Secretary for Justice v. Lai Chee Ying

HCMA 138/2021

[2021] HKCFI 3778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 138 OF 2021

(ON APPEAL FROM WKCC956 OF 2020)

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J U D G M E N T

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1.The Respondent was charged with one count of Criminal Intimidation contrary to Section 24(a)(i) of the Crimes Ordinance Cap. 200. The Particulars of Offence alleged that the Respondent had threatened Xwith injury to his person, with intent to alarm him on 4 June 2017 when X was discharging his reporting duties in Victoria Park. The Respondent pleaded not guilty to the charge. After hearing all the evidence, the Learned Magistrate Madam Chung Ming Sun (the Magistrate) acquitted the Respondent.

Undisputed Facts

2.X had been working as a reporter for the Oriental Daily News since August 1995.  In or around September 2014, X was assigned to focus his reporting duty on the Respondent.

3.On 4 June 2017, there was a public gathering at night in the Victoria Park.  X was assigned to go there to do the filming.  At about 1910 hours, X started to film and take photographs of the Respondent.

4.At about 1915 hours, the Respondent approached X and pointed his finger at X.  The Respondent then scolded X.  Parts of the scolding incident was captured by a colleague of X who was filming nearby.  The video showed that the Respondent pointed his finger at X and said: “I will definitely mess you up, I will definitely mess you up, I now tell you. (我實搞你，我實搞你，我依家話比你聽).”.  X then replied: “We will not come that close. (我哋唔會行咁埋嘅).”. The Respondent then said: “I have fxxking taken photos of you (我影X咗你相).” (The first scolding incident). 

5.In his reply, X said: “I will not come that close, put your mind at ease.  I won’t get in your way. (我唔會行咁埋嘅，你放心啦，唔會阻你嘅).”. The Respondent then walked away.

6.After walking for a few steps away, the Respondent suddenly turned back and used his finger to point to X.  The Respondent scolded X with foul language. (The second scolding incident).  

7.The Respondent then walked away but returned several seconds later and scolded X again. (The third scolding incident)

8.X continued to film the Respondent from 1930 to 2200 hours.  After the incident, X consulted a psychiatrist between June and August 2017 on three occasions and was diagnosed of “adjustment disorder with depressed mood” after the first consultation on 28 June 2017.  On 16 August 2018, the police interviewed the Respondent. 

The Magistrate’s Determination

9.The allegation against the Respondent was essentially focused on the first scolding incident where he said: 

(i)  I will definitely mess you up, I will definitely mess you up (我實搞你，我實搞你);

(ii)  I have fxxking taken photos of you (我影X咗你相). 

10.The Magistrate found that the Appellant had not proved beyond reasonable doubt :

(i)  that the Respondent threatened X with personal injury ;

(ii)  that the Respondent intended to alarm X.

and acquitted the Respondent on 3 September 2020.

Legal Issues

11.The Appellant appealed against the Magistrate’s determination by way of Case Stated pursuant to Section 105 of the Magistrates Ordinance Cap. 227.  The case was delayed because the Magistrate refused to sign the case prepared by the Department of Justice.  On 21 June 2021, the Magistrate signed the case after an Order of Mandamus issued by this Court.  The question of law stipulated by the Appellant for the case is as follows:

“As a result of my two findings:

(i) that the words ‘I will definitely mess you up, I will definitely mess you up’ were ambiguous and not amounting to ‘threat to injure’,

(ii) that ‘it was probable that the Respondent’s words were wild and whirling and he blurted them out without the requisite intention’,

whether my determination to acquit the Respondent based on those two findings was perverse in the sense that no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to that determination?”

Discussion

12.It is to be noted that this is an appeal under Section 105 of the Magistrates Ordinance.  Different from an appeal under Section 113, an appeal by way of Case Stated is not an appeal by way of rehearing.  This marks the difference in approach as to the evidential aspect of the case.  In short, this Court would not be in a position to re-assess the weight of the trial evidence including the oral testimony of witnesses and the weight attached to the Respondent’s interview held more than one year after the incident.  An appeal by way of Case Stated is essentially a review by the appellate court on the narrow ground that there was an error of law or an excess of jurisdiction. 

13.Where a magistrate came to a conclusion or finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to, this was an error of law, often described as a “perverse” conclusion or finding.  In order to find perverseness, the Appellant must establish that the Magistrate misdirected herself or misunderstood the facts, took into account irrelevant considerations or overlooked relevant considerations.

14.For the offence of criminal intimidation, McMullin J held in Lo Tong Kai v The Queen [1] that:

“What the prosecution must show upon a charge under section 24 of the Crimes Ordinance (a provision which is modelled closely upon section 503 of the Indian Appeal Code) is that the person making the threat intends to cause alarm to the person to whom the threat is made or that the threat itself is of such a kind that a person of ordinary firmness would be affected by it. In deciding these matters, as it seems to me, the context of the circumstances out of which the threat has arisen are of paramount importance to be considered. The test involves both objective and subjective considerations inasmuch as (to quote the commentry upon the Indian section which appears in the 22nd Edition of the Law of Crimes by Ratannal and Dhirajlal):

‘The question whether a threat amounts to a criminal intimidation or not, does not depend on the nerves of the individual threatened; if it is such a threat as may overcome the ordinary free will of a firm man, or whatever the nature of the threat, if it is made with the intention mentioned in the section, it is an offence.’”

15.In respect of her first finding, the Magistrate stated in the Case Stated the following :

“First element: Whether the Respondent had made a threat to injure PW1

53.      The words being used by the Respondent were captured in the video (P5A) which were ‘mess you up’ or ‘disturb you’ or ‘搞’in addition to some foul language.  The word ‘mess’ or ‘搞’ used by the Respondent was ambiguous.  Apart from pointing his finger, the Respondent did not do any other act.  There was not enough such as a more definitive gesture or action or the use of weapons to reinforce the threat to support that the Respondent meant to injure when he made the utterance. 

54.      Further, I did not think that the reference to having taken photos as (add) anything to assist.  The Respondent was merely emphasising that he knew who PW1 was, that he recognised PW1 as someone who had filmed him up-close and angered him. 

55.      Also, the Respondent had used the words (搞) ‘to disturb’ in the VRI when he was describing the actions of PW1 in taking close-up photographs of him (佢成日跟住我，我咪認識佢囉，佢成日搞我，咪認識佢囉) so this supported the contention that this word can mean many things.” 

16.The actus reus of the offence consists of three different means: threaten other person with any injury to the person, reputation or property of such other person.  The Magistrate found the word “搞” or “mess” ambiguous in the sense that without more, she could not be certain that the Respondent would resort to inflicting injury on X, as it was particularized in the Particulars of Offence.  In addition, the Magistrate also relied on the answer given by the Respondent as recited at paragraph 55 of the Case Stated. 

17.It was contended by the Appellant that the utterance “I will definitely mess you up” amounted to a threat with injury and that the Respondent had exacerbated or intensified that threat by saying “I have fxxking taken photos of you”.  The Appellant argued that the Magistrate’s finding that the word “搞” or “mess” was ambiguous and did not amount to a threat was perverse. 

18.The word “搞” or “mess” has many meanings depending on the context of its use.  In ordinary daily use, there are different ways and means to mess one up, from the most civilized act of initiating court proceedings to the unlawful deed of causing serious physical injury.  The spectrum can be very wide.  The utterance concerning X’s photo being taken, in the circumstances of this case, reinforced the threat beyond simply recognition or identification.  After all, the Respondent knew X as he had been followed by X over the years.  The Respondent no doubt knew where and for whom X had worked. Therefore, the logical inference must be that X’s photo would be passed on and / or used by somebody other than the Respondent for X’s photo would hardly be required for initiating court proceedings.  The Magistrate’s finding that the Respondent was stating nothing more than he knew X, cannot be supported. 

19.The Appellant also contended that during his interview with the police, the Respondent told the police that “he would not have the idea of really employing a triad society to disturb him or whatever (唔會諗到話真喺用黑社會搞佢或者嗰啲咩)”, hence the connection of the word “搞” or “mess” was not ambiguous but that the Respondent would find a triad society to mess X up.  I have great difficulty in following the Appellant’s logic in suggesting that a denial / rejection of a proposition by a suspect could be turned into an admission / confession.  If, without more, such a manoeuvre is permissible, the demarcation between exculpatory and inculpatory statements made by a suspect during police interview would become indistinguishable and interchangeable.  The consequences would be far-reaching.  In any event, that does not detract from what I have said above concerning the different ways and means in messing one up.

20.In this case, the Particulars of the Offence confined the prosecution’s allegation to X’s physical injury.  It was formulated in such a way, I believe, because of the fact that X had subsequently consulted a psychiatrist for his mental stress. Since the Magistrate was not satisfied that the utterance made by the Respondent was the cause of the mental stress, that finding, together with my views stated above, marks the end of the prosecution case.  In my assessment, the reasons put forward by the Magistrate in her finding in respect of the first element of the offence could not be said to be perverse or that no reasonable magistrate could have come to such a determination.

21.In respect of her second finding, the Magistrate stated the following: 

“Second element: Whether the Respondent had the intention to alarm PW1

56. I found that PW1 was not alarmed by what were said which supported the finding that a man of ordinary firmness would not be affected. I also found that it was probable that the Respondent’s words were wild and whirling words and he blurted them out without the requisite intention.

57. I had to consider whether the threat was of such a kind that may overcome the ordinary free will of a firm man and this in turn would be affected by whether PW1 was in fact alarmed. I did not find that PW1 was alarmed for the following reasons:

(i) PW1 wrote various letters (D4 to D7) to the DOJ and the content of the letters showed that he was a person with a lot of grievances and dissatisfaction. PW1 harboured animosity against a number of ‘black hands and evildoers’ and he was frustrated about his work. He had complaints about different government departments and he was dissatisfied with the DOJ as he viewed them as being biased against his newspaper. A lot of these grievances expressed by him in the letters were unrelated to the incident involving the Respondent. PW2 was called as a factual witness and he was not giving expert opinion evidence on the cause of PW1’s illness. I found that other factors could have been at play leading to his psychiatric symptoms. I cannot say with any degree of certainty on the evidence that his psychiatric symptoms must have been due directly or indirectly to the incident on 4 June.

(ii) The videos (P5) showed that PW1 was smiling and laughing after 1^st scolding incident. Although I accepted that sometimes people tried to ease a situation and calm others down by acting casually or smiling to diffuse a tension, I did not believe that a genuinely frightened person would be able to feign laughter with such a big smile in the present situation like PW1.

(iii) Further, after the three scolding incidents, PW1 said ‘Ai, why so grumpy’. PW1’s tone and manner were trivialising and almost condescending and obviously not something one would say in order not to incite others or try to calm the situation down. It showed that PW1 was not taking the so-called threat seriously, treating it as a joke and even mocking the Respondent. I did not believe that this was the reaction of a man who was genuinely scared.

(iv) There were many people in Victoria Park and police were also present. PW1 also knew that PW3 was filming the incident. It was not a situation where the Respondent and PW1 were alone in a dark corner or cried for help would go unheard.

(v) After the scolding incidents, PW1 continued to film the Respondent which was captured in the videos (P3C and D3(1)). The videos showed that PW1 had zoomed in to do close-ups of the Respondent multiple times. A person who had just been alarmed by threats, especially threats warning him not to shoot so closely would not act in this way.

58. I also found that it was probable that the Respondent’s words were wild and whirling words and that he blurted them out without the requisite intention.

59. First, this case was similar to the case of Kwan Sing Kit where the two persons involved in this case had a lot of history. The Respondent and PW1 obviously had long held grudges between them. The evidence showed that PW1 and the team working under him did follow the Respondent very closely for a number of years before this incident occurred, sometimes filming in close proximity, following him non-stop for certain periods, at times creating dangerous situations. The Respondent clearly viewed this as an invasion of privacy and a nuisance. There must have been friction and conflicts whether spoken or unspoken between the Respondent and PW1 over the years.

60. Second, the animosity and ill-feeling between PW1 and the Respondent can be shown in PW1’s letters to the DOJ, also from his demeanour, attitude and evidence in court despite the fact that he tried to downplay it. It was clear that the provocation at play which triggered the incident did not happen on that particular night but had built up over the years. It was significant that the act of scolding in this case happened at Victoria Park when a largescale event was taking place. There were many people present, including members of public, reporters who were filming with cameras and police at scene.

61. At the time of scolding, PW3 was standing right in front of PW1 and the Respondent and he was filming only 2 metres away. From the videos (P5A and P5B), it can be seen that when the Respondent was scolding PW1, PW3 was taking photographs and filming the incident. The Respondent knew that he was being filmed when he scolded PW1 as he looked directly into the camera which was captured in the video (P5B).

62. Third, the Respondent’s demeanour was angry and his voice was loud but these were not decisive factors. It was because there was loud music in the background so the Respondent had to speak loudly in order to be heard. The Respondent had scolded PW1 a total of three times as shown in the videos (P5A to P5C) which suggested that the scolding was not well thought out, planned or premeditated. If it had been planned, he would have made the threat and then left. Instead he turned back two times to scold some more which suggested that this was an instinctive outburst or scream. All of the above points to the Respondent’s act of scolding PW1 to be that of a man who had temporarily lost his temper and control uttering the words out of impulse and fury and frustration.

63. I found that the Prosecution had not proved the charge beyond reasonable doubt and that the Respondent be acquitted of the charge.”

22.I have difficulty in understanding the first sentence of both paragraphs 56 and 57.  It seems the Magistrate said in both paragraphs that (i) X was not alarmed, hence a man of ordinary firmness would not be affected and (ii) an ordinary man would not be affected, hence X was not alarmed. With respect, the approach adopted by the Magistrate seems to be going in circle and did not properly apply the legal principle stated in Lo Tong Kai. 

23.There are the subjective and objective considerations in the mens rea of this offence: the first one, being a subjective one, is the intention of the person making the threat to cause alarm to the person whom the threat is made. The second one is an objective test in that whether the threat is of such a kind that a person of ordinary firmness will be affected even though the recipient of the threat is not alarmed.  As McMullin J continued:

“Whether the words are uttered in the intended recipient's presence, or in his absence and reported to him later, or else not reported to him at all, in all cases of such utterance the questions of the intention with which the threat is made and of the effect which it has produced upon the person to whom it was made or would be likely to produce on a ‘firm man’ are the relevant questions and they will fall to be determined by reference to the particular circumstances affecting both the persons involved at the particular time when the words were spoken.”

24.This may perhaps explain the commentary “The question whether a threat amounts to a criminal intimidation or not, does not depend on the nerves of the individual threatened;”. 

25.A triad member who presented a threat to a shop owner in collecting protection money obviously intended to cause alarm and would do so to citizen with ordinary firmness.  The same utterance, however, would have little effect on an undercover police officer who was posed as the shop owner in investigating triad activity at the time.  Had the undercover police officer been the intended recipient of the threat, the triad member would still be guilty of the offence. 

26.The Magistrate spent a great deal of effort on explaining why X was not alarmed.  Given the words uttered and the actions taken by X shortly after the incident, in particular X’s effort in continuing his filming, it was open for the Magistrate to find that X was factually not alarmed.  However, given the fact that the Respondent, a prominent businessman with ample resources, had repeatedly stated that he would definitely (not that he would) mess X up twice, together with the threat that X’s photo had been taken, it may likely be the case that any people with ordinary firmness would be alarmed.  Alarmed in the sense that one might not necessarily be reporting the matter to the police immediately but at least would give thought to whether the Respondent would actively and definitely carry out the threat and the ways and means in which it would be carried out. 

27.Further, the Respondent had not returned only once but twice to scold X and given the fact that X had not committed any provocative acts between those scolding incidents, that together with all of the above, might suggest that the utterance could not properly be described as “wild and whirling words”. 

28.Putting aside her conclusion on the first element, the Magistrate erred in law in approaching her second element of the offence in that she had amalgamated the two considerations into one and placed too much emphasis on whether X was indeed alarmed by the Respondent’s threat in coming to her conclusion.  In my view, the way she arrived at her second finding was flawed and could not be supported. 

29.In order to succeed, the Appellant nevertheless must prove both the Magistrate’s findings were wrong.  Since the Appellant is not able to prove the Magistrate’s first finding was so perverse that no reasonable magistrate could have come to, the appeal therefore must fail. 

30.Appeal is dismissed. 

Ms Priscilia Lam, Counsel on fiat, for the Department of Justice, for the Appellant

Mr Peter Duncan, SC leading Mr Lawrence Hui and Mr Ernie Tung, instructed by Robertsons, for the Respondent 

[1] [1977] HKLR 193