Case Detail

HCMA 95/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 95 OF 2005

(ON APPEAL FROM ESCC 2758 OF 2004)

____________

BETWEEN

	RAYMOND YAN KAI YIP	Appellant
	and
	HKSAR	Respondent

____________

Before: Deputy High Court Judge Carlson in Court

Date of Hearing: 28 June 2005

Date of Judgment: 28 June 2005

Date of Handing Down of Judgment: 8 July 2005

_______________

J U D G M E N T

_______________

1. Having dismissed the Appellant’s appeal against conviction in this matter I heard Mr. Harris on sentence after which I allowed the appeal by substituting a conditional discharge for 12 months (with a requirement that the appellant enter into a recognisance to be a good behaviour in the sum of HK$1,000 dollars). I indicated that I would give reasons later which I now do.

2. Having convicted the appellant, the Magistrate, Mr Eddie Yip Chor-man, then remanded him in custody for 21 days for a background report. He said at the time that he considered that a prison sentence was inevitable. On his re-appearance the Magistrate imposed a 21 day prison sentence which enabled the Appellant to be immediately released. At the time of the remand in custody it had been submitted on behalf of the Appellant of this was a case for a fine, which the Appellant was well able to pay as he earned between HK$40,000 and $50,000 a month.

3. Mr Harris has made strong complaint about the sentence on a number of grounds. Firstly, he submits that a prison sentence should never have been imposed nor contemplated. That being so the remand in custody is to be strongly deprecated because, he submits, that this amounts to a misuse and indeed an abuse of the remand to produce a result whereby the Appellant was given a three week taste of custody only to be immediately released by virtue of a short term of imprisonment which he had served whilst on remand for a background report. That Report was never going to make the Magistrate any the wiser about the Appellant, because the Magistrate already knew much about him having regard to the evidence that he had given about his good character, his employment and police commendations. In any event the Appellant was represented by an experienced solicitor who was well able to fill in any gaps about his personal circumstances.

4. In order to decide whether this submission has any substance it is necessary to start with an examination of whether a custodial sentence, no matter how short, was on the cards. If it was not, then I would have thought that there could be no possible justification for a remand in custody in order to obtain a background report which could have been obtained by remanding the Appellant on bail.

5. Most of these offences of criminal intimidation have a triad linked flavour about them, be they actual triad cases or committed by persons claiming to have a triad background or connection. In such cases a custodial sentence would be very much in the contemplation of the court and a remand in custody for reports, if that is the course that the court wishes to adopt, would be perfectly correct.

6. This, in my judgment, is not one of those cases. It concerns a man of perfectly good character, a hitherto entirely respectable and law abiding individual who was, by virtue of being something of a busybody, in the habit of complaining about the standard of work of the security and management staff at the building where he lived. On this occasion he had gone impermissibly far by bringing a Pakistani man to the complainant (PW3) and indicating that this man would beat up PW3, a member of the building management staff and about whose standard of work the Appellant had in the past expressed himself dissatisfied with. One can immediately realize that this threat and the form that it took would alarm any person of reasonably firm disposition. I have already held that the Magistrate was amply justified in convicting the Appellant for this offence.

7. Against this, the Appellant, as I have already indicated, was of positively good character who had received police commendations but who, by virtue of some defect in his personality, was prepared to be something of a nuisance by habitually complaining about the security staff when a more reasonable person would have been prepared to put up with any shortcomings by the staff.

8. In my judgment, having regard the facts of this case, an immediate custodial sentence was never going to be on for a person of the Appellant’s standing in terms of his character and background. This was not a case calling for such a sentence. This being my view, a prison sentence was wrong in principle. The Magistrate should have first addressed himself to the full range of other sentencing options before arriving at the conclusion that immediate custody was what was called for.

9. In my judgment this matter called for either a substantial fine to show the court’s disapproval; a fine that reflected the anxiety caused by the Appellant’s conduct and having regard to his means which were ample or, alternatively, perhaps a Community Service Order. That order would have required reports which could have been obtained by a remand on bail. This was not a case where it was being suggested that the Appellant was going to abscond before sentence.

10. In these present circumstances, now that the Appellant has already served his prison sentence, I do not consider either of those options would be correct. Such a course would add insult to injury. Consequently, in these circumstances, I have decided to impose the lesser sentence of a conditional discharge which the Appellant has consented to through his counsel. A conditional discharge would have been too lenient a sentence to impose immediately following his conviction but it is now right given what has happened to the Appellant who, in my judgment, should not have been sent to prison.

11. This then brings me to the question of the remand in custody. Was it wrong for the Magistrate to have adopted that course only to let the Appellant out at the end of it? I have read the transcript of the exchanges between the Appellant’s solicitor and the Magistrate after the report had been obtained. The Magistrate immediately indicated that he was going to let the Appellant out by imposing a 21 day (the length of the remand in custody) sentence.

12. It seems to me that Mr Harris could not have complained in the way that he has, had the 21 day sentence been imposed immediately after the conviction because inevitably, the Appellant would have been bailed pending his appeal having regard to the shortness of the sentence. Whilst it is possible to get bail from the High Court following a remand in custody for reports, experience shows it is more difficult to achieve because the High Court will be less ready to interfere where the sentencing process is not yet complete, save in the clearest of cases.

13. In this matter I am not prepared to criticize the Magistrate by saying that he has misused the process of remand. Nevertheless, I would wish to observe that a remand in custody should not be made before sentence unless it is very much on the cards that some form of custodial sentence is to be imposed, particularly in the case of someone of good character. If a remand in custody is ordered in cases where a custodial sentence is not likely then this may give the impression that the court is wanting to punish a defendant on an ‘interlocutory’ basis without ever having the intention of ultimately imposing a custodial sentence.

14. I appreciate that in some classes of case certain reports can only be obtained by a remand in custody, such as for a DATC Suitability Report or, for younger offenders, when the court would wish to call for Detention Centre or Training Centre Suitability Reports. In most of these cases the calling of such reports will be amply justified by the facts of the case and by the defendant’s age, character and antecedents.

15. These observations are intended to relate to the category of case where a custodial outcome is unlikely. If a report is called for then that should usually be on bail. When the report is received and based on its contents the court decides that a more severe sentence is appropriate then such a sentence can be imposed on the return day for the report or, further reports may need to be obtained, which based on the change in circumstances disclosed by the first report following the remand on bail, such reports can properly be called for by remanding the defendant in custody.

	(Ian Carlson)
	Deputy High Court Judge

Mr Graham Harris, instructed by Messrs Robertsons, for the Appellant

Miss Mary Sin, of Department of Justice, for the Respondent

HCMA95/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 95 OF 2005

(ON APPEAL FROM ESCC 2758/2004)

____________________

BETWEEN

	HKSAR	Respondent
	and
	YAN KAI YIP	Appellant

____________________

Before: Deputy High Court Judge Carlson in Court

Date of Hearing: 28 June 2005

Date of Judgment: 28 June 2005

____________________

J U D G M E N T

____________________

1. Over the course of a three-day trial in November last year at the Eastern Magistrates’ Court, the Appellant was tried on a charge sheet containing two charges of criminal intimidation contrary to Section 24(a)(i) of the Crimes Ordinance Cap. 200.

2. The magistrate, Mr Eddie Yip Chor-man, having reserved his decision for three weeks, acquitted him on the 1st charge and convicted him on the 2nd for which he sentenced him to a term of 21 days’ imprisonment. He now appeals against his conviction and sentence.

3. It is essential to an understanding of this case to set out the background to the matter.

4. The Appellant is a 39-year-old man of previous good character. He has a business as a film distributor. He would appear to be a public-spirited person who, on a number of previous occasions, has reported criminal activities to the police in the vicinity of his home in Wanchai which have resulted in successful prosecutions by the police of people involved in offences drawn to their attention by the Appellant. He has received letters of commendation from the police which both the magistrate and I have seen.

5. He is, therefore, a perfectly respectable person who Mr Harris, who appears for him on this appeal, describes as somebody of positive good character meaning that he is deserving of even greater consideration in terms of the assessment of his case as to his credibility as a witness, he having given evidence in the trial, and as to his propensity, but perhaps more accurately expressed, lack of propensity, to commit crimes such as these. This is a matter to which I will need to return presently.

6. The Appellant, at the time of these events in June 2004, used to reside at Li Chit Gardens in Wanchai. One matter is very clear - which Mr Harris accepts and, indeed, relied on to some extent - which is that the Appellant was a very demanding resident at this block of flats. He appears to have got it into his head that the management staff responsible for the security and administration of the building, were not up to the mark. He thought that they were “slackers”, some sleeping on the job, others reading the racing form, or listening to the radio when they should have been about their duties. This, he would not tolerate, and he made it his business to regularly complain about their conduct. It is this attitude by him that was to set the tone and provide the background to the events of 8 and 19 June 2004 which are the two dates when he is said to have committed two separate offences of criminal intimidation against two members of the management/security staff.

7. Before I go to the grounds of appeal, it is helpful to consider the shape of the trial before the learned magistrate and have regard to his statement of findings in a general way which, as I have already observed, he acquitted the Appellant on one charge and convicted him of the other.

8. The prosecution called a number of the security staff in support of each charge. As to the 1st charge relating to 8 June, the Appellant was returning home at 5.30 am after his morning exercise to find PW1, an elderly guard, asleep on a bench outside the building. He woke him up and asked him why he still needed to work, having regard to his old age. This conversation appears to have been conducted on a perfectly friendly basis. During the conversation, another resident of the building ,who had obviously become aware of the Appellant’s reputation as someone who was in the habit of complaining about the staff, asked PW1 if the Appellant was telling him off. PW1 did not reply, whereupon this person accused the Appellant of telling PW1 off. A quarrel developed between them. PW1 did not intervene to explain that they were just passing the time of day and went into the lobby. The person who had picked this quarrel with the Appellant then took the lift upstairs. This left the Appellant furious because PW1 had not explained what was going on so that he turned on PW1 and, according to the prosecution, he threatened to beat him up when he saw him next. PW1 became frightened. He left to change his uniform and telephoned a senior colleague to call for a substitute. When he came out, having changed, the Appellant was still there scowling at him and again threatened to beat him up. PW2, another guard, had been on duty nearby and had tried to calm everyone down when the other resident was having his argument with the Appellant. The Appellant’s evidence was that he had been upset with PW1 because he had not explained matters to this resident who had claimed membership of the 14K Triad and was making himself thoroughly unpleasant. But apart from being upset with PW1, he made no threat to him. The magistrate, in considering the evidence in support of this charge, held that although PW2 had been a good witness, there were differences between his evidence and PW1’s evidence as to what the Appellant had said. PW1 had been confused by all of this and PW2’s evidence reflected a milder tone by the Appellant that could not support a version of threats amounting to proof of the charge, hence the acquittal of the Appellant on this.

9. As to the offence alleged on 19 June, the main prosecution witness was PW3 who said that at about 7 am, he had patrolled the garden outside the building. The Appellant then appeared and called PW3 to come out, he having gone into the building after his patrol. The Appellant was with a Pakistani man and he told PW3 the man was there to see who he was and that if, sometime in future he were to be beaten up, he would know why. The Appellant then left with the Pakistani. This frightened PW3 who reported the matter to PW5, his superior who advised him to tell the police which he did a little while later.

10. The Appellant’s account was wholly different. He told the magistrate that he returned from his job to find the Pakistani sleeping on the bench outside the building. He called PW3 to come out and told him to move this man on, which PW3 seemed unwilling to do. He told PW3 he would report him and PW3 said he could do as he pleased. The magistrate was satisfied so that he was sure that PW3’s version was correct and that the Appellant had not given him a truthful account.

11. Having regard to the content of PW3’s evidence, the magistrate held that the offence had been made out and he convicted the Appellant.

12. The statement of findings, part of which have come under severe but courteous criticism from Mr Harris, has set out the course of the trial in a perfectly sensible way. Before I go to the contents of the document, I should observe that the magistrate has, in a very logical way, described the charge: issues calling for decision, prosecution evidence on each charge in summary form, and the Defendant’s evidence. There then appears a summary of the defence solicitor’s final speech, the final day of the trial having been set aside for this and, lastly, the magistrate’s findings on the evidence.

13. What is rather unsatisfactory, I’m bound to say, although Mr Harris does not rely on this is that the magistrate has analysed the Appellant’s evidence first and found that evidence not to be credible. He then goes on to deal with the prosecution witnesses saying why, on analysis, he believed them. I would caution against such an approach because it might give the impression the court has reversed the burden of proof. It is more proper to deal with an analysis of the prosecution evidence first which may show irreparable flaws in its case, even before one comes to the defence evidence. Whilst this is an undoubted shortcoming in this statement of findings, it is perfectly clear from the statement of findings as a whole that the magistrate was perfectly clear where the burden lay and so no point can be taken on this occasion, although the cases do show that in the past appeals have been allowed where that course has been adopted by the magistrate.

14. Before I go to the grounds of appeal, it is worth observing from the statement of findings taken as a whole, that the magistrate was well aware of the issues that he had to resolve. This was a classic credibility case. He had to decide who was telling the truth and who was not. That having been said, he had to demonstrate an appreciation of the ingredients of the offences before him, what elements needed to be proved, and demonstrate how he came to resolve the crucial issues of fact, remembering that in his assessment of the defence case, he had before him a man of good character with all that this entails.

15. The first ground of appeal concerns what Mr Harris has characterised as discrepancies in the evidence of PW3 which he says the magistrate should have had regard to before explaining why he was prepared to accept PW3’s evidence and go on to convict. Mr Harris draws attention to page 84 of the transcript from letters K to O. This refers to complaints that the Appellant was someone who was well-known to the guards as a person who would complain about them. The passage at page 84, K to O is as follows:

“ Q. You’d agree with this though, would you not, that Mr Yan is well-known amongst the security guards for making complaints against you?

A. He only complained against the nightshift guards.

Q. You see, I suggest he made a complaint against you about one month before 19 June in relation to you using headphones when you were at your security desk.

A. Yes.

Q. Yes. And that was done, wasn’t it, in the open and in front of your superior Mr Chan.

A. Yes.”

16. The complaint as to this is that this should have been referred to by the magistrate as a matter going to PW3’s credit. For my part, I do not read this passage as having any real impact on the witness’s credit. Once he was confronted with the matter of the headphones, he readily accepted that this incident had taken place. It did not call for any particular analysis or warning to himself by the magistrate.

17. The other passage is at page 84, letters A to Q. This refers to an incident on 20 June, the day following the date on which the second offence is said to have occurred. The Appellant saw PW3 in the lobby with earphones on, listening to the radio. This was put to him and he denied that this was so. But then he appears to have accepted that he did have them on to listen to the weather forecast because that is what they were required to do when the No. 8 typhoon signal was up. This sufficiently identifies the point. I do not propose to set out the passage in the transcript. It is there to be read.

18. Mr Harris says that this is another shift in the witness’s ground which the magistrate should have been alive to. He has failed to refer to it and he should have done. My sense of it is that this is nothing more than the witness merely recollecting a situation as it was being put to him five months after the event, and explaining himself. The magistrate cannot, in my judgment, be properly criticised about this.

19. Mr Harris next turns to how the magistrate dealt with the issue of the Appellant’s good character. At paragraph 20 of the statement of findings he said, “I am aware of the defendant’s clear record. I consider his evidence.” Mr Harris accepts that the cases show that a professional magistrate, even if he does not refer to good character, is taken to know of the applicable principles. But in this instance, he complains that this limited reference to character tends to demonstrate a failure to recognise the importance of character in this case, both as to credit and propensity. If that may be so, Mr Harris submits that the conviction cannot stand.

20. It is clear that the magistrate was very much aware of the Appellant’s good character. He set out his credentials in full at paragraph 16 of the statement of findings before his summary of the Appellant’s evidence.

21. Nevertheless, I am bound to say that the magistrate’s very limited remarks on character at paragraph 20 which are, of course, brief, could have been more felicitously expressed. What I am prepared to get from this passage is that he knew of the Appellant’s good character and the evidence that he had given in support of his good character. These remarks cannot, in my judgment, detract from the general position that, as a general rule, a professional and, in this case, experienced magistrate, was alive to the effect of character and therefore used this evidence properly. I am certain that this ground, although persuasively argued, cannot succeed.

22. The third ground complains that the magistrate failed to sufficiently identify the ingredients of the charge. It should be observed that this is not a legally complicated offence and the magistrate did, after all, acquit on the 1st charge where he appeared to be well alive of what was required before he could convict. It is, of course, better to set out more precisely, than is the case here, what the offence entails. At paragraph 28, albeit by a side wind, he said, “It is abundantly clear that the defendant orally threatened to cause injury to this person and alarm him.” That is sufficient, in my judgment, although it would have been better to have set out the contents of the offence earlier on and separately. Nevertheless, as I observed in the course of the argument, drafting a statement of findings is not an essay-writing competition. Some will be better and clearer than others. On this occasion, the magistrate has shown a sufficient understanding of what was required. This ground must therefore also fail.

23. Ground 4 refers to an alleged failure by the magistrate to properly recite the crucial evidence as to the threat made which Mr Harris has identified from the transcript. He is, of course, correct about that. But I am satisfied that the gravamen is there and, from the statement of findings as a whole, it is clear the magistrate understood the evidence and the allegation. The conviction cannot be disturbed on this ground.

24. Grounds 5 and 6 I can take together. Ground 5 says that there is no balanced analysis of the defence case, and 6 says that, in the overall analysis, the magistrate did not sufficiently have regard to the bad blood between the Appellant and the guards which might have motivated them to provide a false report to the police and subsequently in the way that they gave evidence before the court.

25. Every case is different. Some cases will require a magistrate to provide a detailed account of his thought processes; others will not. This is not a complex case. It seems to me from an overall reading of what the magistrate has written that he was well aware of what was going on here and he approached his task with care as he demonstrated in acquitting on the 1st charge. I am not prepared to say that in believing PW3 and disbelieving this, hitherto blameless and respectable, individual his finding ought to be set aside for want of any detailed demonstration of how he came to that conclusion.

26. I am entirely comfortable, based on this statement of findings, that this conviction was a correct one and that the appeal must therefore stand dismissed.

Ian Carlson
Deputy High Court Judge

Mr Graham Harris, instructed by Messrs Robertsons, for the Appellant

Ms Mary Sin, of the Department of Justice, for the Respondent

RAYMOND YAN KAI YIP v. HKSAR

Related cases with same parties

Files (2)

“	Q.	You’d agree with this though, would you not, that Mr Yan is well-known amongst the security guards for making complaints against you?

	A.	He only complained against the nightshift guards.

	Q.	You see, I suggest he made a complaint against you about one month before 19 June in relation to you using headphones when you were at your security desk.

	A.	Yes.

	Q.	Yes. And that was done, wasn’t it, in the open and in front of your superior Mr Chan.

	A.	Yes.”