HKSAR v. CHAN KWAI HO

HCMA 694/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 694 OF 2001

(ON APPEAL FROM WSCC 3879/2001)

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J U D G M E N T

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1. The Appellant appeals against his conviction by Mr Kelly sitting at Western Magistrate's Court on 13 June this year of 3 charges of criminal intimidation, (in the case of charge 1 contrary to S. 24(c)(i) of the Crimes Ordinance and in a case of charges 2 and 4 contrary to S. 24(a)(i) of the Crimes Ordinance Cap. 200) and of one charge of common assault contrary to Common Law.

2. The written grounds of appeal are unspecific but appear to be simply that the convictions are not safe and satisfactory and that the Appellant is not guilty of the offence. In his verbal submissions before the court today, the Appellant complains that in assessing the discrepancies in the evidence of the prosecution witnesses, the magistrate was wrong to take into account the lack of education of PW3 and that an uneducated person should not be put in a privileged position when it comes to assessing discrepancies in his evidence.

3. The Appellant also appeals against the sentences imposed upon him by the learned magistrate. The learned magistrate ordered that the concurrent sentences of 9 months' imprisonment and 3 months' imprisonment which he imposed on charges 1 and 2 respectively should run consecutively to the concurrent sentences of 2 months and 9 months he imposed on charges 3 and 4 respectively, making a total term of 18 months' imprisonment.

4. The written ground of appeal is that the sentence was too severe. In court today the Appellant has argued that the sentences on counts 1 and 2 should have been concurrent to those on charges 3 and 4 as the charges all arose out of the same incident.

5. The Appellant was represented by counsel at his trial. Today he is unrepresented.

6. I shall deal firstly with the appeal against conviction.

7. The principal issue at the trial was the credibility of PW1, PW2 and PW3. They were all members of the same family and involved in running the Hop Yick grocery shop in Western district. All 3 were present on 13 March 2001 when the Appellant asked for 3 bottles of beer and on being presented with those three bottles of beer refused to pay. It was then that the Appellant is alleged to have said that he was triad society "Tor Dei". Those words are the subject of charge 1. During the argument that followed the Appellant is alleged to have threatened to slap PW2 and that threat is the subject of charge 2.

8. At about 4:30 pm on 15 March, two days later, the Appellant is alleged to have returned to the shop with another person and assaulted PW3. That assault is the subject of charge 3. He is also alleged to have threatened to damage the goods of PW1 with a motor vehicle if they were left outside the store.

9. The Appellant elected not to give evidence.

10. The learned magistrate adopted the correct burden and standard of proof in relation to the charges and considered the evidence in respect of each charge separately. He carefully examined the credibility of the prosecution witnesses, bearing in mind that they were related and also that they had had the opportunity of discussing the matter between the incident and the trial. He assessed the discrepancies between the witnesses and between what the witnesses had said in court and what he or she had said to the police. He concluded that on the principal issues he believed the witnesses.

11. In my view, there is no objection whatsoever to the magistrate bearing in mind the lack of education of a witness in assessing his credibility. It is clearly a relevant factor. Nothing that has been said to me today by the Appellant lead me to doubt that the magistrate made his assessment as to the witnesses' credibility correctly.

12. The only matter that causes me concern is the particulars of charge 1. S. 24(c)(i) of the Crimes Ordinance provides that any person who threatens any other person with an illegal act with intent in any such case to alarm the person so threatened or any other person shall be guilty of an offence. The offence requires therefore the threat of an illegal act.

13. Insofar as the particulars of charge 1 are concerned the particulars of offence read:

"CHAN Kwai-ho, you are charged that on the 13th day of March, 2001 at G/Floor, 'Hop Yick' grocery shop, 43A Ko Shing Street, Western, in Hong Kong, you threatened YEUNG Ping-kong with an illegal act, namely claiming yourself to be triad society "Tor Dei", with intent to alarm the said YEUNG Ping-kong."

14. In other words, the illegal act is identified as being the claim to be a triad society "Tor Dei". But the prosecution case as presented at trial was not that the Appellant threatened that he would claim to be a triad society "Tor Dei" but that he actually did so. Mr Madigan for the Respondent today concedes that this charge was badly drafted and the correct charge should have been under S. 24(a) of the Crimes Ordinance.

15. The learned magistrate appears to have taken the view, and I have sympathy with his difficulty that, contrary to what the particulars of offence actually said, the charge was alleging that the Appellant threatened PW1 by means of the claim that he was a triad society "Tor Dei" not with a claim that he was triad society "Tor Dei". He took the view that such words carried an implied threat though he did not make any finding what the Appellant was impliedly threatening to do.

16. In my view, unless the charge was amended, the Defendant was entitled to rely upon the charge he was facing being as it was drafted, namely that he was threatening his victim that he would claim to be a triad society "Tor Dei". The evidence did not bear such a charge out. All he had done was to carry out that claim.

17. I allow the appeal against conviction on charge 1. I dismiss the appeal against conviction on charges 2, 3 and 4.

18. Insofar as sentence is concerned the sentence of 9 months' imprisonment on charge 1 drops away. The evidence of what the magistrate found the Defendant to have said on 13 March including the fact that he was triad society "Tor Dei" and that if the victim did not "know people" he "could not make business" was, however, a matter the learned magistrate could take into account when assessing the gravity of the subsequent offences committed by the Appellant.

19. He was justified in coming to the conclusion that the offences were not simply words uttered and acts committed in the heat of an otherwise innocent dispute but the opening typical of a syndicated approach for protection.

20. The sentences the learned magistrate imposed on counts 2, 3 and 4 were perfectly proper. I consider it proper that the 3 months' imprisonment imposed in respect of count 2 should run consecutively to the sentences on charges 3 and 4. The offence in charge 2 was committed on a separate occasion, albeit for a connected motive to the other offences.

21. I dismiss the appeal against sentence in respect of charges 2, 3 and 4. The Appellant will serve a total of 12 months' imprisonment.