Before : Deputy High Court Judge McMahon in Court
Date of Hearing : 14 May 2002
Date of Judgment : 21 May 2002
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U D G M E N T
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1. This
is an appeal against conviction only.
The appellant was convicted after trial of an offence of making
persistent telephone calls, contrary to section 20(c) of the Summary
Offences Ordinance, Cap.228 (“the Ordinance”).
2. The
charge was particularised in the following terms :
“YAU CHIU-MING, you are charged that
between 1st day of
May, 2001 and 18th day of June, 2001, in Hong Kong, you did
without reasonable cause persistently make telephone calls to LEUNG Chung-hong
for the purpose of causing annoyance to him.”
In other words, the appellant was charged with a continuing
offence under the provisions of section 20(c) of the Ordinance. That section is in these terms :
“ Any person who—
…. for the purpose of causing
annoyance, …
(c) persistently
makes telephone calls without reasonable cause and for any such purpose as
aforesaid,
shall be liable to a fine of $1,000 and to imprisonment for 2 months.”
3. The
facts of the case as found by the magistrate were that the appellant either
from his mobile telephone or home telephone had rung the victim’s mobile or
house telephones on a large number of occasions during two periods,
i.e. between 1 May and 14 May 2001 and subsequently between
1 June and 18 June 2001.
The number of telephone calls per day ranged from one or two up to 40 or
so, and totalled eventually some 170 calls at the end of the
two periods.
4. Four grounds
of appeal are advanced on behalf of the appellant. They are as follows :
(1) The finding
by the magistrate that the telephone calls made by the appellant to the victim
were persistent was wrong in law.
(2) The
magistrate failed to consider the appellant’s evidence properly and
particularly failed to consider whether the appellant was the victim of a prankster
pretending to be the victim.
(3) The
magistrate erred in analysing the appellant’s case.
(4) The
magistrate erroneously reversed the prosecution’s onus to disprove the
appellant had reasonable cause to make the telephone calls to the victim.
5. The
appellant’s second and third grounds can conveniently be dealt with
together. Both grounds taken
together effectively complain that the magistrate failed to properly consider
the appellant’s case and evidence to the effect that he was merely returning
calls made to his telephone and that there may have been some third person
tricking both the appellant and the victim by telephoning the appellant and
leaving the victim’s phone number as the purported caller’s telephone number.
6. The
magistrate, in her Statement of Findings, specifically addressed the
possibility of the appellant’s case to the effect that there may have been
another person making these calls and falsely leaving the victim’s telephone
number. She said in that regard :
“ Although PW1 (the victim) in
no uncertain term said that he did not page or call the Defendant, there is
still a possibility that someone might try to play trick with the Defendant and
left PW1’s name and telephone numbers at his pager. In order to determine whether it is possible that the
Defendant was making return calls to these messages, I have to gone through Defendant’s evidence
carefully.”
She then went on to deal in considerable detail and exhaustively
with the evidence relating to this possibility. She concluded on the evidence that there was no temporal
relationship between the appellant’s receipt of a call, purportedly from the
victim, and his then telephoning the victim so as to allow the possibility that
the appellant was making return telephone calls. It is important to realise that there was no record of the
victim’s telephone number telephoning the appellant, simply the appellant’s
oral evidence in this regard because he said these calls came in through his
pager and it was common ground that those pager records were not kept or not
kept for any substantial time as to the phone numbers of incoming calls
although they were kept as to the simple fact that an incoming call had been
made.
7. Accordingly,
the magistrate’s analysis of the evidence was directed to the fundamental
possibilities which formed the appellant’s case, i.e. that the appellant was
simply returning calls, and that these calls had been left by a prankster who
in making them also left the victim’s telephone number on the appellant’s
pager.
8. In
her conclusion after considering the evidence, the magistrate dismissed the
possibility that the calls made by the appellant to the victim’s telephone were
in the nature of return calls.
9. As
I have said, she examined the temporal relationship between incoming calls
to the appellant’s pager and the appellant’s calls to the victim and found
none. As an example of her
approach in this regard, she said :
“(4) I do not accept the 40 calls
(34 calls from the Defendant’s home and 6 from the Defendant’s mobile) made to
PW1 on 8th June, 2001 were return calls because 33 calls
made from the Defendant’s home telephone were made in the early morning (01:50 hours
to 03:58 hours) and the other 7 calls were made from 20:23 hours
to 23:43 hours while the 2 calls Defendant received were at
12:02 hours and 13:08 hours.”
Further, the magistrate said this in her Statement of Findings :
“… In considering whether there was any
possibility that the Defendant was responding to calls with PW1’s name and
telephone numbers left at his pager directly, I have to take account to the whole circumstance when the Defendant made
these calls. Defendant gave
evidence that when he called PW1, he received two different types of
message : One message was that PW1 did not exist and somebody was just playing
a trick, the other message was that PW1 did exist but he was not present. If the Defendant believed that the
calls at his pager were just a trick on him, there was absolutely no reason why
he would continue to make so many calls within a short interval. If the Defendant believed that PW1 was
there, after several unsuccessful attempts to reach him, why didn’t he leave a
message and asked PW1 to call him back?
Why did he keep on calling continuously?
Having
considered the whole circumstances and the evidence of the Defendant, I do
not accept his evidence that he was just making return calls to PW1.”
10. The
reasons given by the magistrate in this regard are direct and succinct. They revolve around the basic concept
that the appellant’s case and his evidence simply made no sense because the
persistent telephone calls he made to the victim bore no sensible relationship
to the return of incoming telephone calls.
11. The
magistrate, if she had wished, could have gone further and pointed out that the
inherently incredible foundation of the defence case and the appellant’s
evidence was to the effect that the appellant had genuinely, on some 170 odd
occasions over some six weeks, tried to telephone and make contact with
the victim, another doctor working in the same field as the appellant, but had
been unsuccessful in doing so.
That may be thought to be plainly nonsensical.
12. Another
complaint of the appellant is that the magistrate failed to take into account
the fact that the victim received telephone calls of a persistent nature from
another telephone number which could not be traced to the appellant and whose
user was unknown. But this does not,
in my judgment, render the magistrate’s conclusions in any way unsafe. Quite simply, those facts regarding
that other telephone number took the case no further one way or the other. To suggest that it supported the
defence case at trial of a third party telephoning the victim is wholly
speculative. The magistrate was
entitled to regard this aspect of the evidence, as she apparently did, as not
being of any significant probative value.
13. The
magistrate ignored also some two occasions when the appellant himself
received repeated calls on his mobile phone of a substantial number from a
particular telephone number on two or so days. On each of those two or so days some 20 odd calls
were received from this telephone number.
14. The
defence case was that this supported the possibility that a prankster existed
because the appellant was also himself a victim in the sense that on these two days
or so he received repeated telephone calls but it is important to realise that
the telephone number from which these calls came was the appellant’s own pager
number. In other words, the nature
and origin of these calls to the appellant’s telephone was completely
speculative and the evidence in no way established that they came from a single
source. The magistrate was
entitled to ignore, as being of any probative value, this uncertain and
speculative area of the evidence also.
15. In
short, the magistrate’s analysis effectively and properly led her to the
conclusion that there was no possibility the appellant was making return
calls. She further properly
concluded on the evidence that the prosecution had proven beyond reasonable
doubt that the appellant had no reasonable cause to make these telephone calls,
and that given the number of telephone calls made and their short duration,
they were made for the purpose of annoying the victim.
16. Finally,
the magistrate at no time reversed the onus of proof as complained of by the
appellant. She was plainly aware
the prosecution had to prove its case by establishing as one of the elements of
the offence that the appellant had no reasonable cause to make these telephone
calls. In this regard, the
magistrate said in her Statement of Findings :
“… I find that Prosecution has negated the defence of reasonable cause
beyond reasonable doubt.
I find that the calls were made without reasonable cause.”
17. It
is perhaps unfortunate that the magistrate referred to the defence of
reasonable cause. It is not a
defence. It is not a matter which
has to be considered only as an issue if the evidence in the case opens it up
or makes it available to a defendant.
It is an element of the offence which always has to be established by
the prosecution. But the
magistrate, as a matter of fact, found the prosecution had proven the appellant
had no reasonable cause and had done so beyond reasonable doubt. Accordingly, the appellant’s complaint
in this regard has no substance.
18. Nor
is there any substance in the appellant’s assertion that the magistrate in commenting
at the time of delivering her verdict in reference to the alleged calls
received by the appellant which he says he was simply returning, that :
“If these calls did exist then I have
to consider the circumstances when the appellant returned the call.”
also reversed the onus of proof. But all she was saying, as is apparent from her verdict as a
whole, is that she looked at all the evidence in determining whether any such
calls may have been made. There is
no merit in grounds two to four.
19. I return
now to the first ground of appeal.
That ground asserts that :
“The learned magistrate erred in finding
that the prosecution has proved beyond reasonable doubt that the Appellant did
make persistent telephone calls to the 1st Prosecution Witness (‘PW1’) between 1 May
2001 and 18 June 2001 when the evidence adduced by the prosecution clearly
demonstrates a discontinuation of telephone calls from the Appellant to PW1
during the period between 15 May 2001 and 31 May 2001.”
20. There
was no argument before me and it was not challenged that section 20(c)
creates a continuing offence. That
must be so. To prove the element
of persistence, the prosecution must establish that any defendant performed a
series of disparate acts, i.e. made a series of separate telephone
calls. “Persistently” is not
defined in the legislation, but it is a plain word with a plain meaning. The various definitions of the word and
its root in the Oxford English Dictionary
firmly embrace the concept of a continuation of acts or a repetition of acts.
21. In
the present case, by admitted facts produced before the magistrate, the
prosecution was able to establish that within the charged period of 1 May
2001 to 18 June 2001, telephone calls were made from the appellant’s
telephone on a very large number of occasions to the victim’s telephone. Some 170 odd telephone calls were
made by the appellant to the victim’s telephone during that time, but all of
those telephone calls, according to the admitted facts and according to the
telephone companies’ records admitted in evidence as P4 and P5, were made
during two distinct periods.
22. The
first of those periods was from 1 May to 14 May 2001. The second period was from 1 June
2001 to 18 June 2001. In
other words, during the charged period, there was a gap of 17 days from
15 May 2001 to 31 May 2001 inclusive during which no telephone calls
were shown to have been sent by the appellant to the victim. Indeed, in her Statement of Findings,
the magistrate says that the relevant period of calls made to the victim was
from 1 May 2001 to 14 May 2001 and from 1 June 2001 to
18 June 2001. She had
accordingly found that two separate periods of telephone calling had occurred
with a two week gap between them.
23. Mr Choy
for the appellant argues that this gap must mean that the magistrate’s finding
that the appellant made persistent telephone calls to the victim’s telephones
over the period of the charge was wrong in law as there was absolutely no
evidence to support the continuation of any such activity by the appellant
throughout the charged period. I agree
with Mr Choy to a somewhat limited extent. It seems to me that there were two separate periods of
persistent telephone calls adduced in evidence. These two periods were separated by a gap of inactivity
which lasted a considerable time, i.e. 17 days.
24. Accordingly,
there was sufficient evidence to allow the magistrate to find persistent telephone
calls had been made by the appellant at times during the charged period, but
that evidence did not establish the persistent nature of those telephone calls
throughout the whole of the charged period.
25. It
seems to me that to enable a charge to be properly drafted as an allegation of
a continuing offence, there must be evidence of the alleged offence continuing
over that charged period. It is
not fatal to the charge if the offence cannot be proven to have continued
precisely within the charged period.
In other words, if the evidence establishes the offence overruns or
underruns the charged period, then the offence is still made out.
26. But
in the present case, it seems to me that the evidence established two separate
periods of persistent telephone call-making by the appellant to the telephones
of the victim within the same charged period. A continuous offence is an offence only during the
period of its continuation. If it
stops for any material period, then it is complete as an offence at the point
of time when it stops. If the acts
charged start up again after that cessation, then it is not a continuation of
the original offence but a new offence, given proof of its elements. It is a matter of fact for a court to
determine whether any temporal interruption to the acts constituting a
continuous offence is of such a degree as to bring it to an end.
27. In
the present case, there was a gap of some 17 days during which there was no
actus reas at all proven against the
appellant, i.e. from the magistrate’s own findings the appellant did not
telephone the victim during that period.
On both sides of that gap between 1 May 2001 and 15 May 2001
and between 1 June 2001 and 18 June 2001, telephone calls were made.
28. It
seems to me that it may well be that if the magistrate, and perhaps counsel’s
duty was to direct her attention to this matter at trial, had considered this
matter then she may well have been driven to the conclusion that there may have
been evidence before her of more than one offence pursuant to section 20(c)
being committed during the charged period.
29. In
my judgment, evidence of two separate continuing offences was led in
support of a charge which related to, in its terms, only a single continuing
offence.
30. Accordingly,
the charge itself was not bad for duplicity. It being in the proper form and not in its terms alleging
two or more offences : R. v.
Greenfield (1973) 57 Cr.App.R.849, but the charge was defective in that
it charged only one offence and the evidence revealed two separate periods
of the making of persistent telephone calls. For this reason while not formally defective in the sense of
duplicity, the charge was substantially defective in that the evidence
demonstrated two offences may have been committed rather than a single
offence during the particularised period of the charge : R. v. Radley, 58 Cr.App.R.394 and R. v. Ballysingh, 37 Cr.App.R.28.
31. Further,
section 27 of the Magistrates Ordinance provides as follows :
“(1) Where it appears to the adjudicating magistrate that there is-
(a) a defect in the substance or
form of any complaint, information or summons; or
(b) a variance between the
complaint, information or summons and
the evidence adduced in support of it,
he shall, subject to subsection (2)-
(i) amend the complaint, information or summons if he is satisfied that
no injustice would be caused by that amendment; or
(ii) dismiss the complaint, information or summons.
(2) The adjudicating magistrate
shall amend the complaint, information or summons where-
(a) the defect or variance mentioned in subsection (1) is not material;
or
(b) any injustice which might otherwise be caused by an amendment would
be cured by an order as to costs, an adjournment or leave to recall and further
examine witnesses or call other witnesses.
(3) Following an amendment to a
complaint, information or summons, the adjudicating magistrate shall-
(a) read and explain the amended complaint, information or summons to
the defendant;
(b) give leave to the parties to call or recall and further examine such
witnesses as may be reasonably required by a party having regard to the nature
of the amendment;
(c) grant such adjournment as may be reasonably necessary to enable the
parties to call or recall witnesses and to prepare their cases;
(d) if he thinks fit, make an order that the complainant or informant
shall pay to the defendant such costs, not exceeding $5000, as may be
occasioned by the amendment; and
…” (emphasis added)
32. The
words “… where it appears to the adjudicating magistrate”, in my judgment, must
relate to the objective reality of the charge and evidence before him and not
to his subjective appreciation of it.
Accordingly, in this case, even though the variation between the
evidence and the form of the charge was not brought to the magistrate’s
attention, there was still a defect in the substance of the charge and, indeed
for the same reasons, a variation between it and the evidence adduced in proof
of it, and pursuant to the terms of section 27(1)(b), the magistrate
should have either amended the charge or dismissed it pursuant to
section 27(1)(b)(i) or (ii).
She did not do so.
33. But
if in this case, the divergence between the evidence and the form of the charge
had been brought to the magistrate’s attention in such a way as to alert her to
the need for an amendment she could have amended the charge in one of two ways. The magistrate could have split it into
two separate charges, each representing one of the separate periods during
which the offending phone calls were made, or the magistrate could have simply
shortened the period particularised in the existing charge so as to encompass
only one of those periods.
34. Section 119(d)
of the Magistrates Ordinance gives this court the power to make such order as
it thinks just, and by such order exercise any power which the magistrate might
have exercised. That subsection says :
“(d) the judge may by his order confirm, reverse or vary the magistrate’s
decision or may direct that the case shall be heard de novo by a magistrate or
may remit the matter with his opinion thereon to a magistrate, or may make such
other order in the matter as he thinks just, and by such order exercise any
power which the magistrate might have exercised; and any decision or order made
by the judge shall have the like effect and may be enforced in the like manner
as if it had been made by the magistrate;”
35. Courts
in the past have been reluctant to apply section 119(d) so as to amend
defective charges on appeal. That
is because at trial, any such amendment requires the magistrate to comply with
the provisions of section 27 including allowing, if reasonable, the
defendant before him to call or recall witnesses. That cannot be done by an appellate court in its exercising
of the magistrates’ powers under section 27(3) pursuant to section 119(d).
36. Accordingly,
in Fai Ma Trading Co. Ltd v. Lai
(1989) 1 HKLR, the Court of Appeal held that if an information was amended
on appeal from a magistrate’s conviction, the court should remit the matter
back to the magistracy for a trial de novo in the normal course rather
than dismissing the appeal. In my
view, that is the applicable principle in this case. Mr Choy in that regard has urged upon me that if the
charge before the magistrate was amended by me, as I propose to do, so as
to limit the charged period to 1 June 2001 to 18 June 2001, that may
well have, if it had been done at trial, had ramifications as to the evidence
which was called.
37. I somewhat
reluctantly agree that I cannot be sure that if the appellant had been
tried on the proposed amended charge, the course of trial would have been
identical : Chan Pui Cheung v. HKSAR,
HCMA364/1999. Mr Choy points
out, for one thing, that evidence of the pre-1 June 2001 telephone calls
may not have been admitted into evidence.
38. Accordingly,
I have considered the nature of the offence and the public’s interest in
these matters. It may well be that
this is a summary offence only, but it is an offence which can cause serious
disruption to an individual, particularly if conducted over a substantial
period as is alleged in this case.
For that reason, I conclude that the matter should be remitted for
trial before another magistrate on a charge amended so as to particularise the
charged period as being between 1 June 2001 and 18 June 2001.
| | (M.A. McMahon)
Deputy High Court Judge |
Mr
Daniel Ozorio, S.G.C. of the Department of Justice, for the Respondent
Mr
Edwin Choy, instructed by Messrs Haldanes, for the Appellant