Case Detail

HCMA001044/1989

IN TH SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY C CRIMINAL APPEAL No. 1044 OF 1989

_________

BETWEEN

	THE QUEEN

	AND

	CHAN Ka-fai

_________

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 24 October 1989

Date of Delivery of Judgment: 30 November 1989

_______________

J U D G M E N T

_______________

1. The Appellant pleaded not guilty to a charge of Criminal Intimidation contrary to s.24(a) of the Crimes Ordinance, Cap. 200. The particulars were that on 2nd May, 1989 at western Magistracy he threatened PW1 with injury to his person with intent to alarm him.

2. The incident out of which the charge arose began during the morning break in Court No. 1 at Western Magistracy. The Appellant was there as the Defendant facing trial on a Careless Driving charge and PW1, a solicitor, was there as one of the four Prosecution witnesses to give evidence against him. PW1, on seeing the other three Prosecution witnesses standing outside Court No. 2, joined them and, according to his evidence, entered into a conversation with them about the damage which had been done to his car in the accident which gave rise to the Careless Driving charge. The Appellant saw the group of witnesses talking and came over to them. Addressing one of them, a taxi driver, he swore and said: "It was your car that ran into my car. Why do you still want to prosecute me?". PW1 and the other two Prosecution witnesses left and returned to Court No. 1. Within about a minute the taxi driver entered the courtroom followed by the Appellant still shouting at him. The Appellant sat down and then saw PW1. According to PW1 the Appellant then sworn loudly at him and added: "It was just a minor collision between our cars. Why on earth do you still want to prosecute me?" PW1 said that he himself became angry and replied: "What you have done just now amounts to interference with court witnesses". The Appellant then rose from his seat, rushed towards PW1 and said: "If you come here to give evidence against me I'll certainly inflict harm on you; you'll certainly be dead. I know your residential address. You have to be careful from now on whenever you return home and whenever you leave home. I have plenty of conviction records. I dare to do anything. I'm not afraid of police. I know plenty of lawyers." The court constable then came and told the Appellant to keep quiet. PW1 then reported the matter to the Court Prosecutor and, acting on his advice, went with the taxi driver to report the matter to the officer in charge of the case. PW1 said that he was in fear as a result of the Appellant's threat.

In cross-examination he gave the following evidence:-

"Q. I suggest that you knew very well that the Defendant was apportioning blame on the taxi driver outside the courtoom?

A. You may say so. I just wanted to leave. I was not very interested in their argument.

Q. But you had an argument with the Defendant himself in the Small Claims Tribunal on 11/2/89?

A. No, with his insurance representative.

Q. Even before the careless driving case was decided brought proceedings in the Small Claims Tribunal against the Defendant?

A. That is correct.

Q. And in fact on the Occasion you castigasted the Defendant and made sarcastic remarks about his insurance company?
A. I certainly disagreed with the course of action taken by the insurance company. I said to the Defendant that his insurance company had an obligation to pay compensation if I had a legitimate claim and I suggested to the Defendant that he should be very careful in accepting the evidence given by his insurance company. But I did not have any agrument with the Defendant whatsoever as I knew that the money would eventually come out from the insurance company. That's their job. I certainly did not have any personal confrontation with the Defendant on that day.
Q. Were you not attempting to influence him as to what advice he should accept from his insurer
A. I see no wrong in this. The insurance company person was not a legal representative,''

3. The taxi driver as PW2. His version of the incident outside Court No. 2 tallied with that given by PW1 but his version of the Appellant's conduct which provoked PW1 anger in Court No. 1 was somewhat different. According to PW2, what the Appellant said to PW1, with expletives omitted, was "You want to prosecute. You want me to compensate you with money. It's difficult. I won't compensate you. Get a lawyer to sue me, you stupid! I have a lot of money and lots of lawyers. You can't possibly prosecute me, you teeny weeny ---- lawyer". PW1 then, according to PW2 stood up, told the Appellant to shut up or he would complain to the officer in charge of the case about criminal intimidation. A police constable then approached and told then to be quiet out, according to PW2, the Appellant was defiant and, pointing at PW1, added: "I know your address. You be careful". PW2 said that PW1 then said to the other Prosecution witnesses: "We are now going to lodge a complaint against him for criminal intimidation", and that, when he and the other witness were accompanying PW1 for that purpose, the Appellant said to him, PW2: "You don't know my qualifications, do you? Careful kid".

4. In cross-examination, PW2 said that he heard all that passed between the Appellant and PW1 in Court No. 1 and that he did not hear the Appellant say that PW1 would certainly be dead and that he did not hear him say that he would inflict harm on PW1.

5. PW3 was one of the other witnesses in the Careless Driving case. He heard the exchange outside Court No. 2 and "just a few sentences" inside Court No. 1. He said that the Appellant said he knew PW1's address and asked PW1 if he was a lawyer. He heard the "lawyer" ask if the Appellant was threatening him but did not hear how the Appellant answered.

6. That was the case for the Prosecution. The Appellant did not give evidence nor did he call any witnesses.

7. The learned magistrate found the charge proved.

8. In his appeal against conviction the Appellant relies on a number of grounds, several of which are based on the discrepancies disclosed in the recital of the evidence set out above.

9. The learned magistrate has referred to those discrepancies in his Statement of Findings. The significant discrepancy between the evidence of PW1 and PW2 was that, on the one hand, PW1 said that the Appellant specifically threatened physical harm and certain death, whilst on the other. PW2 said that, although he heard all that passed between the Appellant and PW1, he did not hear any actual threat of physical harm, let alone physical harm leading to possible death. Referring to that discrepancy the learned magistrate said that he was "convinced that once the [Appellant] turned his unwanted attention on the lawyer the taxi driver would have paid no great attention to his words".

10. The learned magistrate thought that it was understandable that the taxi driver could remember, as he said he could, the words of the threats made to him, and yet forget the term of any threat made to PW1.

11. Mr. Mullick's submission was that, although a discrepancy between the evidence of PW1 and PW2 as to the terms in which a threat was attered would not have been material, it was a material discrepancy for one witness to say that there had been a threat serious enough to cause alarm and provoke an angry reaction to report the conduct and for the other to say that it was not a threat but abuse, braggadocio and ridicule which provoked that same angry reaction.

12. The learned magistrate did, however, say that although all three witnesses were "Honest witnesses of truth", he "found PW1 to be not just an honest witness but a totally reliable and accurate one not given to exaggeration". Having formed that view form having seen and heard the witnesses he was duty bound to accept PW1's evidence where there was conflict between him and PW2 particularly where the evidence related to remarks addressed directly to PW1. I am, therefore, not persuaded that the learned magistrate did fail to give proper consideration to this material discrepancy.

13. Another ground relied on was that the learned magistrate erred in holding that the words used, "in all the circumstances of the case", were intimieatory within the meaning of s.24 (a) of the Ordinance. The words which the learned magistrate found used were those attributed to the Appellant by PW1 to the effect that the Appellant knew PW1's address and that he would do him physical harm if he continued to be a witness against him. I agree with the learned magistrate that those words constitutes a full intimidating threat to PW1.

14. The other two grounds complain that the learned magistrate failed to take proper account of the incident at the Small Claims Tribunal and the circumstances under which the incident at Court No. 1 took place. What happened at the Small Claims Tribunal coupled with the incident outside No.2 Court explain why the Appellant may have been so angered by the presence of PW1 as a Prosecution witness but, once the learned magistrate found that PW1 was "totally reliable and accurate" and by his own evidence proved an essential ingredient of the offence, there was no need for him to consider the Appellant's motive in committing the offence.

15. I can see no reason for allowing the Appellant so it must be dismissed.

	(E.C. Barnes)
	Judge of the High Court

Representation:

Mr. Derek Pang, C.C. For Crown Prosecutor.

Mr. John Mullick & Mr. Raymond Yu instructed by Messre. Kenneth C.C. Man & Co. for Appellant.

HCMA001044A/1989

IN TH SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY C CRIMINAL APPEAL No. 1044 OF 1989

_________

BETWEEN

	THE QUEEN

	AND

	CHAN Ka-fai

_________

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 24 October 1989

Date of Delivery of Judgment: 30 November 1989

_______________

J U D G M E N T

_______________

1. The Appellant was found guilty on a charge of Criminal Intimidation contrary to Section 24(a) of the Crimes Ordinance, Cap. 200 and was sentenced to imprisonment for 12 months.

2. He has appealed against both conviction and sentence. I have just delivered judgment in which I have dismissed the appeal against conviction and the facts of the matter are set out in the written judgment which I have just handed down in respect of that appeal.

3. The learned magistrate was of the view that a custodial sentence was necessary. I agree that, in order to mark the gravity of the offence, a custodial sentence is required but there are a number of facts in this case which persuaded me that a term of 12 months is manifestly excessive.

4. In the first place, there was no pre-meditation, no attempt to influence the witnesses at any time before the Appellant saw them conferring together before the trial and conferring together within the precincts of the court room in which the trial was to take place. Bearing in mind the previous incident at the Small Claim Tribunal when the solicitor witness tried to influence the Appellant against acting on the advice of his insurance representative. It is understandable that he might suspect that the same witness was trying to influence the other witnesses. Reprehensible as his conduct was, and Mr. Mullick, who has argued this appeal on his behalf, concedes that on any view his conduct must be so described, it was that scene which triggered off the reaction to utter the threats which led to the laying of this charge on which has been convicted.

5. The threats themselves were more than "Wild and whirling words", as the learned magistrate found, but they were nonetneless not much more than that, otherwise the witness who heard everything said to the solicitor would surely have remembered the gist of the threat more perfectly than he remembered verbatim the bragging references the Appellant made to himself and the provocatively belittling references he made to the solicitor.

6. It is also understandable that that conduct on the part of the Appellant produced an angry reaction from the solicitor. It is, however, in my view likely that that anger on the part of the solicitor had the effect of building a mountain of fear from the molehill which existed before the onset of anger.

7. There is no doubt that the solicitor felt enough fear to report the matter and to encourage the other witnesses to make a report with him. There is also the fact that the Appellant eventually pleaded guilty to the careless driving charge.

8. The suddenness of the threat and the Appellant's subsequent conduct indicate that he probably had no real intention of carrying out the threats.

9. I think that in those circumstances, grave as the offence was for the reasons which the magistrate explained, did not warrant a sentence of imprisonment for 12 months. I think that a sentence which is commensurate with the gravity of the offence and which takes into account the circumstances under which it was committed is imprisonment for 3 months suspended for two years.

10. The Appellant has had the experience of two weeks in custody. He was released on bail pending this appeal and I think he has learnt a lesson as a result or this experience.

11. I will make an allowance for that by substituting a sentence of imprisonment for two months suspended for two years.

12. I allow the appeal against sentence to that extent.

	(E.C. Barnes)
	Judge of the High Court

Representation:

Mr. Patrick Li, C.C. for Crown.

Mr. John Mullick inst. by C.C. Man & Co. for Appellant Chan Ka Fai.

THE QUEEN v. CHAN KA FAI

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