HKSAR v. Mohammed Bashir Abdullahi

HCMA 16/2019

[2019] HKCFI 2239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 16 OF 2019

(ON APPEAL FROM KWUN TONG MAGISTRACY

CASE NO KTCC 1888 OF 2018)

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J U D G M E N T

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Introduction

1.The appellant was convicted after trial[1] of two counts of criminal intimidation[2], and was sentenced to a total term of 6 weeks’ imprisonment[3].

2.At the trial in the court below, the appellant, who was represented by counsel instructed by the Duty Lawyer Services, elected not to give evidence nor did he call any witnesses on his behalf. Now acting in person, the appellant appeals against the conviction.

3.The victim of both offences was a woman called Ann JD Lessiter who lived in the tiny village of To Kwa Peng in the New Territories where the appellant was also a resident there.

4.The prosecution case was very simple and straightforward. On two occasions in the space of 3 weeks, the appellant threatened to kill Madam Lessiter.

5.On the first occasion (14 April 2018), Madam Lessiter was out walking her dogs in the village, she chanced upon the appellant who would utter threatening words like “I will break your head and kill you. You don’t live in this village! Do you?”. Feeling scared, Madam Lessiter walked away from the appellant who followed her closely behind repeating those threats for a while.

6.About 3 weeks later on 5 May, Madam Lessiter was again out walking her dogs, this time with her maid, the appellant approached them brandishing a stick and threatening to kill her.

7.The defence was one of frame up- the appellant believed that Madam Lessiter was making up this story in order to have him evicted from the village. He never said those threatening words to her.

Grounds of Appeal

8.The appellant raised 3 points on appeal, namely,

(1) Insufficiency of evidence;

(2) Prosecutorial misconduct;

(3) Incompetence of defending counsel.

Ground 1

9.The appellant said that there was no sufficient evidence to support the magistrate’s verdict in that, and I quote, “I do not appear in all the photos the prosecutor’s presented in the trial as evidence. There is not any video or audio presented by the prosecutor at the trial with my voice or video of me.”

10.The factual issues at trial really boiled down to the question of credibility of witnesses. In accepting the testimony of the prosecution witnesses including Madam Lessiter, the learned magistrate said[4]:

“The court considered that the evidence of the prosecution witnesses was clear. They did not evade during the cross-examinations. They were not shaken during the cross-examinations. The court accepted their evidence and the court considered that what they told was the truth.”

11.I think the appellant has misconceived about the evidence against him - the prosecution mainly relied upon the testimony of the prosecution witnesses, particularly Madam Lessiter and her maid, and not on any real evidence like audio/video recordings. The witnesses had been cross-examined by his counsel thoroughly and the learned magistrate was alive to the conflict over whether or not an event of intimidation occurred.

12.Eventually, the learned magistrate accepted the evidence of the prosecution witnesses - these were matters properly within his province - unless the decision was shown to be plainly wrong, the appellate court would be slow to interfere. And I find nothing wrong with his reasoning in this respect.

13.Ground 1 fails.

Ground 2

14.At the time of trial, the appellant was a person of hitherto clear record, but due to a mistake made by the prosecutor, the court following a conviction was informed by the prosecutor that the appellant had a previous criminal record of “breach of condition of stay” which was at once disputed by the defence.

15.The parties eventually set the record straight and agreed that the appellant did not have any previous record. It was under these circumstances that the learned magistrate reviewed his decision taking into account the appellant’s clean record; having given himself the Berrada direction, he came to the same decision as before.

16.The appellant complained that the prosecution had adduced inadmissible evidence, i.e., a criminal record of somebody else, at trial in order to get him convicted.

17.Clearly, this is an unfortunate mistake but certainly nothing as near as misconduct on the part of the prosecutor, even less a case of introducing inadmissible evidence through the backdoor; it is only made known to the court after the appellant was convicted, and this is part of the normal course of proceedings.

18.The objection may be that the appellant had not been given the “Good Character” direction. The learned magistrate has properly exercised his discretion by way of review under section 104 of the Magistrates Ordinance reviewing all the evidence once again with the appellant’s good character in mind, and finally come to the same conclusion as before.

19.There is no merit in this complaint. Ground 2 fails.

Ground 3

20.The appellant complained that his counsel had failed to produce his medical report at trial showing that he got bitten by a dog about a year before, which he said would be a key to the success of his defence.

21.Undisputed was the fact that the appellant had been bitten by a dog about a year before the event in the instant case, and thereafter he was given tetanus shot at a hospital. The owner of the dog in question was never identified.

22.Assuming for the sake of argument, even if the dog in question belonged to Madam Lessiter, how did that advance the defence case of a frame-up? And remember this happened quite some time ago. In the circumstances, his counsel decision not to adduce his medical report was a correct one, and in my view, that would save his good points from becoming obscured in a mass of irrelevant details.  

23.There is no merit in this ground either.

24.Ground 3 also fails.

Conclusion

25.For the reasons given above, the appeal is therefore dismissed.

Mr Alan Chan, SPP (Ag.) of the Department of Justice, for the Respondent.

The Applicant appeared in person.