HKSAR v. WONG CHI FAI AND ANOTHER

HCMA 702/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 702 OF 2001

(ON APPEAL FROM WSCC 4313/2001)

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JUDGMENT

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1. The two appellants, Wong Chi-fai (the 1st defendant at trial) and Hui Yu-keung (the 3rd defendant at trial) were convicted by Mr Paul Kelly, Permanent Magistrate, sitting at Western Magistracy, on 4 July 2001, of an offence of criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, cap. 200. On the same day, each appellant was sentenced to serve six months' imprisonment for their offence. They now appeal against both conviction and sentence.

2. The 2nd defendant at trial, a man called Tsang Tai-fat, was acquitted by the magistrate.

3. Both appellants were represented at trial, as they are on appeal, by Mr David Khosa, of counsel. Both appellants have criminal records. The 1st appellant has convictions for fighting in a public place, assault occasioning actual bodily harm, possession of dangerous drugs and criminal damage. The 2nd appellant has a criminal record for disorderly conduct, misleading a police officer by giving false information, doing an act intended to pervert the course of public justice and also careless driving.

4. The 1st appellant gave evidence at his trial, the 2nd appellant did not.

5. The facts of the case, briefly, are that on 15 March 2001, at around 6 pm, the two appellants and the 2nd defendant went to the victim's shop to dun for a debt that the victim allegedly owed the 2nd defendant. This was the second visit that the three of them had paid to the shop that. They had been there before at around 3 pm on the same errand and had been warned off by the police after the victim had made a complaint to the police. They had also visited the victim in his shop on the previous day. At the 6 pm visit, the 1st appellant, immediately upon entering the shop, said to the victim, "I am going to hit you." The 2nd appellant said, "After business tonight, I am going to hit you." Both spoke in a loud and threatening manner. The 2nd defendant was silent throughout. The victim called the police again and all three defendants were arrested.

6. There were two grounds of appeal pleaded. The second ground of appeal has been withdrawn. It related to the case of the 2nd appellant alone. It is not necessary for me to consider that ground of appeal.

7. The first ground of appeal is that the conviction of both appellants was wrong on a point of law in that the magistrate failed to consider, even if the threatening words were uttered by the appellants, whether or not they were merely 'wild and whirling'.

8. In R v Lo Tong-kai [1977] HKLR 193, at page 196, McMullin J held that:

"What the prosecution must show upon a charge under section 24 of the Crimes Ordinance 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."

He continued, later on at the same page:

"To my mind therefore it was of 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."

9. I agree with Mr Khosa that the magistrate made no specific finding that each appellant issued the threat he spoke with the intention of causing the victim alarm; and it certainly would have been better if he had done so. But this is not fatal to the conviction provided it is clear that no other conclusion could have been arrived at.

10. As Deputy Judge Tong (as he then was) said in HKSAR v Yau Yu-ming, Magistracy Appeal 437 of 1999 (unreported) a case relied on by Mr Khosa in the course of his argument:

"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."

11. From his statement of findings, delivered on conviction of the appellants, it is clear that the magistrate considered the surrounding circumstances and the effect the words would have had on a person of ordinary firmness. He considered the context of the demand for money; the fact that the claimed debt may or may not have been lawfully due; the two previous visits to the shop, on the same errand, paid by the appellants; the fact that having been warned to back off by the police only three hours previously they had returned to the shop; their motive for collecting the alleged debt; the aggressive and loud manner in which each appellant spoke the words; the effect of the words on the victim himself. And he specifically found that the victim was a man of reasonable fortitude.

12. In the circumstances the words uttered by the two appellants clearly were not "wild and whirling" ones. The appellants uttered the threat of violence to the victim immediately on walking through the door of the shop, it being the victim's evidence, which the magistrate accepted, that it was on entrance that the first thing the 1st appellant said was the threat and that there then followed the 2nd appellant's threat. There was no evidence of any conversation preceding the threats, indeed there was no evidence of any argument of any sort. Quite obviously, on the facts as found by the magistrate, the threats of violence were not uttered in exasperation by men driven beyond endurance. Neither were they, as McMullin J put it, "instinctive outbursts of spleen made in the heat of the moment." They said what they were going to do to the victim; the 2nd appellant even said when he was going to do it.

13. It is true that the magistrate later said in his statement of findings, delivered on conviction, that he could not exclude the possibility that the threats uttered by the appellants were 'impulsive'. But this remark was made in the context of his finding that there was no preconceived agreement between them and the 2nd defendant to issue threats. He was at that time, addressing the issue of whether or not the 2nd defendant had knowledge of the appellants' use of unlawful means to recover the debt.

14. I am, therefore, satisfied that in the context of the factual situation in this case as found by the magistrate - and there's been no allegation made before me that he misunderstood the evidence, or any criticism of his resolution of the matters of fact - that there is no other conclusion than that the two appellants' utterances were threats made with the intention of alarming the victim shopkeeper. The appellants' appeals against conviction are therefore dismissed.

15. Turning to their appeals against sentence; it is said that the sentences imposed on each were manifestly excessive and wrong in principle. That the starting point of six months' imprisonment was excessive in the circumstances, and that in deciding to impose an immediate custodial sentence the magistrate failed to give any, or insufficient, consideration to the nature of the offence and the circumstances preceding it.

16. This was an offence of organised bullying committed by two men, each of whom have previous convictions for offences of violence. Neither had any right or justification to utter the threats that he did. The debt allegedly owed by the victim to the 2nd defendant was the subject of ongoing litigation in the Court of First Instance. In a civilised society it is for the courts to sort out such disputes, not for one of the parties to resort to the bully-boy tactics that the appellants resorted to.

17. Both appellants are men now in their late 30's; they are not young persons. Neither had any mitigation. As the magistrate observed in his reasons for sentence, the maximum sentence for this offence is 2 years' imprisonment. Given the appellants' criminal records and the circumstances of commission of the offence, I do not find the sentences of six months' imprisonment, although high, to be so high as to be regarded as manifestly excessive. Both appellants' appeals against sentence are dismissed.