HKSAR v. SIT KIN WAH

HCMA 517/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 517 OF 1999

(ON APPEAL FROM FANLING MAGISTRACY

CASE NO. FLCC 633 OF 1999)

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J U D G M E N T

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The appellant was convicted of one offence of criminal intimidation. In essence, one prosecution witness gave evidence that he was verbally threatened by the appellant. The defence was that on the day of the alleged offence the appellant did not even talk to the witness. The learned magistrate resolved the conflict of evidence against the appellant and she gave reasons on how such conclusion was reached.

2. Counsel for the appellant before me did not attack the reasons or the conclusion. The real ground of appeal is that the offence of criminal intimidation includes the element of "with intent to alarm" but the learned magistrate in the oral reasons given in court made no reference to this element and so it leaves the impression that she did not consider it. However, it is accepted by counsel for the appellant that this element of intent is covered in the written Statement of Findings.

3. I am well aware of numerous observations and rulings by much wiser judges that a trial magistrate must consider and mention fundamental issues before rendering the verdict. I do not in any way seek to depart from those decisions. However, my understanding is that none of those decisions goes so far as to require trial magistrates in giving brief reasons at the conclusion of a trial a full discourse on every intricacy of the case. The essential thing is that the fundamental issues at the trial must be dealt with.

4. If a trial magistrate purports to go through all the legal and evidential points at the conclusion of a trial and in the process fails to mention one, it may be fairly said that there was a fatal omission. However, where the trial magistrate only set out to give brief reasons, as the learned magistrate in this case did, it should be sufficient if those reasons deal with only the issues actually raised at the trial because that is what the parties want the trial magistrate to pay particular attention to and to deal with head on. Of course, this does not relieve the trial magistrate the duty to satisfy himself or herself that the case against the defendant has been proved beyond reasonable doubt in every respect. But this can be demonstrated in the fuller Statement of Findings as the learned magistrate did in this case.

5. One must of course guard against the rare occasion and real possibility that a trial magistrate makes ex post facto justification of a verdict. On the other hand, it would be wrong to start with doubt over the integrity of a judicial officer. There should be basis before doubt begins to form. Counsel for the respondent, supporting the conviction, says that if for example the oral reasons and the Statement of Findings give conflicting explanations then there is legitimate concern for an appellate court to intervene. But this is not case here.

6. If reasons are given subsequently in apparent answer to complaint of inadequacy of reasoning, then also, I would intervene. In this case, the Statement of Findings were written after the Notice of Appeal was filed. However, the Notice of Appeal does not disclose the specific ground relied upon. In fact the grounds of appeal shifted at least twice. There is no way one can say the learned magistrate attempted to cover her tracks.

7. In the premises, there is insufficient cause to disturb the verdict of the lower court. The appeal was dismissed and the conviction upheld.