HKSAR v. CHAN TAK KUEN

HCMA 1160/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1160 OF 2000

(ON APPEAL FROM ESCC 3110 OF 2000)

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J U D G M E N T

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Introduction:

1. The Appellant was convicted after trial of two charges of criminal intimidation, contrary to section 24(b)(i) of the Crimes Ordinance, Cap 200. He now appeals against his conviction and sentence.

2. The facts as found by the learned trial magistrate are as follows. The Appellant was a part-time employee of a debt collection firm in Macau. On 10 January 2000, he and two of his colleagues escorted PW1's son home to recover a gambling debt of $2 million incurred in Macau. The Appellant and his group said that if the debt was not repaid they would do something disadvantageous to PW1 and his family (the first charge). The tone of the demand was ferocious. The son acknowledged the debt and begged his family for help. The matter was not resolved there and then and the Appellant's group left after an hour. There were further phone calls from the Appellant and his group on the next day. On 12 January 2000, the Appellant and his group visited PW1 and took him out for a talk in a café during which the threats were renewed, but the Appellant was not charged in respect of the threats made on that occasion. On 15 January 2000, the Appellant and his group came again and had conversation with PW1 through the gate during which the threats were repeated and accompanied by foul language (the second charge). On 23 January 2000, someone poured petrol around PW1's front door and hung a pig's lung up on the gate, and later on in the day red paint was poured on the gate of his shop as well. The Appellant was not in Hong Kong on that day and was not charged in respect of the incident on 23 January 2000.

3. Mr Cheng SC advanced seven grounds of appeal. The first three could conveniently be dealt with together. Mr Cheng SC submitted that the learned magistrate erred in law in admitting evidence in relation to the events of 23 January 2000 as being irrelevant, not part of the res gestae and not admissible under the 'similar fact' rule. In essence, he said that the events on 23 January 2000 could not have assisted the prosecution's case as to the nature of the alleged criminal intimidation on 10 and 15 January 2000, which was the threat of "doing something disadvantageous to PW1 and his family." He submitted in the alternative that the learned magistrate should have ruled the evidence inadmissible because the prejudicial effect far outweighed any probative value. Mr Cheng SC submitted that the learned magistrate's attention had not been drawn to the recent decision in Secretary for Justice v Lam Tat Ming & Another, [2000] 2 HKLRD 431, in which the Court of Final Appeal held that the test of admissibility of evidence is one of fairness to the accused.

4. I do not think there is much substance in these three grounds of appeal. The events on 23 January 2000 are clearly relevant. In my view, the learned magistrate has approached the issue with realism, common sense and robustness and was correct in ruling that the events on 10, 15 and 23 were all linked to one another and were relevant. He was entitled to conclude that the events on 23 January 2000 were part of the Appellant's joint enterprise and had strong probative value, notwithstanding any prejudice to the Appellant. The learned magistrate has been extremely careful in assessing the probative value and the prejudice and has constantly reminded himself that the Appellant was not in Hong Kong on 23 January 2000. I do not think it was unfair to admit such evidence.

5. On his fourth ground, Mr Cheng SC submitted that nothing was said as to what the disadvantageous acts threatened were and there was no nexus between those threats and the pouring of petrol and red paint and the hanging of the pig's lung, especially as the Appellant was not in Hong Kong on that day. Be that as it may, part of the magistrate's function is to apply his common sense and his knowledge of the society in his fact finding process. As criminal activities become more organised and sophisticated, a magistrate should take a realistic approach appropriate to the circumstances. The Appellant and his group escorted PW1's son home seeking to collect a debt. They had an hour's discussion with PW1 and on the magistrate's finding uttered the threats complained of. A threat does not cease to be a threat merely because it is subtle. In my view, it was open to the magistrate to find in the circumstances and in particular the events on 23 January 2000 that the words "something disadvantageous to PW1 and his family", without further particularity, constitute a sufficient threat of injury to the person of PW1 and his family.

6. The main thrust of Mr Cheng SC's fifth ground of appeal is that the learned magistrate failed to make a specific finding of fact that when making the threat the Appellant intended to cause alarm which is a crucial element of the offence of criminal intimidation. He referred to the following time honoured dicta of McMullin J in Lo Tong-kai v. The Queen, [1977] HKLR 193 at 196:

"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.'

........ 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."

7. Mr Cheng SC next referred me to the case of R v Chan Kai Hing, [1997] 3 HKC in which the appellant debt collector threatened to burn down the victim's house if the debt was not repaid. After referring to the above dicta, Patrick Chan J, as he then was, allowed the appeal and held:

"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 above, 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."

8. Mr Cheng SC submitted that whilst the learned magistrate rejected the evidence of the Appellant, he made no finding at all, both in his oral reasons at the time of verdict or in his Statement of Findings as to whether he was satisfied, beyond reasonable doubt, that there was an intention on the part of the Appellant to cause alarm to PW1.

9. He cited the case of HKSAR v Yau Yu Ming, Magistracy Appeal No. 437 of 1999, which he sought to rely heavily upon. In that case, the appellant threatened to chop the victim and to burn down his premises if he did not repay a sum of money his son owed. After referring to the two cases cited above, Deputy Judge Tong, as he then was, held:

"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."

Mr Cheng SC submitted that in Yau Yu Ming, there was a finding by the magistrate that the appellant in that case intended to cause alarm but the appeal was allowed as it was unclear whether the magistrate had evaluated the evidence in the light of the Lo Tong Kai and Chan Kai Hing. Hence, in the present case, Mr Cheng SC submitted, the convictions were all the more unsafe and unsatisfactory, where the learned magistrate had not even made a finding of intent to cause alarm.

10. Counsel for the respondent, Ms Ko, had also represented the Respondent in Yau Yu Ming. She did not seek to argue that the learned magistrate had made any finding that the Appellant did intend to cause alarm. In fact she could not. The best she could rely on is the following passage said by the learned magistrate when convicting the Appellant:

"It is proved, in my view, that he was there as a party to what was happening and that he played a full part; and what was happening was to threaten PW1 in the manner that is alleged in order to enforce the payment of this very large sum of money. The element of each of these charges is proved and he is guilty of the criminal intimidation that is alleged and must be convicted."

I do not think the "cover-all" formula that each and every element of these charges is proved as used by the learned magistrate adequate.

11. Section 24(a)(i) of the Crimes Ordinance provides that a person is guilty of the offence if he threatens any other person with one of the three intents specified in the section. The intent under the section that was particularised in the charge is the intent to alarm PW1. This is a specific intent which the prosecution must prove. It is not enough to prove that an accused intended to utter the threat but prosecution must prove in addition that when he uttered the threat he did so with the intent to alarm the person to whom the threat was made. In my view, where specific intent is one of the elements of the offence, it is always desirable, though not absolutely essential, that a magistrate should make a finding about this crucial element. It would be sufficient if he has addressed his mind to this element and there is sufficient evidence in support of such a finding.

12. The intent under section 24(a)(i) has to be proved in the same way as specific intent has to be proved in any other offences involving specific intent, such as wounding contrary to section 17 of the Offence Against the Person Ordinance, Cap 212 or murder. Sometimes, intent is proved by admission, but more usually, it is proved by inference to be drawn from the surrounding circumstances, particularly the acts of the accused. When an accused chops a victim, the intent to wound contrary to section 19 could be readily drawn. The specific intent to cause grievous bodily harm contrary to section 17 could also be drawn from the weapon used, the injury inflicted and what was said at the time of the wounding. For criminal intimidation, the actus reus is the utterance of a threat and not the doing of an overt act. What is in the mind of a speaker is not as apparent as what is in the mind of a person doing an act. That is where McMullin J's dicta is most pertinent. In deciding whether when the threats were uttered the Appellant intended to cause alarm to PW1, the context of the circumstances out of which the threat has arisen is of paramount importance. The context of the circumstances on 10 January 2000 as found by the learned magistrate was that the Appellant uttered the threat with a ferocious tone. On 15 January 2000, the Appellant's group used foul language and knocked on the door. There were of course the telephone calls and the visit on 12 January 2000 in between and the ghastly events on 23 January 2000. It is not clear if the learned magistrate had indeed come to the conclusion that when the threats were uttered, the Appellant intended to cause alarm and how on those facts he had come to that conclusion. On the contrary, it appears from his oral reasons delivered at the time of verdict that he did not have in mind the issue of intent to alarm. He said:

"Such debts are not legally enforceable, of course, at least not here in Hong Kong, but it does not automatically follow that the collection of these debts will be backed up by threats. The question is whether the evidence of PW1 proves that there were threats."

It appears that his concern was whether the threats were made and that he had not addressed his mind to the question of intent to alarm.

13. Mr Cheng SC submitted that the threats uttered were unspecific and less alarming than those uttered by the appellants in Chan Kai Hing and Yau Yu Ming. He submitted that the learned magistrate had not considered whether the words used were "wild and whirling words" or how he came to a finding that they were uttered with intent to alarm. On the evidence, it is not clear how these words came to be spoken, except that they were spoken. Little was known about what happened during the one hour when the Appellant was in PW1's premises when the threats were uttered. These words could have been spoken with intent to cause alarm because the tone was ferocious. But given the circumstances that the Appellant came to collect a genuine debt, the utterance and its tone might be interpreted to mean nothing but to add force to the demand. It could perhaps mean or might have been intended by the Appellant to mean some nuisance or embarrassment. But as against that, some adverse inference could be drawn from the events of 23 January 2000. For my part, I think if the learned magistrate had properly directed his mind to the issue of intent, he could probably, though not he would necessarily, find the threats were uttered with intent to alarm. However, unfortunately, it appears that the learned magistrate had not so addressed his mind to the legal principles as stated in Lo Tong Kai. With great reluctance, I consider the convictions unsafe and unsatisfactory. This also disposes of the seventh ground of appeal.

14. I do not consider it necessary to deal with the Appellant's sixth ground of appeal which is basically an appeal against the magistrate's finding of fact. I consider the learned magistrate has evaluated the evidence properly and there is no merit on this ground of appeal.

15. In the circumstances, the appeal is allowed with the convictions and sentences set aside. Ms Ko did not wish to seek an order for re-trial.