THE QUEEN v. LUI YIU-KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No 1165 of 1988

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J U D G M E N T

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1. The appellant, who is restaurant proprietor, was convicted after a contested trial of criminal intimidation and was sentenced to three months imprisonment suspended for fifteen months and fined $1,500. He now appeals against his conviction.

2. The evidence on which the prosecution relied was that, as the result of a complaint made to him, a Housing Department officer visited the appellant at his restaurant in the Choi Yuen Estate and spoke to him concerning two possible breaches of regulations. The appellant became aggressive and according to the officer, said to him:

"In the past even managers dare not move against me. You be careful. Your kids are young so is your wife. I know you live in Yuk Po Court. I know many people coming from the three hills and five mountains. You have caused me the loss of a few million dollars because of your application to the Attorney General for my rental payment. I only need to pay $20,000 to play with you till you are ruined so that you cannot go to work tomorrow. "

3. A Housing Department foreman, who had overheard part of the conversation between the appellant and the officer, was able to corroborate that part of the officer's testimony concerning the appellant's alleged assertion that he needed only $20,000 to play with the officer till he was ruined and unable to return to work.

4. The appellant declined to give evidence but called his wife and a village representative to testify on his behalf. They said that they were present and had overheard the conversation between the appellant and the officer, and that the appellant had not made any threats. Their account of what had happened was totally at variance with that given by the officer and the foreman. Accordingly to the two defence witnesses the reference by the appellant to $10,000 or $20,000 related to the sum he was prepared to spend on improving the ventilation system of the restaurant.

5. The magistrate accepted the evidence of the officer and rejected that of the two defence witnesses.

6. Mr. Alderdice, who appears on behalf of the appellant, has advanced a number of grounds of appeal. During the course of argument, however, he accepted that some of he matters he relied on were based on a misinterpretation of the evidence. These grounds were therefore abandoned and the outcome of the appeal has been left to rest on two remaining grounds.

7. The first of these is that the magistrate erred in law in concluding that the words related by the officer as having been said to him by the appellant were capable of amounting to criminal intimidation. The basis of this contention is that the words amounted to no more than angry abusive language and were understood to be such by the officer.

8. For the prosecution to succeed on its allegation that the appellant had threatened the officer with injury to his person with intent to alarm him, it was necessary to establish, first, that the appellant had threatened the officer with an injury to his person and, second, that whatever might have been the officer's understanding of the appellant's intent, the appellant had in fact intended to alarm the officer.

9. Mr. Alderdice contended that the officer's understanding of the appellant's intent was relevant to a consideration of whether the appellant in fact had the intent to alarm the officer. Clearly, in determining whether a person uttering a threat intended to alarm the person to whom it was addressed, a court must have regard to the circumstances and the manner in which it was uttered.

10. In the instant case it had been put to the officer in cross-examination that the appellant had not really meant what he had said.  The officer candidly replied that he had hoped that this was so, but added that he was very afraid at the time.  It was plain from his testimony that he had immediately reported the matter to his superior officer, and that since the appellant had not approached him in a spirit of conciliation during the following few days, he concluded that his hope that the threat had not been uttered with serious intent was unfounded. He then made a report to the police.

11. It is plain to me that on the evidence before him the magistrate was justified in concluding that the words allegedly used by the appellant did constitute a threat of physical injury to the officer, notwithstanding that it was not clear from the words themselves what precise form the injury would take,, and that the appellant had intended to alarm the officer. This ground of appeal therefore fails.

12. The ground on which Mr Aldcrdice places greatest reliance is that the Magistrate failed to evaluate properly the evidence given by the two defence witnesses in that, first, he dismissed the wife's testimony as being "self serving to the interests of her husband" and second, he concluded that the village representative had "totally destroyed his own credibility and also left the defence version in disarray with his explanation of the appellant's response to the complaint made by [the officer] to the appellant about the pollution problem."

13. The magistrate's finding as to the credibility of the village representative was based on the following reason:

    "The village representative echoed the evidence of [the appellant's wife] to the effect that the appellant said "he would spend $10,000 or $20,000 to improve the system", and then after a moment's pause volunteered the words "Perhaps, then [the officer] misunderstood that [the appellant] was going to fix him"."

14. It is not clear why the magistrate arrived at the conclusion that, by offering this explanation, the village representative had totally destroyed his own credibility. It appears to be founded on the assumption that, unless the witness had been acting in collusion with the appellant to give false evidence, he could not have known about the allegation by the officer that he had been threatened. Counsel for the Crown, while submitting that the conviction should be upheld on the basis that the magistrate had found that the officer had given truthful evidence, was unable to offer any explanation for the magistrate's specific finding on the village representative's testimony.

15. As Mr. Alderdice submits, it would be very surprising if, when interviewing the village representative as a potential witness for the defence, the solicitors for the appellant had not told him that the charge against the appellant contained an allegation that he had threatened the offices with injury to his person. It would be equally surprising if they had not asked him whether he had heard the appellant utter any such threat. Given that probable background, it is not unreasonable that in giving his testimony the village representative volunteered the suggestion that perhaps the officer had misinterpreted the words used by the appellant as constituting a threat.

16. In my view there was no justification, for the magistrate to conclude from this volunteered remark that the witness had "totally destroyed his own credibility". I am equally unable to find justification for the conclusion that the witness had "also left the defence version in disarray with [that] explanation"

17. The unfortunate result of these two conclusions was that the defence was stripped of the benefit of testimony that might otherwise have case a reasonable doubt on the prosecution case.

18. With regard to the wife's testimony, Mr. Alderdice frankly conceded that the magistrate did not state that he had rejected it on the basis that the evidence given by the wife of a defendant is inherently incredible. Indeed I am satisfied that the magistrate did no more than find, as he was entitled to do, that he doubted whether she had actually been present or had overheard the critical part of the conversation between the appellant and the officer, and that he viewed her evidence as being "self serving to the interests of her husband". There is therefore no substance in the rather tentatively argued complaint as to the manner in which the Magistrate dealt with this aspect of the defence case.

19. However, for the reasons have given concerning the magistrate's treatment of the testimony of the village representative and the conclusions he drew as a consequence, I am left in no doubt that this appeal must be allowed and the conviction, quashed. In view of the seriousness of the allegation that a threat was made to a public officer acting in the course of his duty, I order that the case be retried before a different magistrate.