HKSAR v. CHAN SIU PING

HCMA 770/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 770 OF 2000

(ON APPEAL FROM SKCC745/2000)

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J U D G M E N T

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1. The defendant was convicted on his plea of guilty and admission of facts of one charge of criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance. On 14 July 2000, after considering his background report, the magistrate, Mr Ronald Cheung, sentenced him to 6 months imprisonment. He immediately applied for review and after hearing the review on the same day, the magistrate affirmed his sentence. Against that sentence the defendant now appeals.

2. The victim, a woman aged 41, had been working on a casino ship as a chip-girl. She used to obtain gambling chips from the defendant, who is a staff member of the ship, for her customers. In December 1999, the victim started working for another casino ship. On 7 March 2000, the defendant and a Mr Wong had a meeting with the victim. During this meeting, the defendant threatened the victim not to work in any casino ship or he would throw her overboard into the high sea. The victim was scared and reported to the police. A second taped meeting was arranged on 9 March 2000. At that meeting, the defendant repeated his demand that the victim shall not work in any casino ship but did not repeat his threat of throwing her overboard into the high sea.

3. At the review, the defendant was represented by a different counsel who alluded to the transcript of the second meeting, which had not hitherto been referred to. After hearing counsel, the magistrate considered that the defendant had kept up his pressure on the victim and held that the threat had continued and not dissipated during the second meeting. He referred to two occasions recorded on pages 12 and 17 of the transcript when the defendant mentioned "killing someone". Mr Fung, who now represents the defendant, took serious issue about that finding. He submitted that the magistrate erred in taking the reference to "killing someone" out of the proper context. It may be convenient to deal with this complaint first.

4. After reading the transcript, I agree with Mr Fung that the defendant used "killing" as an example that it was not enough for the victim to apologise. At page 12, when the victim offered to apologise, the defendant said:

"Sometimes you do something, it is not okay for you just to say sorry. If I have killed someone, is it okay for me to tell the judge that I didn't know that at the moment and apologise when attending court?

Again, at page 17, when the victim tried to excuse herself by saying she forgot to telephone the defendant and inform him about certain matters, the defendant responded:

"Hey! After I have killed someone, I say that it didn't occur to me that I would do so, is it alright? It is not."

5. The examples cited by the defendant were unfortunate. In my view, the defendant's references to "killing" were just as illustrations that an apology was not enough. Even though the references to "killing" were not as murderous as they were, they reiterated one point, i.e. that the demand was not negotiable: the victim may not work on any casino ship. To this extent, the magistrate was right to find that the defendant had not resiled from the demand.

6. In fact not only that the defendant had not resiled from the demand, the threat was still very much alive at the second meeting. Immediately following the conversation referred to above, the victim pleaded that it was impossible for her not to work on any casino ship. The conversation is as follows:

Victim: Regarding that you asked me not to board the ship, that is impossible. You know perfectly well that I .....

Defendant: Board it if it is impossible. I don't mean that you are definitely not allowed to board. Board it if you want to. I only want to ask you if it is correct. I told you not to board. But I can't help if you insist to board. Board it, just go on. You can even board now. Right?

Victim: If you say so, that means there isn't any room for discussion.

Defendant: Of course not.

Victim: You are impervious to reason to say so. Well, you said that you would go to my home and the like. So you are already, well, what can I say?

Chan: Did I go there?

Victim: No! Then, but you do so, I don't know whether you mean it or not.

Defendant: Well, I don't know either.

Victim: That's it.

Defendant: Well, you can try!

7. On the face, the defendant was not threatening the victim any harm to go on board, but in reality, the message received by the victim under the circumstances was a continuation of the threat. Fear is best felt than described. This is clearly shown when the victim asked if there was room for discussion and the defendant replied firmly there was no. The conversation also suggests that the defendant had said he would go to the victim's home to do something ("and the like"). The tone of the defendant's response is one of admission that he had said words to that effect. He left the victim in suspense as to whether he would or would not go to her home. He then told the victim to try. From this conversation there is every reason for the victim to think that the threat was still alive. Thus the magistrate's finding that the threat had continued and not dissipated during the meeting is therefore correct.

8. The defendant was not charged with the event at the second meeting. Whether the threat was continued or not is not important in that context. However the conversation at that meeting disclosed more about the first meeting and certain events that happened in between. For example, it disclosed that the defendant had said he would go to the victim's home to do certain things, and that in fact the defendant had looked for the victim at the pier and created some trouble. All these set the scene surrounding the first meeting and gave the victim the apprehension, irrespective whether the defendant intended to carry out his threat, his threat was to be taken seriously and was a real cause for alarm.

9. Mr Fung submitted that the victim and defendant were not mere colleagues but were friends and the defendant had lent the victim money. The defendant felt the victim had been ungrateful in luring customers away from his ship and the threat was uttered as wild and whirling words at the heat of the moment. Mr Fung submitted that the defendant never meant to carry out the threat.

10. The magistrate has fairly accepted that he could not be sure that the defendant had the intention to carry out the threat. He rightly held that the gravamen of the present offence was the issue of a death threat in circumstances which would certainly cause alarm. Looking at the objective circumstances, the victim worked on board a casino ship. She was told that she may not work on any casino ship. She was being deprived of her livelihood under the threat that if she did not comply, she would be thrown overboard into the high sea. She was alarmed and chose the lesser of the two evils to report to the police than to live with the threat. It is well known that gambling on the high sea is a very lucrative business. As the magistrate rightly pointed out, there is a good deal of organization and power behind such gambling operation; and that in the present case, the boss behind the scene was flexing his muscle through the the defendant.

11. It also appears from the transcript that apart from the threat something had occurred to reinforce the threat. At page 12, the victim said that the defendant need not have stirred up a big trouble looking for her at the pier. To that the defendant acknowledged what he did and responded as follows:

"Yes, looking for you, so what? Is it surprising? Is it correct? Since you didn't believe, I did that to show you since you didn't believe, is it correct?"

The defendant acknowledged creating some trouble for the victim by looking for her at the pier and he did so because the victim did not take his threat seriously. From this conversation and the other circumstances referred to above, it is clear that the defendant had done something to make the victim feel the threat will be carried out, irrespective whether he did intend to carry it out.

12. Bearing in mind the nature of the threat is one of death, that the victim worked on board a ship where the threat could be readily carried out, and all the circumstances, particularly what the defendant had done to make the victim feel that the threat will be carried out, I am satisfied that the magistrate has picked the correct starting point and dispensed the appropriate sentence. The appeal against sentence is accordingly dismissed.