THE QUEEN v. LO MAN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 118 OF 1993

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J U D G M E N T

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1. The appellant was convicted before a magistrate of a charge of criminal damage contrary to section 60(1) of the Crimes Ordinance, Cap. 200. He was sentenced to 6 months imprisonment, suspended for 2 years and ordered to pay $5,000 costs. He filed a notice of appeal against both conviction and sentence. The particulars of offence read :

“LO Man, you are charged that on the 5th day of August, 1992, at Flat 27B, Block 1, Fuk On Garden, Shatin, New Territories, in Hong Kong, without lawful excuse, you did damage the interior of the aforesaid premises belonging to LAM Chi-yuen, intending to damage such property or being reckless as to whether such property would be damaged.”

2. Initially, the appellant who was Dl was jointly charged with two other men, D2 and D3 respectively, in connection with this offence. D2 also faced a charge of being an office bearer of an unlawful society while D3 faced a charge of being a member of a triad society, both under the Societies Ordinance, Cap. 151. When the matter came before her, Magistrate Mrs. Majorie Chui granted an application for separate trial and ordered the trial of the appellant to be severed from D2 and D3 on the ground that D2 and D3 were charged with triad related offences arising from the same incident and prejudice might be caused to the appellant if he was jointly tried.

3. Subsequent to the order of Mrs. Chui, D2 and D3 appeared before another magistrate. D3 pleaded guilty and D2 who pleaded not guilty was convicted after trial. The appellant appeared before this same magistrate after the trial of D2 and after the guilty plea of D3. The appellant was tried and convicted.

4. The appellant was at the material times an employee of Wang On Engineering Company Limited which carried on the business of building construction and decoration work. The prosecution alleged that sometime in July 1992, Lam Chi-yuen, PW1, approached the company for an estimate of some minor repair work to a flat at the address as specified in the charge which PW1 was due to take possession. He spoke to the appellant who asked him to pay a fee of $200 for the preparation of the estimate. The appellant also told PW1 that if the work was to proceed, PW1 would have to pay a deposit of 30% of the cost at the outset and the balance to be paid on completion. PW1 paid the $200 as requested and was given exhibit P2. This document was dated 30 July 1992 and the cost quoted was $90,600.

5. On 3 August, PW1 telephoned the appellant and informed him that he did not accept the estimate. The appellant asked PW1 to come to his office to discuss the matter further but at the same time instructed Chu Ka-shing, PW2, to go to the flat to start work, the first stages of which involved substantial demolition and removal floors, skirting-boards, tiles and plastering.

6. During the next two days, PW1 visited, the flat and found out what happened. He tried to contact the appellant for an explanation but was unsuccessful. He went back to the premises the next day and told the workmen to stop work, which they did. The renovation was eventually completed. But PW1 had to ask the appellant’s company to do part of the work such as relaying of the flooring as he was unable to find anyone else to do it.

7. The appellant gave evidence and called one witness. His case was that this was a straightforward case of a construction or decoration contract. Exhibit P2 was an order to do the work and not a quotation. The company
was therefore entitled to carry out the work in accordance with the contract. It was PW1 who later changed his mind and tried to get out from his contractual obligation. It was also his case that the work done on the flat was not capable of amounting to “damage”. It was preparatory work in a renovation and decoration contract that would end up with the flat being improved. The appellant denied that the work was done on his instructions and said that it was one of his colleagues who ordered it to be done. Thus, if the work was not authorized, it was the responsibility of his employer or his colleague and it had nothing to do with him. He also insisted that he had no intention to cause criminal damage.

8. On the factual position, the learned magistrate accepted the evidence of PW1 and PW2 and rejected the evidence of the appellant and his witness. He concluded at p.65 of the appeal bundle :

“I found that the appellant had authorized the work of the flat to proceed after he had received the telephone call from PW1 intending that the estimate was not acceptable. I found that the work caused damage, and that the appellant had so intended in authorizing the work to proceed. Accordingly each element of the charge was proved beyond all reasonable doubt and I convicted the appellant.”

9. The first two grounds of appeal relate to the order for separate trial. It was contended by Mr. Alderdice for the appellant that although an order for separate trial was made but it had the effect that this not carried out because the appellant and the two other men were subsequently all tried before one and the same magistrate. In arguing for the quashing of the conviction on this point alone, Mr. Alderdice relied on a number of authorities. The first case is an unreported judgment of Kempster J.A. sitting as an additional High Court Judge in R v. Kwan Chung-yik, Magistracy Appeal No. 617 & 838 of 1985. The facts were on 16 May, 1985 Kwan Chung-yik was convicted before a magistrate of having received a duck egg on 11 April and was remanded on bail for inquiries including the possibility of a place in a Sea Training School. On 24 May at the same court and before the same magistrate he was convicted, after trial, of taking one bicycle without the consent of the owner and of stealing another; both on 16 March. Those offences were antecedent to the reception of the duck egg. Kempster J.A. allowed the appeal against the convictions of 24 May and ordered a trial de novo, relying on the test enunciated by Ackner L.J. in R v. Liverpool City Justices, ex parte Topping [1982] 1 WKR 119:

“Would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible.”

10. In R v. Mulvihill [1990] WLR 438, the appellant was charged with conspiracy to rob persons at premises belonging to banks and building societies and was convicted of that offence on indictment. He appealed against conviction on the ground that the trial judge owned shares in one of the banks that had been robbed and that he would have objected to the judge having the conduct of the trial if he had known of his shareholding. It was held, in dismissing the appeal, that the test to be applied was whether a reasonable and fair-minded person sitting in court during the trial and knowing of the judge’s shareholding would have had a reasonable suspicion that a fair trial for the appellant was not possible; that a Crown Court judge conducting a criminal trial on indictment with a jury was not the primary decision maker, and, although he had had to make direct decisions on the admissibility of evidence, no reasonable and fair-minded person would reasonably have suspected that it was not possible for him to reach a fair decision because of his shareholding; and that, accordingly, there was no question of bias having arisen.

11. The facts in R v. Liverpool City Justices were that the applicant was charged with criminal damage to a door. When he appeared before the justices, the justices were given the court register in the form of sheets produced through a computer and those court sheets showed not only the charge to be considered by the justices, but seven further charges pending against the appellant. On the advice of the clerk to the justices but against submission by solicitor for the applicant that the justices should not hear the case as they might be prejudiced by their knowledge of the other charges, the justices heard the charge and convicted the applicant. It was held on an application for judicial review that it was for the justices to determine whether there would be the appearance of bias if they continued to hear and determine the charge for criminal damage following the disclosure of the pending charges, that the test was not whether they would be affected by the knowledge but whether a reasonable and fair-minded person - sitting in court and knowing all the relevant facts, would leave a reasonable suspicion that a fair trial for the applicant would not be possible. On this basis, the Divisional Court granted an order of certiorari to quash the conviction.

12. There is also the recent judgment of Litton J.A. sitting as an additional High Court Judge in R v. Pang Kam Wah, Magistracy Appeal No. 832 of 1992. The prosecution evidence was that on the night of 24 June 1992, police officers were observing the activities of the appellant and another man. The other man was seen to hand a $100 note to the appellant who took a packet of white substance from his right front pocket and hand it to the other man who put it in his shirt pocket. The two men were arrested on suspicion of trafficking in dangerous drugs. When searched a packet of white powder was found in the right front pocket of the appellant’s shorts and these were subsequently examined by the Government Chemist and found to contain salts of esters of morphine. The other man pleaded guilty but the appellant pleaded not guilty and was tried and convicted by the same magistrate. On appeal, it was contended that the brief facts put before the magistrate for the purposes of sentencing the other defendant, even after editing, still contained materials which were prejudicial to the appellant. Litton, J.A., after referring to the passage of Ackner L.J. in Liverpool City Justices had this to say at p.8 of his judgment :

“Adopting the same test I cannot see how it could possibly be suggested that a fair-minded person would have considered the Magistrate biased simply because, factually, it can be shown that he had dealt with the same defendant on another charge about a year before. The Magistrates have territorial responsibilities. They deal with cases within particular areas. It frequently therefore happens that the same defendant appears before the same magistrate on successive occasions.”

13. The order for separate trial made by Mrs. Chui made no reference that the appellant and the other two defendants were to be tried before different magistrates. It was an order that the appellant’s trial be severed from the trial of D2 and D3 and on this basis it is difficult to see how a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the appellant was not possible. Furthermore, the learned magistrate at p.50 of the appeal bundle specifically drew the attention of counsel for the appellant at the trial to this particular fact and made it clear that he was putting out of his mind the cases of the two other defendants. There was no objection from defence counsel or any application to the magistrate to discharge himself from hearing the case.

14. The first two grounds of appeal fail.

15. The other grounds of appeal are concerned with evidence and whether the appellant had the intention to cause criminal damage. It was argued by Mr. Alderdice that the overriding intent of the appellant was that the renovation work was carried out by his company and the question of “damage” was merely incidental to the carrying out of such work. It was further submitted that the intention in criminal damage is to cause damage per se. On this aspect of the case, any conclusions to be drawn must depend on the findings of fact by the magistrate. Despite the fact that he had received a telephone call from PW1 that the estimate was not acceptable, the appellant authorized the work to proceed and the work caused damaged.

16. “Damage” is succinctly explained in paragraph B8.5 p.402 and p.403 Blackstone’s Criminal Practice 1993. It says :

““Damage” is left undefined in the Criminal Damage Act 1971. The courts have construed the term liberally. Criminal damage is not limited to permanent damage, so smearing mud on the walls of a police cell may be criminal damage. See Roe v. Kingerlee [1986] Crim. LR 735, where it was also said that : “what constitutes criminal damage is a matter of fact and degree and it is for the justices, applying their common sense, to decide whether what occurred was damage or not.””

17. On mens rea, the learned author deals with the subject in paragraph B8.8 p.404 :

“This is satisfied by either intention or recklessness, and it is the latter, wider concept which has proved crucial. It is now clear following Metropolitan Police Commissioner v. Caldwell [1982] AC 341 that recklessness in this context does not require subjective appreciation of the risk of causing damage, but is also satisfied by a failure to consider an obvious risk.”

18. In my opinion, damage arising out of an intention to coerce the other party to accept the terms of a contract satisfies this test and is sufficient mens rea to support a charge of criminal damage.

19. All the grounds of appeal have failed and accordingly the appeal against conviction must be dismissed.

20. Although the appellant filed a notice of appeal against sentence, it was not pursued during the hearing. The learned magistrate has taken into consideration all the factors favourable to the appellant. My only observation is that this is a light and lenient sentence and one of which I am not disposed to reduce.

21. The appeal against sentence is also dismissed.