R. v. WONG KWAI FUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 219 OF 1996

(On appeal from Case No. TMC 4224 of 1995)

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J U D G M E N T

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1. The Appellant, WONG Kwai-fun was convicted of the charge of Criminal intimidation. He was sentenced to six months' imprisonment to run consecutively to the sentence that he was serving. He now seeks leave to appeal against both the conviction and sentence.

2. At the material time the Appellant was an inmate at the Siu Lam Psychiatric Centre. The victim of the charge, Mr CHOK Kin-ming, was a Principal Officer of the Correctional Services Department and was in charge of The Siu Lam Psychiatric Centre at the relevant time.

3. According to Mr CHOK, on 15 December 1994, he was told that the Appellant wanted to have an interview with him and some papers with Chinese characters from the Appellant were also given to him. The writing was in fact stories of Chinese idioms and there was a brief account of the Appellant's treatment previously when the other officers were in charge of the Siu Lam Psychiatric Centre. The writing also advocate that the old rules should be followed.

4. Mr CHOK then interviewed the Appellant and asked him why he sent him the writing and that interview took place in the presence of another officer, Mr FUNG Wai-kin. When asked, the Appellant complained of the changes in the management style in Siu Lam and there was no conflict between him and the management before those changes. He also said when he was in Stanley and Lai Chi Kok, the staff there did not keep an eye on him and there was no conflict, so it was good for the management to continue with such practice.

5. The Appellant, according to the evidence, further said to Mr CHOK, "You just work out for your salary. You are entitled to, and 1997 is approaching. You just close your eyes and receive your salary." He went on to say that he was not satisfied with Mr CHOK in telling two other inmates of the same ward not to subscribe newspapers for the Appellant.

6. Mr CHOK then tried to explain to the Appellant that he had to follow the rules. The Appellant then told him or said to him, that some of his brothers released from Stanley were not happy about what Mr CHOK had done to him. He then told Mr CHOK that he should be aware of what had happened to a film director, Mr WONG Ching. According to Mr CHOK at that time he was aware that Mr WONG had been assaulted and such incident was widely reported in the local Chinese newspaper. And one of such reports had in fact been exhibited, that was a report from the Tin Tin Daily on 19 November 1994. According to that report Mr WONG Ching was kicked and punched by three men which resulted in his suffering injuries to the corner of his mouth and his forehead.

7. When Mr CHOK asked the Appellant why he was quoting that WONG Ching incident, the Appellant was alleged to have told Mr CHOK the following: "You just close your eyes or else the trouble will be extended to your family." Mr CHOK then told the Appellant that if his family was harmed, the matter would be reported to the police. He also said he was alarmed due to some nuisance calls and messages containing unfounded accusations against him, that he received around the time.

8. According to Mr CHOK, as the officer in charge of Siu Lam he had in fact prevented other inmates from subscribing newspaper on behalf of the Appellant. Such matter apparently had caused the Appellant to be unhappy.

9. In the course of the trial it was suggested on behalf of the Appellant that the Appellant had no history of violence while he was in prison and he always used legitimate channels to air his complaints and grievances. It was also suggested that Mr CHOK disliked the Applicant, which suggestion Mr CHOK denied. It was suggested that Mr CHOK had exaggerate and twisted what the Appellant had said, again Mr CHOK denied those suggestion.

10. At the end of the prosecution's case the Appellant elect not to give evidence and he also called no witnesses to give evidence on his behalf. In support of this appeal it was suggested that the learned magistrate had not properly dealt with the discrepancies between the evidence of Mr CHOK, and a record of the incident by the officer who was present at that time, Mr FUNG.

11. I have considered counsels' submission in that regard and I have also gone through the records of the proceeding in detail. Those discrepancies in my view, in the light of the background is not of too much significance. Even the record made by Mr FUNG also indicate that word uttered by the Appellant were some form of intimidation.

12. In any event, the learned magistrate had dealt with such discrepancies and on the evidence he was entitled to accept what Mr CHOK had said in his evidence. Indeed in the absence of anything to the contrary from the Appellant himself, when he elect not to give evidence, not to call any evidence, it would be difficult for the learned magistrate not to accept such evidence at all.

13. No complaint could also be made of the failure on the part of Mr CHOK to immediately discipline the Appellant after he make such threat. If he had disciplined the Appellant himself, he probably himself would be subject to the criticism of putting himself in a situation of conflict of interest.

14. In my view, Mr CHOK conduct himself properly in the circumstances by reporting the matter to the police instead of punishing the Appellant himself in his capacity as the officer in charge of Siu Lam Psychiatric Centre.

15. In evaluating the evidence, the learned magistrate clearly bore in mind the position of the Appellant as an inmate and Mr Chok himself as the officer in charge of this institution. And he had dealt with the matter, in my view, in an impeccable manner.

16. The Appellant in support of this appeal also adduced the further evidence in the form of a newspaper cutting which was published the day after the conviction and sentence. It does not show which newspaper it is but I do not think it is important anyway. The suggestion, according to this newspaper report is that the attack or the assault on Mr WONG Ching could well have been something which was not true. Different newspaper may of course carry different reports of the same incident. To what extent the public accept or reject those publications is a matter of good sense or judgment on the part of the individual. But the fact remains Mr CHOK was aware of the alleged assault on Mr WONG and in the context of the Appellant's reference to such incident it was clearly meant to be a threat or why else would he have made such a reference.

17. In any event, this further evidence adduced in support of this appeal, was not available to the learned magistrate at the time when he had to deliberate on the guilt or otherwise of the Appellant and to that extent can be said that this newspaper reporting is hardly of any relevance.

18. In the light of the history and the background of this case, having found the primary facts as the learned magistrate had indicated, he was, in my view, clearly entitled to conclude that the words uttered by the Appellant were threats to injure Mr CHOK or perhaps his family, with a view to make him bend the rules to suit the desire of the Appellant. Such threat would have the effect of overcoming the ordinary free will of an ordinary man and was intended to alarm and in fact did alarm Mr CHOK. As according to him he actually felt quite frightened by such threat.

19. On the evidence I am firmly of the view that the Appellant had been rightly and properly convicted on the charge of Criminal intimidation.

20. So far as sentence is concerned, the degree of seriousness or culpability can vary so much in different cases of Criminal intimation. And to that extent, authorities on sentence may not be that helpful. Further so far as this particular case is concerned, it is a case of his own in that it is a case concerning an inmate in a Correction Services Institute who threatened the person in charge of that Institution with a view that certain rules should be relaxed in his favour.

21. Prison rules must be followed and an officer has the duty to implement such rules. Attempts by inmates to threaten the officer with a view to make him bend the rules is a serious matter. In view of the fact that the Appellant at the material time was already serving a significant terms of imprisonment. In my view, in the light of the background of this case, the only proper sentence is another short term in prison to run consecutively to the sentences that he was already serving. A suspended sentence in my view cannot be an appropriate sentence at all as I indicated in the course of counsels' argument. But that may the effect of encouraging other inmates to do the same thing at least once.

22. In the light of the background and the nature of the charge, the six months' imprisonment on the Appellant to run consecutively to the sentence that he was serving is neither wrong in principal nor manifestly excessive. There is no reason at all for this court to interfere with either the finding of guilt or the sentences imposed on the Appellant.

23. In the circumstances, the appeal both against convictions and sentence are dismissed.

I/we certify that to the best of my ability and skill, the foregoing is a true transcript of the tape recording taken of the above proceedings.

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Dated the 20th day of November 1996