HKSAR v. KHAN UMER

HCMA932/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.932 OF 2001

(ON APPEAL FROM WSCC 3350 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction and sentence in respect of the appellant's conviction after trial for an offence of claiming to be a member of a triad society.

2. The facts of the case are relevant to both the appeal against conviction and appeal against sentence.

3. They are that the appellant went to his former place of employment and demanded to be paid wages still owing to him. When told by a staff member of the firm that he would be paid on a forthcoming pay day, but not immediately, the appellant became angry and eventually claimed to be a member of "Sing Wo", which was agreed at trial to be a reference to the "Wo Sing Wo" an active triad society in Hong Kong.

4. I will deal with the appellant's appeal against conviction in respect of which he appears in person. His ground was simply that the conviction was against the weight of the evidence.

5. The evidence against the appellant came from two prosecution witnesses. PW1 was a staff member of the appellant's ex-employer to whom the appellant claimed to be a member of a triad society. PW2 was another employee of the company who was present when the appellant made the claim to PW1 and who heard him do so. Both those witnesses were accepted as witnesses of truth and reliability by the learned magistrate.

6. The appellant did not give evidence at trial, nor did he call any witnesses. So the fundamental issue in the case was, indeed, that of the credibility of PW1 and PW2.

7. Their credibility had apparently been attacked at trial by the appellant's then counsel on the basis that PW1's motive for giving false evidence against the appellant was because the appellant had left the employ of the company without giving proper notice and had returned to demand his back wages in an aggressive and impolite way.

8. It was apparently urged upon the magistrate that PW2's motive for falsely incriminating the appellant was that he simply wanted to keep his job with the company and so gave supporting evidence to PW1.

9. In regard to PW1 and PW2's credibility, the learned magistrate said this :

" After careful consideration of all the evidence and Counsel's Submissions, I accepted PW1 and PW2 as honest truthful and reliable witnesses. I did not accept the Defence Counsel's submission that in order to keep the job or please PW1, PW2 might say what PW1 wanted him to say in evidence. The Defence Counsel's Final Submissions have not caused me to doubt the evidence of PW1 and PW2. In my judgment, they were witnesses of the truth."

10. The reasons given by the learned magistrate could perhaps be regarded as somewhat brief so far as why he accepted the evidence of PW1 and PW2 as truthful. And indeed when first considering his reasons for accepting the evidence of PW1 and PW2, I was concerned that he had given no real reasons at all.

11. But taking into account the summary of the evidence set out by him in his Statement of Findings and those parts of the evidence emphasised by him in those summaries, I have concluded in the circumstances of this case, where the only material evidence came from the prosecution witnesses, the appellant not giving evidence, and the prosecution eivdence remaining uncontradicted, that the reasons given by the learned magistrate for accepting the evidence of PW1 and PW2 as reliable were, though bare, sufficient.

12. I would respectfully suggest however that detailed summaries of witnesses evidence are not by themselves substitutes for the giving of reasons for findings of fact. The requirement pursuant to section 114(b) of the Magistrates Ordinance that a magistrate provide, on appeal, with or within his Statement of Findings the "grounds of his decision" is not satisfied by providing only, in effect, a summary of the evidence.

13. Nevertheless as I say in the circumstances of this case sufficient, though bare, reasons were given.

14. The magistrate was entitled to conclude that PW1 and PW2 were witnesses of truth. Matters of credibility are best decided by the tribunal before whom the evidence is given. His finding in that regard cannot be criticised. The appeal against conviction is dismissed.

15. I turn to the appeal against sentence.

16. The magistrate imposed a sentence of four months' imprisonment on the appellant.

17. Mr Lam who appears for the appellant on his appeal against sentence only, urges upon me that sentence is too severe.

18. He says the magistrate effectively and wrongly placed the appellant's offence in the more serious category of offences involving such claims being made for the purposes of threatening individuals in the course of forcing money from them. He relies upon a passage in the magistrate's Reasons for Sentence, given after trial, as follows :

"...According to the evidence, which I have accepted, the claim made by the defendant was coupled by a threat. Although the company was indebted to the defendant, the defendant nevertheless should not have taken this way to recover the money. In my view the demand was unwarranted because it was tainted by your claim and threat."

19. Mr Lam says the magistrate effectively sentenced the appellant as a professional triad rather than as a person who, in the heat of argument, made a foolish statement in the hope of getting what he wanted and indeed what he was owed.

20. Mr Lam points out that the appellant, though a drug addict at the time and for years previously, had never had a similar conviction and that the claim was made in the course of him insisting on being paid monies which were in fact owed to him and after he had become angry when denied those monies. Mr Lam suggests that the threat actually posed by this claim coming from a frail 58 year old cleaner was minimal.

21. Further, says Mr Lam, the appellant at the time of being sentenced for this offence was some months into a DATC order made in respect of his having committed an offence of possession of dangerous drugs.

22. Mr Lam urges upon me that albeit section 6A of the DATC Ordinance does allow for the continuation of that DATC order after the appellant has served the four months' sentence of imprisonment, that the magistrate failed to take into account the "totality", if it can be called that, of the two sentences.

23. In my judgment, a claim to be a triad is an offence which can cover a wide range of criminality. It can range in its circumstances perhaps from mere bravado, where the claim is made foolishly to impress an acquaintance, to circumstances where it is made in a calculated and deliberate way to facilitate a purpose such as systematic extortion of a victim.

24. The offence in the present case was somewhere between the two extremes of this range. I accept it was made in the heat of the moment during an argument arising from the appellant having been denied immediate payment of monies in fact owing to him. However it was made to facilitate a demand for money, even if in the mind of the appellant that demand was warranted. I am sure that even though made in the heat of the moment, it was intended to convey some element of threat though the effect of it must have been minor.

25. In my view it is true that there must usually be an element of deterrence incorporated into a sentence for an offence of this sort. For that reason, the magistrate cannot be criticised for imposing a sentence of imprisonment.

26. The circumstances of cases such as R v. Wu Yau Man [1996] 4 HKC 255 and R v. Chow Kam Chuen C.A.609/1996, where the courts criticised the termination of existing DATC orders by the imposition of subsequent sentences of imprisonment, do not apply to offences such as the present where general deterrence is a significant factor in sentence. Those cases related to the cessation of DATC orders by the imposition of prison sentences for further offences of possession of dangerous drugs but of a length greater than would allow a mere suspension of the existing DATC orders already in existence in those cases.

27. In my judgment taking into account the requirement of deterrence, the magistrate cannot be criticised for his imposition of the sentence of imprisonment in this case which is of a period to allow the continuation of the existing DATC order upon its expiry pursuant to section 6A of the DATC Ordinance.

28. So far as the length of the sentence imposed is concerned however, in my view, the magistrate has in his reference to the demand being "unwarranted" regarded the offence as being more serious than the facts accepted by him show it to be. Those facts are wholly consistent with the appellant making a foolish claim during a heated argument. There was no calculation involved. It seems to me a prison sentence of four months is excessive in those circumstances.

29. Accordingly, I order the sentence of four months be set aside and substituted with a sentence of two months' imprisonment.

30. That means the appellant has effectively served his sentence of imprisonment and pursuant to section 6A of the DATC Ordinance may now, or shortly at least, resume his performance of the DATC order earlier imposed upon him.