HKSAR v. Lam Kim Wan

HCMA 384/2020

[2021] HKCFI 2533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 384 OF 2020

(ON APPEAL FROM TMCC 171 OF 2020)

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.The Appellant was charged with three counts of claiming to be a member of a triad society, contrary to s20(2)  of the Societies Ordinance, Cap 151, under Charge 1, 3 and 4; one count of criminal intimidation contrary to s24(a)(i)  of the Crimes Ordinance, Cap 200, under Charge 2 and one count of unlawful assembly contrary to s18(1)  & (3)  of the Public Order Ordinance, Cap 245, under charge 5.  He was acquitted of Charge 1 at the end of the prosecution case on a submission of No Case.  He was convicted after trial before Ms Frances Leung, Magistrate, on 20 November 2020, on the remaining four charges.  On 3 December 2020 the appellant was sentenced to 15 months’ imprisonment which was made up as follows:

Charge 2	Criminal Intimidation	6 months’ imprisonment
Charge 3	Claiming to be a triad	6 months’ imprisonment
Charge 4	Claiming to be a triad	9 months’ imprisonment
Charge 5	Unlawful assembly	6 weeks’ imprisonment
	Total:	15 months

2.By his notice of appeal dated 3 December 2020, the Appellant appeals his conviction in respect of Charges 2 to 4 only, on the grounds that it was against the weight of the evidence.

THE PROSECUTION CASE

3.The prosecution called 3 lay witnesses (PWs 1 to 3)  and a police expert upon triad culture (PW4).  PWs 1 to 3, who are 3 of 8 brothers, have known the Appellant since they were young and they live in the same village.  It is a close knit and inter-related community.  At the time of the alleged offending, which is said to have occurred on the night of 3 February 2020, PW1 and the Appellant were having an ongoing dispute over a piece of land (‘the Land”)  which the Appellant occupied for business purposes.  The circumstances of that dispute are not relevant to this appeal.  Having read the evidence, the Court is not at all surprised that there may have been a significant misunderstanding as to the terms of an intervening oral agreement reached between PW1 and the Appellant. It matters not who was in the right or wrong.  The events of the evening of 3 February stand on their own.  The Magistrate would have understood full well the nature of this dispute between members of the same extended family and the heightened emotions which would necessarily ensue.

4.It is not in dispute that the Appellant and PW1, Lam Shu-fat, spoke to each other by telephone several times on 3 February 2020 between 10.20 pm and 10.38 p.m.  The prosecution say that the Appellant threatened PW1 during these calls including saying that he would ‘chop him’.  A third party was passed the phone by the Appellant and that person said he was Wa Tau of the Tin Sum No 14 triad society.  He also threatened PW1 and said that he would ‘hit him’ if he saw him.  The most telling piece of evidence within the prosecution case was the end of PW1’s evidence in chief:

“He was just threatening me. He would chop me if he see me but he would not be able to chop me if he was not able to see me. He wanted to threaten me to let him use the piece of land unconditionally and he would not pay me any rent. On that day I made a phone call to him so as to urge him to pay the rent because every month I pay $12,000 to rent that piece of land.[1]”

5.PW2, Lam Ping-ki, lived in House 178 in Shek Po Tsuen.  PW3, Lam Siu-ting, lived in House 127A.  They are brothers of PW1.  At 10.35 p.m,PW2 received a phone call from the Appellant who told him that he was coming to Shek Po Tsuen to look for PW1.  The Appellant said that he would be coming with a group of people in order to discuss the land dispute with PW1.  At 10.40 p.m. the Appellant arrived outside of House 127A with a group of around 20 people.  House 127A was occupied by PW1 from time to time but also another brother and his mother.  PW1 was not in the House on the night in question.  The Appellant called PW2 and claimed to be a member of the 14K.  Once again Wa Tau took over the phone and told PW2 that the whole group outside of House 127A were members of 14K and that PW1 was to be handed over immediately.  He threatened to damage property, set fires, chop people, and said they were carrying knives.

6.At about the same time, PW3, who lived in House 127A, went to the entrance of the house and saw the Appellant and the group of 20-odd people.  He had overheard the Appellant speaking to PW2 and telling PW2 that he was a member of 14K.  He also overheard everything that Wa Tau had said when he took over the phone.  Once the phone call was over, PW2 had gone to the roof of his own house and could see what was happening outside House 127A.  At some point, the Appellant had taken hold of the collar of PW3 and asked for PW1.  He told PW3 that he was a member of the 14K.  PW1 was not present.  Eventually the Appellant and the whole group left.  Needless to say, PW1 to 3 had all said they were scared by these threats.

7.There was admitted evidence by way of CCTV [P1], which showed the Appellant in the vicinity of the village, going to House 127A and being followed by a group of people who remained with him whilst outside that address and thereafter left with him.

THE DEFENCE CASE

8.The Appellant was a 55 year-old man of good character.  He alleged that it had been PW1 who had invited the Appellant to his Shek Po Tsuen home to discuss the land dispute.  PW1 had been angry with him earlier, when speaking on the phone and had sworn at him.  He had gone to House 127A because PW1 had invited him to do so.  He denied having threatened PW1 on the phone.  He accepted that he had gone to House 127A but the other people present were simply passers-by as the house was near the main road and at the entrance to the village.  He also accepted that he rang PW2 at that time but denied making any threats to PW2 or to saying that he belonged to the 14K. He had called PW2 because PW2 had previously invited him to call if he wished to discuss ‘the company’[2]. The Appellant was only outside House 127A, because he had been asked to pick up another of the Lam brothers, Lam Fu-hing.  As for PW3, the Appellant said PW3 had arrived on the scene and the Appellant had told him to go away as it was none of his business.  He denied having mentioned the 14K or threatening PW3 including holding him by the collar.

9.The Appellant said that he had no intention of continuing to occupy the land and therefore had no motive to threaten PW1 to 3.  He accused PW1 of threatening to send a Sun Yee On Pakee Foo to deal with the problem between them at an earlier stage, in December 2018.  He also accused PW1 of reciprocating at a later stage after the events of 3 February 2019.

THE GROUNDS OF APPEAL

10.There are two grounds of appeal:

Ground 1

The learned trial Magistrate had erred in law and/or on the facts by failing to consider and/or show that she had considered a significant aspect of PW1’s testimony during the telephone conversation with the Appellant on 3 February 2020, which was also a collateral issue going to the credibility of PW1 and the other prosecution witnesses, thereby rendering the convictions unsafe and unsatisfactory.

Ground 2

The learned trial Magistrate had erred in law and/or on the facts by failing to sufficiently consider the background of the dispute between the prosecution witnesses and the appellant, thereby rendering the convictions unsafe and unsatisfactory.

Ground 1

11.As to Ground 1 and the background to 3 February 2020, Mr Boyton, who was Counsel below, appears to rely upon his own cross-examination of PW1[3]; the evidence of the appellant as summarised by the Magistrate in her Statement of Findings[4] and her later analysis of the evidence[5].  So far as Mr Boyton’s cross-examination of PW1 is concerned, under which PW1 did not agree with the allegations put to him, Mr Boyton well knows, that when a witness denies an allegation put to him, there is no evidence, without more, as to that allegation.  Mr Boyton is therefore bound to rely upon the evidence of the Appellant but he has not sought to put that evidence before the Court.  He seeks to rely instead upon the summary by the Magistrate.  That being the case, I have nothing before me to compare her summary against and therefore nothing to undermine it as being anything but an accurate and fair account.  The creditworthiness and veracity of all witnesses is a matter for the magistrate.  Mr Boyton also knows that this Court will not interfere with such an analysis without good reason, as the learned Magistrate had the benefit of seeing the witnesses at first hand.  The Magistrate chose to believe the prosecution witnesses and disbelieve the account given by the Appellant.

12.Under Ground 1, Mr Boyton then seeks to rely on post-event evidence to support his argument that the Magistrate had not sufficiently considered the whole background and context to the dispute.  Post-event evidence in the circumstances of this case was irrelevant and inadmissible as it did not go to issue before the Court.  If the Magistrate erred at all, it was to allow Mr Boyton to adduce this evidence.  The idea that, even if proven, PW1 and others had taken matters into their own hands and continued the dispute with the Appellant in a tit for tat manner at some later date, is somehow relevant to whether the Appellant did as alleged at some earlier date, is misconceived.  It is clear from the papers which Mr Boyton thought fit to put before the Court, that the Magistrate was very much alive to the background to this dispute and the nature of the relationship between them.  There was no need to rehearse the convoluted history to the dispute over the land, it was self-evident there were grievances on both sides.  It was not for the Magistrate to resolve that dispute.  This was a criminal trial for claiming to be a triad, criminal intimidation and unlawful assembly.  The facts were straight forward and as to the unlawful assembly were supported by CCTV.  That same CCTV undermined the Appellant’s case on unlawful assembly and laid the foundation for the Magistrate’s findings as to veracity, which are unassailable as to that charge and of considerable weight in consideration of his evidence upon the other charges against him.

Ground 2

13.This Ground is in similar terms to that at Ground 1.  The background to the grievance between the parties was aired by PW1.  Little challenge was made to that evidence other than an allegation by Mr Boyton suggesting that PW1 took matters into his own hands in like style at a later date.  In the event PW1 accepted, to his credit, that there was a later altercation and that the police were called.  The Magistrate was well aware of the issue which had triggered the confrontation and took into consideration the relationship between the prosecution witnesses and the Appellant.  There was no need for her to go further than that.  The situation was a common one and she avoided taking sides in that dispute.  She focused upon the issues at hand, which were whether the Appellant had claimed to be a triad member, whether he had criminally intimidated PW3 and whether he had taken part in an unlawful assembly.  Given the background, the case inevitably turned upon whom the Magistrate believed and she believed the prosecution witnesses, having warned herself appropriately.  This Ground has no merit.

CONCLUSION

14.The Magistrate assessed all relevant evidence and correctly applied the relevant legal principles.  This appeal does not turn, as Mr Boyton suggests, on whether the Magistrate should have put her detailed reasoning into her Statement of Findings, it turns upon the Appellant’s claim that the prosecution witnesses should not have been believed.  In other words, on the Magistrate’s findings on credibility and veracity.  She rejected the evidence of the Appellant.  She gave her reasons for so doing.  His case was not supported by the CCTV and was significantly undermined thereby even in the face of reminding herself of the Appellant’s good character and the possibility of collusion by PWs1 to 3.  In essence, she found the logic of the remainder of his case wanting and I agree with her. Where Counsel advances irrelevant, inadmissible or peripheral matters in trial, it is not incumbent upon the Magistrate to deal with each and every point and uphold or discount it.  The function of a trial judge is to ascertain the principles to be applied, decide upon the relevant evidence to which those principles are to be applied and thereafter, explain how the court carried out that exercise to achieve the resulting verdict.  This Magistrate did exactly that.

SENTENCE

15.Mr Boyton, at the suggestion of the Court, sought leave to appeal sentence.  He pointed out that this matter had taken some time to come to trial through no fault of either party but that it had been hanging over the head of the Appellant for some time, which did not help to ease tensions within the community.  The Appellant, a man of heretofore good character has reached the age of 55 without a criminal record and there was considerable history to these events.  I note also that whilst there was a lot of rhetoric, the crowd soon left and there was no further such incident in the immediate aftermath which could be laid at the door of the Appellant.  He spent three months in prison before he was granted bail.  There is merit in seeking to ease the tensions within the community and not to add fuel to the fire.

16.This appeal has no merit.  The appeal against conviction is dismissed.  Leave to appeal against sentence out of time is granted.  The sentence of 15 months’ imprisonment is substituted for 15 months’ imprisonment suspended for a period of two years.  There will be no order as to costs.

Ms Claudia Ng, SPP of the Department of Justice, for the respondent

Mr David Boyton, instructed by Littlewoods, for the appellant