot see what further the magistrate should or could have said.  I cannot see that there was any need for him to volunteer that the exculpatory parts of the record of interview fell to be considered as part of the evidence.

9. Ground three reads as follows:

“Failure to resolve material discrepancies between the evidence of prosecution witnesses was an error in law on the part of the magistrate.  Alternatively, failure to explain or adequately explain and/or resolve material discrepancies suggest that the conviction is unsafe and unsatisfactory.”

There were three areas of evidence investigated in this regard.  They were all dealt with by the magistrate: (1) if the words were loud and fierce, no one else mentioned it.  (2) was there a pulling of the door and (3) what was the order in which the men approached the car?  It seems to me that the way the magistrate dealt with them was sensible and consistent with common sense and not open to any real criticism. 

10. Looking at the transcript, one can see that the undercover officer, PW1, denied suggestions that the passengers were in his taxi when the three men approached and that the finding of fact by the magistrate that it was likely that the other witnesses were not in earshot is one that is perfectly capable of being made on the evidence that was given below.  In particular if one looks at page 97 of the bundle at letter F, PW1 clearly put the undercover officers posing as passengers getting into his taxi as occurring after the words had been said at his driver’s window.

(Discussion re transcript)

It is clear from the transcript that after the two men were in the taxi, there was further conversation about the lowering of the taxi window.  On my reading of the transcript at the time the words in question were uttered, that form the substance of the charge, they were not yet in the car.  The magistrate makes the point that in their evidence they said that they came to the car once the third man was already there.  It is clear from his findings and the relation of the evidence at paragraph 5 of his statement of findings, and the evidence in the transcript that the third man arrived after the words in question were uttered. 

11. As regards the point about who did see  and did not see the pulling of the door, PW1 said that it happened but PW4, standing away outside the taxi did not mention it.  The point really depends on how obvious it all was.  There is no evidence as to how long the pulling took and it appears that the door was not opened.  It is at page 97 of the bundle at letter N that the incident is described and all one can say is that to a witness standing away from the vehicle, all that would probably would have been visible is the Appellant having his hand on the door handle.

12. PW3, who was the man posing as a passenger who went and sat in the front of the taxi did not mention the pulling in his evidence-in-chief.  He had mentioned it in a statement and that was put to him by defence counsel.  It is the fact that he had someone else pulling the door and not the Appellant.  He explained that he had the names of the men mixed up at that time when he made the statement and that was an explanation the magistrate accepted, as he was entitled to do having seen and heard the witness.  Even so, this is something that happened after the words in question had been uttered and therefore does not impinge directly on the crucial issue.

13. As to the sequence of events, this concerned a police officer, PW5, who was tendered for cross-examination.  He had made a statement in which he said there were, one, two, three men there, and he gave them a number and a name.  He said that they, one after the other, approached the vehicle.  He had named the defendant first in the list of names.  It was suggested to him that therefore that was the order the men approached the vehicle.  With everyone’s agreement I have allowed in and seen the actual statement in question, and the words are certainly capable of meaning that.  The witness explained, however, that by naming and numbering the three men and saying that they walked to the taxi one after the other, he was not warranting the order in which they did so.  The magistrate accepted that.  It is also the case that PW5 was criticised because he could not remember having shown a certain document in the case to one of the men that he had interviewed. 

14. All I need say about this involvement of PW5 is that it seems to me the highest the defence could put it was to say, “Ignore the evidence of PW5.”  If one ignores his evidence, the evidence establishing the offence is still there and I cannot see how PW5’s shortcomings, if any, impinge upon the real issue in the case.  There are bound to be discrepancies when different people give evidence of an incident a substantial time later and the discrepancies pointed to here are not such as raise any reasonable doubt in my mind as to the correctness of the conviction.

15. Ground four reads as follows:

“In dismissing the Appellant’s testimony without any or any adequate reasons for doing so was an error or law.  Alternatively, failure to explain adequately or at all why (especially in the absence of any material discrepancy and in the absence of totally far fetched, illogical or irrational testimony) such evidence was dismissed without any or any adequate reasons for doing so indicates that the conviction was unsafe and unsatisfactory.”

At the centre of this case, as in so many other summary trials, was an issue in very short compass, which in effect amounted to assertion and counter assertion.  Did the complainant say the words complained of, or did he merely say words to the effect, “You are queue jumping, move on”, as he claimed?  It is not possible in circumstances like that to dissect and take apart the evidence given by the defendant.  However, there can have been no doubt that this Appellant left the court knowing why had had lost the case, which was because the magistrate believed PW1.  It is clear that mistake realistically was not on the cards here because all the witness had to do was to remember three very simple, very short sentences, for a relatively short amount of time before it could be committed to paper.

16. Realistically the issue was, has the police officer made it up against the Appellant?  Of course, police officers can invent cases, we all know that, but did he in this case?  The magistrate who saw and heard the witness came to the clear conclusion that he had not, that he was telling the truth.  No sufficient material point taken before me makes me have any doubt about that finding.  Once that finding was made it meant that the evidence of the defendant had to be rejected, because the two could not live together. 

17. What I have just said comes very clearly out of all that the magistrate wrote and I find there to be nothing in ground four.

18. Let me turn to ground five.  It reads: 

“The Magistrate erred in (a) placing any weight whatsoever on the evidence of PW4 given the state of his testimony, and (b) failed to address the contention - supported by events at trial- that the credibility, honesty & integrity of PW1 as a witness was tainted by his alleged collaboration with &/or coaching of PW4.  The conviction was thus unsafe and unsatisfactory.”

19. Two points were made here concerning the reliability of PW1.  The fact was that he had been unable in court at the trial to identify the defendant in the dock and say that he was the man because a substantial amount of time had gone by.  The argument of defence counsel was that because he could not do that I should have a doubt about his ability to remember those three short sentences.

20. The second point was that his failure at the scene for some half an hour or so to write down the defendant’s name, and at that stage only to get that information from a colleague and also not to record the identity card number, again, indicated that I should not trust him as being a reliable witness when it comes to remembering the three sentences in question.  All I need say is that neither of those points makes me doubt the reliability of the man on the crucial issue.

21. Also under this ground an attack was make on the integrity of PW4, the station sergeant.  This is because that he said he was looking away from the taxi at an important point of the story.  The suggestion by defence counsel was that this was simply not to be countenanced.  What the officer explained was this: at the time in question his colleague and he were standing by a traffic light making surveillance and they tried their best deliberately to pose as passers-by, that they were pretending to appear as friends talking to each other with the witness having his back to the taxi while the other man faced the taxi and kept an eye on it; that when the lights were flashed it was his colleague who saw the flash and of course immediately told him.  I am invited to find that this is incredible, or at least unrealistic and unreliable.  I have to say that it does not lead me to that conclusion at all.   

22. With this witness defence counsel came close to arguing, “Look, isn’t it suspicious, his evidence is like PW1’s, yet look at the differences from it?”  In particular, criticism was made of the fact that he could remember that when the identification was made, one man was standing in the road, one was standing on a pavement.  Once, via his notebook or whatever means, his attention was directed to the incident in question, I do not find it surprising that even after an elapse of time he was able to visualise the scene.  I find nothing in this ground.

23. Ground six suggests that the magistrate erred in his assessment of and his finding with respect to intent, the intent to alarm that has to be proved.  The words clearly bear their ordinary meaning: it was an order not to pick up passengers there, accompanied by a threat that if he did he would smash the taxi.  Those words were, on the face of it, intentionally spoken and what could be more alarming than saying those words to someone in these circumstances whom you had never met before?  The finding of fact that the words were uttered made inevitable the finding that, in these circumstances, there was an intention to alarm.

24. Ground seven claims there must be a lurking doubt here.  I disagree with that.  Points were made about identification, and the difference  the sequence that I have mentioned.  All I need say, is that in the clearest terms, PW1 identified the Appellant to the sergeant within a very, very short time of the incident occurring and he told him exactly what the man had done, identifying him as the speaker of the words.  I can see no reason to doubt that identification and find it good.  Not only that, it was the defendant’s evidence that he was the second man to approach the taxi.  It was the evidence of PW1 that it was the second man to approach the taxi who spoke the words in question.

25. I have dealt with the grounds of appeal that have been put before me.  I add, of course, that I am aware that the issue is at large and if on the material that I have before me, pursuant to the Magistrates’ Ordinance, I perceive any reason to have a reasonable doubt about the conviction, I would allow the appeal.  On the material before me and with the help of the magistrate’s assessment as to credibility, I am sure the prosecution discharged the burden upon them of proving this case beyond a reasonable doubt.

26. The appeal against conviction is therefore dismissed.

27. The sentence passed in this case was one of 6 months’ imprisonment.  The defendant was a man with a clear record, he is now 49 years of age and there was a background report that was a good one.  The magistrate determined that what was going on here was that the Appellant was engaged in seeing off competitors plying for trade at this particular taxi stand.  I share that view.  In particular, although it was not evidence in the trial, of course, and was not admissible when determining the appeal against conviction, what he said about taking passengers from illegal taxi stands to the probation officer in the probation report confirms the view that the nature of this stand was an illegal one.

28. I have inquired of the prosecutor whether these are isolated or whether there are relatively a number of them operating in Hong Kong, that is illegal taxi stands, and I am told that there are plenty of them.  That coincides with matters that this court has learnt from other sources and it is also to an extent confirmed by the fact that on the very night in question other people, two of them, were arrested at this same taxi stand for this same offence.  Those two defendants were dealt with by a different magistrate and both were sentenced to one months’ imprisonment.

29. The magistrate in this case took the view that there had to be an immediate custodial sentence because using threats like this in order to stop people exercising their right to ply for trade wherever they lawfully could was something that should be deterred.  I agree with that assessment of the seriousness of this sort of conduct in these sort of circumstances.  However, when it comes to looking at the length of the sentence for a man of this age with a clear record, I come to a different view from that held by the magistrate.  I do not say that he is wrong, I just say that my view is different.  In our system, my view comes later and it is the one that prevails.

30. In sentencing the Appellant here, the court has to strike a balance between acknowledging those things which can be said on his behalf in mitigation, which Mr Surman has summarised in his written submissions and I am not going to repeat them all, and the public good of deterring conduct such as I have described.  The message has to be that this sort of conduct will be met with imprisonment.  It cannot be thought that you can act like this and hope for a fine or a suspended sentence.  I take on board what has been said in mitigation about the effect of immediate imprisonment upon a man like this and balancing the factors as I have to do here, I come to the same conclusion that the magistrate did who dealt with the other people arrested on this particular evening, and I shall pass a sentence of one months’ imprisonment.  The appeal is allowed to that extent against sentence.

31. I shall add I have taken into account considerable delay that has occurred in the case.  The arrest took place on 2 September 2004, the file was only sent to the Department of Justice for advice on 26 January 2005 and the advice was not received and/or acted upon, I am not quite sure which, until 10 May 2005.  It was a very simple case and that timetable remains effectively unexplained before me. 

32. The overall result is that the sentence now is of one months’ imprisonment.