MA No. 282 of 1993

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HEADNOTE

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CRIMINAL INTIMIDATION - NO EVIDENCE WHICH OF TWO PERSONS UTTERED THREAT - WHETHER ACTING IN CONCERT IN RESPECT OF OFFENCE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.282 OF 1993

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J U D G M E N T

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1. The appellants were convicted of criminal intimidation by Mr Ho at Tuen Mun Magistrates Court.

2. The prosecution case depended on the evidence of the victim Chan Ming. He was a reluctant witness. On the first day of the trial he failed to appear and a warrant of arrest was issued. When he gave evidence, even when he was permitted to refresh his memory from his witness statement, he could not remember which of the two appellants had made the threat about which complaint was made.

3. Mr Chan had lost money gambling in Macau and was escorted back to Hong Kong by the appellants in order to raise money to repay $20,000 which he had borrowed. They were in a taxi on the way to Tin Shui Wai, where Mr Chan hoped to get money from a friend, when one of them said they would burn his home if he could not repay the debt. He could not recall anything else that was said, except that they used foul language when they asked him to settle the debt and they alleged that the debt was in excess of $20,000.

4. When the taxi eventually stopped Mr Chan got out and tried to escape but the appellants gave chase and caught him. This was observed by patrolling police officers, who took the three men to the police station, where the offence came to light.

5. At the close of the prosecution case there was a submission of no case on the basis that there was no evidence which of the two defendants spoke the threatening words. This was overruled by the magistrate who held that they were acting in concert.

6. Mr Plowman, who appeared for both appellants, conceded that they were acting in concert to obtain the return of the loan from Mr Chan. He submitted however that there was no evidence that the other man associated himself with the threatening words. He relied on the following passage from Goddard LCJ’s judgment in 7. R v Abbott (1955) 39 CAR 141 at 148 :

“If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of Not Guilty in the case of both because the prosecution have not proved the case. If, in those circumstances, it is left to the defendants to get out of the difficulty if they can, that would put the onus on the defendants to prove themselves not guilty. My brother Finnemore J. remembers a case in which two sisters were indicted for murder, and there was evidence that they had both been in the room at the time of the murder; but the prosecution could not show that sister A or that sister B had committed the offence. Very likely one or the other must have committed it, but there was no evidence which one. Although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law should be maintained rather than that there should be a failure in some particular case.”

8. Miss Wong, for the respondent, relied on the fact that the other man - whichever appellant he was - had been part of the enterprise from the beginning and, after the words were spoken, had assisted to recapture the appellant when he tried to escape. This shows, she submits, that he was identifying himself with the words uttered in the car by the other man.

9. In my judgment this does not necessarily follow. It certainly shows the anxiety of both men to prevent Mr Chan escaping and their intention to ensure repayment of the money. The words were briefly uttered. There was no prior mention of burning Mr Chan’s home. The other man said or did nothing at the time to associate himself with the threat. Such threats are not invariably made in such circumstances. It could scarcely be said that, if the threat had been to kill Mr Chan, the other man would necessarily also have identified himself with such a drastic step. On the contrary.

10. In these circumstances, although one of the appellants must be guilty of the offence, it does not follow that both of them are guilty and, as there was no evidence who uttered the words, there was no evidence which of the two appellants is the culprit. For these reasons the appeals of both appellants were allowed and the conviction quashed.